Wednesday 13 July 2016
Children and Social Work Bill [HL]
Committee (5th Day)
Relevant documents: 1st and 2nd Reports from the Delegated Powers Committee
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 20: Social worker regulations
135B: Clause 20, leave out Clause 20 and insert the following new Clause—
“Regulation of social workers: General Social Work Council
(1) Her Majesty must by Order in Council set up a body to be known as the General Social Work Council, for the purpose of regulating social workers in England.(2) The General Social Work Council is to have responsibility for the following matters—(a) keeping a register of social workers and of people who are undertaking education or training to become social workers;(b) restrictions on practising social work and using titles related to social work;(c) professional standards in relation to social work;(d) education and training for social workers and those training to be social workers;(e) discipline of social workers and fitness of social workers to practise;(f) appointing advisers on the regulation of social workers;(g) the publication and sharing of information relating to the regulation of social workers;(h) cooperation with other bodies in respect of the regulation of social workers;(i) the charging of fees in connection with the regulation of social workers;(j) advising the Secretary of State on the creation of offences related to the regulation of social workers; and(k) consultation about the regulation of social workers.”
My Lords, Amendment 135B seeks to replace the existing Clause 20 and much of Part 2 of the Bill with a new clause that establishes a new general social work council as an independent regulator of social workers accountable to Parliament through the Privy Council. This amendment needs to be seen alongside Amendment 135C, which seeks to set up a new social work improvement agency, and will be moved by the noble Lord, Lord Hunt. It is no accident that both these amendments have the same names attached to them. We all start from a totally different position from that of the Government on social work regulation and improvement, as I think was very clear at the briefing meeting on Part 2 held last week. That is why I enlisted the help of the clerks in producing this amendment, and I am very grateful to them for their efforts.
The purpose of Amendment 135B is twofold. First, it would separate the work of regulating social workers from improving their development. Secondly, it would make the regulation of the social work profession independent of Ministers, as is the case with all other health and care professions. Under Part 2, the regulatory and improvement functions are combined. I think this totally misunderstands the function of profession regulators, who are there to protect the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct and competence. Regulators are not there to secure improvement to a profession’s training, practice or continuing development. Those functions are for others. The noble Lord, Lord Hunt, and others will say more about this second role when we come to the next amendment. All I would say now is that muddling these two separate roles is highly likely to produce a muddled and less-effective regulator. The former General Social Care Council, before its abolition by the coalition Government, was criticised for having an unclear remit covering both regulatory and improvement functions. A review of the Nursing and Midwifery Council in 2012 by the Professional Standards Authority criticised that council for increasingly seeing,
“its role as supporting the development of nurses and midwives beyond ‘fitness to practise’ and so had strayed into trying to provide a broader professional leadership role”.
Combining regulatory functions with those of professional development distracts people from the main purpose of a regulator, which is to protect the public by upholding standards. With the Bill in its present form, the Government are doing just that. They are repeating the failings of the General Social Care Council, which they abolished, and are not learning the lessons from the regulator oversight work of the Professional Standards Authority. The likely outcome is muddle and delay in the important fitness-to-practise work of a regulator that protects the public from unsatisfactory professionals.
The other major shortcoming of Part 2 of the Bill, as drafted, is that it could well lead to the Secretary of State exercising direct control over social workers. This can only jeopardise their professional independence and lead to a loss of public and judicial confidence in the independence of social workers. They could quickly be seen as agents of the state. This interpretation can most easily be avoided by the new regulatory body being independent of government but accountable to Parliament through the Privy Council. This amendment does just that, and has the added advantage that it avoids removing social workers’ regulation from the oversight of the Professional Standards Authority and retains the position it shares with other care professions. This will ensure the effectiveness of the regulation of social workers.
I recognise that the same effect could be achieved by keeping the regulation of social workers under the aegis of the Health and Care Professions Council, which would certainly be a little less disruptive and would avoid the cost of change. However, I can see the merits of the Government providing social workers with their own regulator and that that might enhance the standing of social work. The amendment provides for this. I hope the Government can see the force of the arguments for separating the functions of regulation and improvement, and for separating the governance of the regulator from too close a relationship with the Secretary of State. I hope it will be seen by the Government and the Minister as a reasonable compromise. I beg to move.
My Lords, I added my name to this amendment because I was moved to do so, particularly by the British Association of Social Workers, which wrote saying that:
“We are not opposed to exploring new social work regulation options. We support steps to improve accountability of social workers, enabling them to show increasing specialism and skill. But we are opposed to these proposals that concentrate government control and that contain no incentive for the profession to lead in setting standards and developing its self-governance”.
In other words, it is not averse to regulation and it is all in favour of maintaining the independence of that regulator and separating him or her from the governance that is proposed in the Bill.
This is the second time in my life that I have supported an initiative in which my noble friend Lord Warner was involved. When I took over as Chief Inspector of Prisons in 1995, the control of young offenders was entirely in the hands of the Home Office, and it was an absolute disaster. They were treated badly, their conditions were appalling and nobody was taking an interest in the conditions and treatment that they received in the various establishments. Then came the Youth Justice Board—proposed and led by my noble friend—and there was immediate transformation. The merit of this amendment is not only that it has come from someone who clearly knows the profession because of his past experience; it also reflects both the practicalities of regulation that is required and has the support of the whole profession, which the Bill clearly does not.
My Lords, I have also added my name to this amendment, and to Amendment 135C in the next group, which we will come to in a moment.
I really think the Government have some questions to answer. Why is this new regulator needed? The Minister might answer by saying that having its own regulator would add to the status of social work. That is a perfectly decent answer, but not one that is totally under the thumb of the Secretary of State. Perhaps the Minister could tell us what the cost of creating this new regulator would be. The NSPCC is concerned about the danger of it creating a two-tier system of statutory and non-statutory social workers. I wonder if the noble Lord can answer that. What is the justification for putting regulation and improvement together? That question was very ably outlined by the noble Lord, Lord Warner. Why does this health and care profession have to be under the skirts of the Secretary of State? While I am about it, which Secretary of State are we talking about? The Bill does not say. Perhaps I should ask which woman it will be.
Many of us feel that if social workers were to become directly regulated by the Government, that would further weaken the trust—which is already fragile—between them and Whitehall. As the BASW said in the briefings we have all received, the Bill does nothing to address some of the real problems that affect social workers.
There is a real issue here because we have a significant shift of significant powers. It is a matter of principle. Why should social workers be the only profession in the health and care sector to be regulated by government? Nursing and medicine are not. They are public service professionals using their professional skills and judgment to make vital decisions about vulnerable members of the public. Bringing regulation under government control risks sending a demoralising set of signals to the sector. Loss of independence is likely to be seen as evidence that social work is really not up to it and needs a very close eye kept on it. That seems odd because it is at odds with what Ministers have been saying recently. They have been saying that social workers have been disempowered by command-and-control-type initiatives from central government and should be trusted to exercise their professional judgment and respected as professionals who undertake very complex work. Hear, hear! I agree with that. Why seek this government stranglehold now?
My Lords, I remind the Committee that I have form in this area as the person who chaired the committee that set up the General Social Care Council, as the first chair of the General Social Care Council and as the chair of the Professional Standards Authority which oversaw the demise of the GSCC and the transfer of regulation to the HCPC. There are, as we know, terrible problems facing social work and social workers at the moment, so to be discussing these structural changes now is rather like rearranging the deckchairs on the “Titanic”. That said, I support the idea of getting very much more independence for the regulator of social work. The separation between regulation and improving standards is important. That is a very well-established principle. The Department of Health is promoting that principle as we speak, building on the Professional Standards Authority’s paper Rethinking Regulation. All this applies to other health regulators, as Ministers well know.
Independence is extremely important. The oversight of the current regulator, the HCPC, by the Professional Standards Authority—I am no longer its chair, but I still declare an interest—is a vital part of assuring not only its independence but its performance by scrutinising its fitness-to-practise cases and referring them to the High Court where it has failed to protect the public. I remind the Committee that the purpose of regulation is to protect the public.
I wonder whether the Minister has considered the disruption element of the Government’s proposals. The HCPC has only just finished, this month, dealing with the legacy fitness-to-practise cases it inherited from the General Social Care Council. If a new regulator is set up, it will have to deal with the legacy cases of the HCPC, which will mean two different systems with two different sets of staff and consequent expense. Cost is another area that we all have to be very concerned about with these issues, and I raised it at Second Reading.
My Lords, we are fiddling while Rome burns. I have spoken this week to a social worker, a director of children’s services, an academic and a head of a voluntary organisation, all of whom are in total despair about the state of social care. I know it is the Government’s wish to improve that. I am sure that that is where the heart of the Minister in the other place and the heart of the Minister here are. However, I am not sure that they have found the right route forward.
Certainly, the Local Government Association—I declare an interest as a vice-president—feels that there needs to be a balance between greater regulation and encouraging experienced social workers to remain in or return to the profession. I have not yet seen the report from the other place about the movement of social workers but I have read the press report, as I am sure everyone here has. That shows a huge movement. I know that there are vast vacancies and that inexperienced agency workers are taking on these roles with dire consequences.
We know that good social work can transform people’s lives and protect children, and I know that that is the aim of the Government. My concern about what the Government are trying to do at the moment is that this will divert resources and energy. We have got to focus both of those directly on the front line of social work so that we do not leave social workers in local authorities, and sometimes in voluntary organisations, taking the responsibility for the failure of the Government and their authorities to get regulation and professional development right.
We have all been concerned because of Ofsted reports. I have been looking closely at the way that Ofsted works, and I support it in many ways. However, it never takes into consideration the amount of resource that an organisation has. We have occasionally had examples of local authorities that are able to produce more on less resources. However, it is only a handful of authorities. A vast number of authorities are struggling and therefore worrying about what they are going to do. This is about making sure that we have a really good regulator who can assess whether the social worker or the structure in which they are working is at fault.
I have looked closely at how those resources are used. The director of social services to whom I spoke this week simply said, “All I am going to do, because I care about my services, is raise the bar on Section 17”. So we will have more children with greater difficulties going to a higher level of need, and more children below that bar—but again with a higher level of need —who will not get a service.
Unlike some of my colleagues, I do not feel that I have the answer. We all care desperately about social work as a means of helping families in need and we have to find the right answer. However, it is clear that many people feel that we have not reached that point yet.
My Lords, I add my support to the amendments in this group, and I wish to make two points.
First, I endorse the sentiments of the noble Baroness, Lady Howarth, about whether it should be a priority at the moment to put so much time and energy into setting up a new regulator when the profession, and the front line in particular, is so stretched. I was taken with the report that I saw on the BBC this morning about the Commons Education Committee which said that urgent action is needed regarding social workers’ case loads. It drew attention to high drop-out rates leading to increased workloads. It said that these problems must be tackled, particularly the endemic retention problems in the profession. These are the issues that are crying out for urgent attention, and that is my first concern about diverting our attention from them.
However, when it comes to the proposals that the Government have set out to bring social worker regulation under government control, I very much share the concerns that have already been voiced about the lack of independence in these proposals, which is extremely problematic. As I said, I support the broad concept of a bespoke registration body for social work and of social work having its own regulator, but a regulator needs to do a delicate balancing act and being government controlled makes that very difficult. It needs to balance the need of the public for accountability, the requirements set, quite legitimately, by government, the interests of the profession and the organisational requirements of employers, and any regulator needs to be independent in carrying out that balancing act.
Therefore, my concerns are the ones that have already been voiced. This proposal has come without any prior consultation or dialogue with the social work sector so far. It has not had an opportunity to feed in. As my noble friend Lady Walmsley said, it would leave social workers in a very different position—unique indeed—among health and social care professionals when we should be doing all we can to enhance the status of the social work profession and put it on an equal footing with other health professions.
I also share my noble friend’s view that this proposal will further weaken trust between the profession and Whitehall. In addition, it could well have a negative impact on the extent to which social workers feel real ownership of the very necessary and important improvement initiatives that are around. Indeed, it could also stifle innovation—something that we have discussed very thoroughly. It is very important that we have innovation. Finally, it could well lead to further demoralisation of social workers when, as I said at the beginning, there are currently well-documented problems with recruitment and retention in parts of the workforce. This is simply not the time to go about these reforms.
My Lords, many noble Lords have already spoken about many of the issues surrounding these proposals, and I want to focus on the key one of independence, to which all speakers so far have referred. I thought it would be worth while reading the policy statement issued in June about regulating social workers. It was quite revealing because it demonstrated that there was uncertainty at the heart of government about which road to take—whether the regulator should be independent or closer to government. Paragraph 48 says:
“In considering what form the new regulator should take we have considered whether a new fully independent regulator should be established”,
and the next paragraph goes on to discuss the pros and cons. One argument against it is:
“The establishment of a wholly independent body would inevitably take significant time as leadership and infrastructure are built from scratch and would, we think, be more expensive than the alternatives”.
The decision about the independence of the regulation of a profession as important as social work, which from time to time has the duty of challenging the state, should be based on more than simply time and expense.
The statement, in further paragraphs about the body’s establishment, continues:
“Government is proposing to establish an executive agency”,
which it says will be distinct. Further, it says that:
“Government recognises that professional regulation for many other professionals is organised on a more independent footing”,
and therefore propose that it,
“should be kept under review”.
To me, that says loud and clear that the Government are undecided. On the one hand, they know that it ought to be independent; but on the other, they want to bring it closer to government. The danger is that we will end up with social work being seen as politicised according to the colour of the Government who are in control. That is a very dangerous path to take. I urge the Government to look through the arguments that were made in their own policy statement and to come down on the side of independence rather than cost and expense.
My Lords, I very much welcome the briefing that we received from Ministers last week on the questions we are debating. I was also impressed with the vision set out by the noble Lord, Lord Nash, and his ministerial colleagues about the need to achieve a high level of social work, with a heavy emphasis on improving practice. So there is no disagreement with us on the aims that the Government have set out. I applaud them, as they are absolutely right to focus on the quality of social work practice. Our concern is the form that these aims take in the Bill. Not only will it not do the job but, as the noble Baroness, Lady Howarth, and my noble friend Lady Pitkeathley have suggested, it will detract from the real effort that needs to be put into encouraging, supporting and helping social workers to improve what they do.
Noble Baronesses have already raised the Education Select Committee report. What is striking is its reference to a vacancy rate of “17% of the workforce”, while the Government’s own figures,
“conceded that there were retention concerns, with the average career in social work lasting less than eight years, compared to 16 for a nurse and 25 for a doctor”.
This is not the time to be messing around with regulation when it is working in a perfectly satisfactory way at the moment.
There are five concerns about the way that the Bill has been drafted. First, we still do not understand why, within two years, there has been a complete reversal of government policy. Why has there been that reversal? I have yet to hear one proper explanation for why that has happened. Secondly, why was there no proper consultation or discussion with anyone in the field about the changes? Thirdly, why is regulation being confused with improvement? The fourth issue, which is ultimately the most important, is why the Government are setting themselves up as the regulator of a profession, while the fifth is parliamentary. It is about the use of regulations in this Bill, rather than the proper use of primary legislation.
On the reversal of policy, the Care Standards Act 2000 established the General Social Care Council while, in parallel, a College of Social Work was established. I think that none of us would say that those organisations always covered themselves with glory, but, towards the end of its life, it was quite clear that, under its last leadership, the General Social Care Council was pulling its act together. There is no doubt about that at all. I opposed the transfer of social work regulation from that body to the HCPC for the very reasons that the Government now use to justify the change in policy. Paragraph 38 of the policy statement says:
“The system that the HCPC operates is designed to maintain appropriate minimum standards of public safety and initial education, rather than raising standards”.
Of course—that is what the HCPC exists to do. The Government were told that when we debated it. They ignored it and went ahead with this proposal. So why this sudden reversal of policy?
We move to the question of the college. The Government said when the plug was pulled—and it only gave up its life in September of last year, less than a year ago—that the college’s demise was due to it failing: it was not attracting enough registrations. Why, nine months later, are they essentially talking about re-establishing, in broad terms, what the college was there to do? They have not yet explained how on earth this new body can be viable if the College of Social Work was not viable nine months ago. The DfE has a reputation for being a department that is not much involved in Whitehall, but it seems to have no memory whatever of what it was seeking to do in this field going back not five or 10 but two or three years ago.
On consultation, I have just one question. The chief inspector of social work for children said at the meeting last week that there had been consultation. We have had a letter—which has already been quoted—under the auspices of the British Association of Social Workers, on behalf of other social work organisations, which says that this proposal was made,
“without any prior proper consultation or dialogue with the social work sector on the content of the Bill”.
What discussions did take place, or was it simply an informal phone call from the chief inspector telling BASW what was going to happen?
I move to the issue of why regulation is being confused with improvement. Last week, Ministers were talking about improvement, not regulation. We know that all around the world there is a generally accepted principle that regulation is separate from improvement. The reason is very simple: regulators in general are about maintaining public safety and they are punitive. A punitive body cannot be the same body to which people then open their doors as an improvement regime. It is very simple. Any of us who have been subject, certainly in the health service, to the tender mercies of regulators will know that we approach them very differently from the way in which we would open the door to an improvement agency. It is very different. Different people do the things that need to be done within those respective bodies.
If the noble Lord, Lord Prior, were here he would say, “Ah, but we have created NHS Improvement, which brings together an improvement agency with financial regulation”. But any insider knows that NHS Improvement is having the devil of a job to run this—it is having to run two different systems with different sets of staff and Chinese walls between them. That is the very reason you cannot bring improvement together with regulation. The PSA, an excellent body, formerly chaired by my noble friend Lady Pitkeathley, has made it very clear in the briefing we have had that there is a distinct difference, and a need to have a separation between regulatory and improvement activity. I know that this Government seem to have a problem with evidence and experts, preferring to rely on anecdotes as a way to make policy, but when you have an overarching regulator in the health and care field, surely you listen to it when it makes such a clear and unequivocal statement.
Of all the provisions in the Bill, the one I would most like to remove is the one that designates the Secretary of State as the regulator of social workers. Why should that be? First, it is a direct threat to the professional autonomy of a profession. In my view, that should always be resisted. Frankly, I am as concerned about the precedent it sets as I am for the social work profession. If the Government were proposing to take over the direct regulation of doctors we would not be in Grand Committee, we would be in the Chamber and the Government would find themselves up against the most tremendous opposition. We know that social workers do not have that kind of support; it is a vulnerable profession, so we are in Grand Committee and no more than 15 people are debating this issue. But the principle is exactly the same.
Why is it important that regulators should be independent of government when it comes to individual professions? I do not want to overstate or exaggerate, but I had a look at the work of the British Medical Journal in 2014, which had a very interesting article on the relationship between totalitarian regimes and the medical profession. This was backed up by a BMA publication going back to 1992. It was a question about why doctors participated in human rights abuses. The BMA concluded that one of the potential reasons for it was the bureaucratisation of the medical role. Of course we do not have a totalitarian Government, but this principle that a Government could regulate doctors is so important that it would be resisted till the cows come home.
My argument is this. I do not think that social workers are any different from doctors. I think that if we were to pass this provision we would be creating an awesome precedent for the regulation of all professionals in the future. Of all the things in this Bill, the one thing I wish to remove is that. We surely must resist it.
I turn, finally, to the use of regulations. I have never seen such a Bill. It was clearly drafted in a hurry, but the use of regulations is wholly unacceptable. The Government claim that that is fine because all they are doing is essentially following the Section 60 process in relation to health regulators. First, however, the Section 60 orders were based in original primary legislation before social care was brought into the compass of this regulatory arrangement. Secondly, we have precedent. The 2000 Act of blessed memory created the General Social Care Council by primary legislation. I see nothing —no argument at all—to suggest that the Government cannot adopt the approach taken there: to set out the general principles in primary legislation, in addition to Schedule 1 to the Act, which set out the establishment of the body.
The Constitution Committee and the Delegated Powers Committee of your Lordships’ House have both said that the way in which the Government drafted this Bill in relation to Part 2 is wholly unacceptable. The Government have already responded to the Delegated Powers Committee. Remarkably—because I cannot remember when a Government have so ignored a recommendation from the Delegated Powers Committee —the Government have essentially said that they intend to plough on. The only concession they are giving, as the noble Baroness, Lady Pinnock, said, is that in the long term, they might transfer regulation to a more independent body. That really will not do.
We have time between now and Report. I hope the Government will think again and start to open up a consultation with the sector. They even have time for a very quick White Paper to see how, if they are determined to have an independent regulator, it could be established in primary legislation as a wholly independent body. I hope the Government will recognise that there is extreme unhappiness about the approach they have taken.
My Lords, I am grateful to all noble Lords who have spoken in this debate: the noble Lords, Lord Warner, Lord Ramsbotham and Lord Hunt, and the noble Baronesses, Lady Walmsley, Lady Tyler, Lady Howarth, Lady Pitkeathley and Lady Pinnock. They have made a number of extremely important points and I want to give them due consideration and attention.
I am also mindful of the comments made earlier today by the Education Select Committee, which were referred to by a number of speakers. Noble Lords have my firm commitment that we will carefully study the recommendations of the committee and consider them as we go forward.
In order to cover all the concerns raised by noble Lords, I propose to speak to Clause 21 and, alongside it, address the amendment tabled by the noble Lords, Lord Warner, Lord Ramsbotham and Lord Hunt, and the noble Baroness, Lady Walmsley, on the establishment of a new independent regulator—the general social work council. I will then speak to Clause 20.
Clause 21 concerns the appointment of a regulator of social workers in England. Before I speak in detail about the clause, I want to address head on issues raised by the DPRRC. The committee raised concerns in its recent report that this legislation does not specify who will act as the regulator, leaving it, instead, to be addressed in secondary legislation. The Government are proposing that Secretaries of State will initially exercise regulatory responsibility for social workers. They will do this in practice by setting up an executive agency to regulate the profession. I will of course set out the arguments in favour of this approach later in this debate.
On the specific issues raised by the DPRRC, I hope I can reassure this Committee by confirming that I have written to the DPRRC to commit that the Government will bring forward amendments to the Bill specifying clearly that in the first instance regulatory responsibility will be exercised by Secretaries of State.
In addition, to address concerns raised during debates on the Bill about the independence of the new regulator, we have proposed a formal review point. The Government have committed to review and consult three years after the regulator is fully operational on whether it should be moved to a more independent footing. To this end, we propose to retain the power in the Bill to transfer regulation to another regulator in the future. It is of course not unprecedented for a regulator to be established through secondary legislation, and that has become quite common practice. Indeed, the current regulator, the HCPC, was itself originally established through an Order in Council.
I now turn to the key issue of why the Government believe that reform of social work regulation is vital. Much has been said here today and throughout the passage of this Bill about the excellent work that social workers do, often in very challenging circumstances. We all know that social work is a complex and challenging profession which has the power to transform lives. Every day social workers deliver critical services for the state, safeguarding vulnerable children and adults with care and support needs. They deal with the most complex and fraught situations that require the highest levels of skill, knowledge and capability.
In recent years a series of high-profile incidents have seen the profession face higher levels of scrutiny and challenge. Through Ofsted inspections and from the serious cases we all know about, such as those involving Daniel Pelka, Hamzah Khan and the children exploited so terribly in Rotherham, we know that excellent social work practice is not found consistently across the country. Although such cases are always complicated, the quality of the workforce and its professional and leadership capability have been common factors in all. That is why the Government have embarked on an ambitious programme of reform, aimed principally at improving the standards of practice and the systems that support all social workers, as well as improving the standing of social work as a profession.
I assure noble Lords that the Government have taken action to support the profession in recent years. To bring vital social work expertise to the heart of government, we appointed two chief social workers. I know that many noble Lords present today have had the opportunity of meeting them on a number of occasions and have been very favourably impressed. Through the chief social workers, the Government have published statements setting out for the first time the essential knowledge and skills that all social workers need.
We have also made significant investment in the training of our new social workers, investing over £700 million in both traditional routes into the profession and fast-track alternatives since 2010. We have funded four new teaching partnerships and will be supporting more, bringing employers and educational providers together. They are developing high-quality training provision and supporting continuous professional development. To support the critical transition from training into practice, we have established the Assessed and Supported Year in Employment.
We are also offering our support to develop practice-focused career pathways. We will achieve this through our proposals to assess and accredit child and family social workers; supporting the development of leadership roles in both adults’ and children’s services; and supporting specialist areas such as in mental health social work practice. This will reap a dual dividend: supporting ever-better standards of practice but also, crucially, giving social workers clear progression routes which can keep them in the profession and in practice.
I want to take this opportunity to address the question of social worker retention, an issue raised by the noble Lord, Lord Hunt, and the Education Select Committee. This is of course a complex problem and needs a multifaceted solution.
The quality of the environment in which social workers operate can be a key determining factor in recruitment and retention. This includes: the quality of supervision and wider leadership and management; opportunities for development and career progression; workloads and levels of bureaucracy; and organisational culture. Clearly there is a responsibility on employers here, but government action is also contributing to tackling these issues.
Much of our wider reform agenda seeks to address a number of these points head on. For example, we have evidence that we are attracting people into social work through Frontline and Step Up who would not have considered it a career option previously. Efforts to improve initial training through fast-track programmes and teaching partnerships will lead to more-confident, better-trained social workers who are better able to cope with the demands of front-line practice. In children’s services we are supporting better leadership and supervision. Our ambition is that all local authorities will have an accredited practice leader in post by 2020, and we are establishing programmes to develop practice leaders and supervisors. Learning from the innovation programme, our local authority partners in practice and the What Works centre should all help drive improvements through the system.
Alongside this, regulatory reform can make a contribution. Getting initial education standards right will mean newly qualified social workers have the skills they need to cope with the challenges of the role. The establishment of post-qualification professional standards, with the option to accredit those with this expertise, will mean that social workers have clear career pathways and will help to enhance their status. This can only help retention. I hope noble Lords will agree that this demonstrates a clear commitment from Government to support improvements in the profession.
The reforms that I have just set out depend on a regulatory system sharply focused on high professional standards which recognises that standards need to improve and good practice should be promoted. However, we will not be able to achieve the full benefits of these reforms if we do not also have a high level of ambition for the social work profession. It is our contention that the two are complementary, and both are required if we are to create the world-class social care system, with world-class social workers, that we all aspire to. We believe the current approach to regulating the social work profession cannot deliver this.
The current regulator, the HCPC, oversees a model of regulation that is designed to maintain minimum standards of public safety and initial education across a wide range of diverse professions. This approach works well for most of these professions, many of which have strong professional bodies and have been formally regulated for many years. In terms of the current model of regulation, it surely cannot be right that, as Sir Martin Narey stated in his report:
“So we have a situation where employers cannot be confident about the abilities of newly qualified social workers, in part because of uncertainty about their raw calibre … there are universities and colleges where entry and academic standards appear to be too low and where the preparation of students for children’s social work is too often inadequate … HCPC argue that the standards set out clear expectations of a social worker’s knowledge and abilities when they start practising. But most of the standards … are general in nature and could be describing almost any professional and, in many instances, non-professional occupation ... the core document, the Standards of Proficiency, does not remotely provide adequate guidance to universities about the skills and professional knowledge required of graduate social workers”.
Professor David Croisdale-Appleby, in his review on social work education, stated that HCPC standards of education and training and its standards of conduct, performance and ethics are set at a low level of quite generic expectation that would be covered by any higher education institute’s own governance regime.
Then why on earth did the Government abolish the GSCC and transfer it to the HCPC when we said at the time that this would happen and had a vote on it? Why do it? We have had no explanation of the change. It was not five or 10 years ago but two years ago.
I will come to that. In its totality of standards, there is very little which is focused on or particularly salient to social work education. The current regulatory model also does not focus on setting professional standards for post-qualification practice. This sets social work at odds with other professions, such as nursing and midwifery, and the current model sets requirements around continuous professional development which are generic and applicable to all the professions that the HCPC regulates. We believe there is clear scope for improvement, and I am glad that the noble Lord, Lord Hunt, agrees.
Everything that the Minister said seemed to relate to social workers in the services for which his department is responsible. Is he saying that all these same considerations apply to social workers who work with adults? If he is, let us see the evidence. None of us has seen this evidence, and I have certainly not heard that there are these kinds of concerns about social workers who work with adults in a co-operative and increasingly joined-up way with the NHS.
What expertise does the DfE have in relation to the work and performance of social workers working with adults? The Minister has no responsibility for that. His officials have no knowledge or responsibility for this area. Where is the evidence? Does this come from the Department of Health? Where has it come from?
My Lords, I did not get an answer to my question about which Secretary of State it would be. Strangely enough, although Clause 21 refers to “Secretary of State” in the singular, in his response the Minister talked about Secretaries of State. Will he clarify whether we are talking about the Secretary of State for Education and the Secretary of State for Health in agreement? If so, what will happen if they do not agree?
It is clear that the agency will be supported by the DfE and the DH. Both Secretaries of State will be responsible. If they do not agree, I assume we will put them in a room until we have an agreement. Secretaries of State do not initially agree on a lot of things. In answer to the noble Lord, Lord Hunt, the Department of Health is responsible, just as the DfE is responsible for children’s social care. I do not know whether I can say any more at this stage, so I shall go on.
This new regulator will have an absolute focus on raising the quality of social work education, training and practice through setting new and more specific standards. We intend to establish a new executive agency for the regulation of social workers, jointly supported by the DfE and the DH and accountable to the Secretaries of State. I reassure noble Lords that in arriving at this conclusion we considered the merits of a number of different models. We also considered whether the HCPC could strengthen its regulatory framework to deliver the improvements that we want and to make it more social work specific. It is responsible for 15 other professions, and we believe it would require a fundamental shift in its approach to create the model required for social work. It would be likely to involve additional costs and could impact on its ability to regulate the other professions for which it is responsible. We have therefore concluded that at this time we need a bespoke regulator which can bring an absolute and expert focus to standards in social work education, training and practice that the current system lacks.
I know that many noble Lords, including the noble Lord, Lord Hunt, have questioned this approach, given the Government’s wider commitments to regulatory reform of the health and care professions. A number of noble Lords have also highlighted—as the noble Lord, Lord Hunt, has—that the regulation of social workers was moved to the HCPC in 2012. This decision and the decision to close the General Social Care Council were not taken lightly. We believed that it was the right decision at the time, but things do not stand still and, since then, the College of Social Work has also closed, creating a real gap in the representation and professional development of social workers. We have received the independent reports on social work education, which I previously referenced, and have identified continuing concerns about the quality of social work practice in some areas. That is why we think it is right to take a new approach.
However, that does not signal a change in the approach to the regulation of other professions; it is simply about making the right arrangements for social work. The Department of Health remains committed to broader reform of the health and care professions, building on the work of the Law Commission and the Professional Standards Authority in this area. However, it has not yet secured parliamentary time for a proposed public accountabilities Bill to inform wider professional regulation. We are discussing with interested parties how our ambition to simplify and improve the regulatory framework can be taken forward.
The new agency will support improvements across the social work profession by setting higher and more specific standards that go beyond the traditional safety-net approach of many regulations. The agency will set pre and post-qualification standards across practice, education and training, and CPD. It will not be a professional body. We believe this is the right approach for social work. There is no intention to replicate the representative functions of a professional body or membership organisation.
I assure noble Lords that we have, of course, also considered whether an independent regulator should be established. I will set out the key reasons why I believe it is not right to do that at this time. I have already set out the higher level of ambition that we have for our social work workforce: excellent social workers delivering world-class practice. Of course, government has a significant stake in ensuring high-quality social work practice, not least because it delivers vital services for the most vulnerable in the state. There is, however, a notable lack of consensus across the profession as to agreed standards of practice. Various efforts—through independent regulation and the development of the College of Social Work—have, unfortunately, failed to deliver what is needed or to move standards to where they need to be.
There are practical considerations too. Establishing a wholly new independent body will take time, as leadership and infrastructure are built from scratch, and our reform programme is rightly ambitious. The Government have significant resources, and it is right that they bring these to bear to rapidly deliver the reforms that we need. The effective functioning of an independent body requires, we think, a strong professional body. However, the profession has as yet been unable to sustain this, despite the Government investing over £8 million in funding the College of Social Work. I recognise, of course, that many noble Lords have signalled their support for a strong professional body. That was also raised by the Education Select Committee, which the Government also welcome. However, particularly given the recent experience with the College of Social Work, it must be for the profession to develop it.
For the reasons I have outlined, we remain convinced that regulatory reform is needed, but it cannot be addressed simply through the development of a professional body. For those reasons, we believe there is a strong and compelling case for moving the regulation of the profession closer to government at this time. This will allow us to rapidly deliver improvements and to embed a new regulatory system that supports this. I know that this closer relationship is a matter—
As we have not done it, I cannot produce any evidence. However, given that the profession very recently failed to do it—and it seems to follow that it is unlikely suddenly to be able to get its act together quickly—and given the sense of urgency that we have about improving the quality of social work, we believe that if we put the forces of government behind this, we will be able to do it quickly.
I am sorry; I do not understand. Perhaps the Minister can help me. What does that mean? Who will be doing this? Who will ensure that the profession is improving? Who in government will do that? I am sure that it will not be the Secretary of State, so will it be officials—and how much experience do they have—or will there be people in the executive agency who will have experience? It is a serious question because I think it is crucial to know which personnel are going to be responsible for this terribly important task.
We will obviously bring in people from the sector, work with them in the establishment, consult them and make sure that we have appropriate professionals to run it.
However, the moves here to what noble Lords feel is greater government involvement are not wholly unprecedented. It is certainly true that regulation for many other professions is organised on a more independent footing. However, it is also true that it is not unprecedented for government to play a closer role in supporting the improvement of the quality of a professional workforce, such as in the case of teaching through the National College for Teaching and Leadership. It is also worth noting that the regulatory arrangements for social work in Scotland, Wales and Northern Ireland all involve a formal relationship with central government, as, of course, did arrangements in respect of the previous regulator, the GSCC.
The regulator will have a clear focus on protecting the health and well-being of the public and promoting greater confidence in the social work profession. It will do this specifically through developing an approach that focuses on practice excellence and on raising standards from initial education through to post-qualification specialism.
The regulator’s key functions will include publishing new professional standards aligning with the chief social workers’ knowledge and skills statements and setting new, tougher standards for initial qualification. It will also institute a more robust mechanism of testing whether courses meet them and aim to re-accredit providers by 2020. It will also focus on professional standards post-qualification by, for example, setting professional standards for specialist child and family and adult practitioners and accrediting those who achieve them. This will include overseeing the proposed new assessment and accreditation system for child and family social workers. The regulator will set new standards for continuous professional development specific to social work, maintain a single register of social workers and oversee a robust and transparent fitness-to-practise hearings system.
I hope that noble Lords will recognise the scale of our ambition here and agree that these functions will provide for a comprehensive, bespoke regulatory regime. Government, through the structure of an executive agency, will be able to bring its full resources to enable effective and rapid delivery, as I have already said.
I say clearly that the Government recognise that the regulatory framework needs to have operational independence. The exercise of its functions will be fair and transparent. I know that we are due to debate later the need for an improvement agency, and our debates will, no doubt, consider the appropriate role of regulation in raising standards. I will say more on these matters then, if I may. However, let me be clear now that what we propose is a regulatory body which will be focused on the delivery of core regulatory functions. It will not act as an improvement agency, nor will it seek to undertake the functions of a professional or representative body. We make no apology for the fact that in exercising these functions it will be charged with setting and improving standards.
I appreciate that the objective of ensuring public safety through regulation is important, and it will remain so. However, we do not see a clear distinction between public safety and standards. Social work is all about the safety of the most vulnerable in society, and only the highest standards of practice should be acceptable. As I mentioned earlier, the Government have made a public commitment to keep the regulatory arrangements for social workers under review. We will consult the sector after three years to take stock of whether the current arrangements are still fit for purpose. Specifically, we will consider whether the regulation of the profession can then be put on a more independent footing. I intend to bring forward amendments to the Bill to give these commitments statutory force. I hope this will provide some reassurance.
I would also like to touch briefly on the cost. Noble Lords will be rightly interested in the cost of establishing a new regulator, and specifically in whether this will be borne by social workers themselves. I reassure noble Lords that the set-up costs for the new agency will be met by the Government, and we will provide details in the autumn. While social workers will continue to pay a registration fee, we have no plans to raise it. Of course, if fee increases are contemplated in the future, they would be subject to consultation with the sector and registrants at the appropriate time.
I shall now speak to Amendment 135B, tabled by the noble Lord, Lord Warner, and supported by the noble Baroness, Lady Walmsley, on the creation of a new independent regulator for the social work profession in England, the general social work council. First, I warmly welcome the recognition that a new regulator is needed. I note that the intention behind this amendment is to create a new social work-specific regulator. I believe that the regulator we intend to set up will meet this test. It will be bespoke to the profession and, more importantly, it will be created in partnership with the profession.
I also note the range of functions envisaged for the regulator. Again, I hope that I can reassure the Committee that the powers we propose in the Bill and the functions that we propose the new regulator will exercise will deliver the important regulatory functions that noble Lords have specified. While I welcome the intentions of this amendment, I do not agree that establishing a fully independent regulator is the best approach for the profession at this time. I am not seeking to rehearse all the arguments already made nor to set out again the constraints in the current framework. I have addressed these already and would like here to address two further points.
I recognise that concerns have been raised about an executive agency being subject to the political priorities of government at the expense of a professional evidential base. There have also been concerns about Ministers being involved in decisions about the fitness to practise of individual social workers. I say clearly that the Government are committed to promoting evidence-based, professionally-led practice. This is borne out by the reform programmes that we have supported to date. For example, the knowledge and skills statements published by both chief social workers provide, for the first time, clear and concise statements of what social workers need to know. Our investment in teaching partnerships is also bringing employers and educators together. Regulatory reform will allow us to embed this.
The noble Baroness, Lady Tyler, raised the question of consultation. As I already said in answer to the noble Baroness, Lady Walmsley, we are committed to working closely with the sector to develop the details of these proposals. We intend to establish an expert working group to ensure that our proposals build on what has gone before and that the development of the regulator is managed in partnership with the sector.
I can also assure the Committee that the Government will put in place transparent and robust governance arrangements. We are clear that these can be achieved through the agency model. In summary, the agency’s formal governance and accountability arrangements will be set out in a published framework document which will bring absolute transparency and accountability to how the agency is run and decisions are made. The agency’s processes and systems will be governed by a set of regulations scrutinised and approved by Parliament. They will also be subject to wide-ranging consultation with the sector and other interested parties. The Secretary of State will be required to consult on any changes to the regulations and standards as a matter of course. In order to ensure that the new standards for social workers have their full confidence, they will be developed in partnership with the sector. The chief social workers will also be closely involved by lending their expertise and knowledge. These standards will also be subject to full consultation with the sector.
Decisions affecting individuals, such as fitness-to-practise outcomes, will be taken by experts on behalf of the regulator. So, too, will decisions about the accreditation of education and training programmes—another key function of a professional regulator. We are clear that these decisions will be taken at arms’ length from Ministers.
We have also specifically given the Secretary of State the flexibility to provide in regulations for the appointment of a wide range of expert advisers and committees. This will ensure that the agency has the sectoral expertise and knowledge required to exercise its functions effectively. Alongside this, we have been in conversation with the Professional Standards Authority about how it might undertake an advisory role in respect of the new regulator’s functions, particularly in respect of fitness-to-practise arrangements. We will continue to work with the Professional Standards Authority to ensure that we draw on its vital experience and expertise as we further develop the governance and accountability arrangements for the agency.
Before closing, I would like to address Clause 20, which allows the Secretary of State to make regulations to enable the regulation of social workers in England. These regulations will, of course, govern the operations of the new agency. We have published indicative regulations. I hope your Lordships have found them useful and are reassured about our intentions. I recognise the questions raised about the Bill’s reliance on secondary legislation. I hope your Lordships will recognise that there is significant precedent for the approach that we have taken.
We have been mindful of work on regulatory reform undertaken by the Law Commission in 2014 which emphasised the need for flexibility—
I just point out to the noble Lord that the Government have essentially rejected the Law Commission’s work, so he can hardly pray it in aid. He will know that at the ministerial meeting held last week the noble Lord, Lord Prior, made it abundantly clear that the Government were not proceeding with the report. I think it is a little bit much to pray in aid a report which the Government have decisively said they are not going to go ahead with.
As I said earlier, the recent report by the DPRRC agreed that it was not inappropriate for the Government to place the regulation of social workers in subordinate legislation, despite the width of powers being conferred. In respect of our ambition to establish a bespoke regulator of social workers, we believe that delegated legislation remains the most appropriate vehicle for a number of reasons. These include the level of operational detail in the establishment and transfer of regulatory arrangements, the need to regularly review matters such as professional standards, and the mechanics of operating a professional register, all of which, in our view, point to the need to make appropriate use of secondary legislation.
In closing, I reiterate that reforms are needed as quickly as possible. I believe that our approach can ensure a new system of regulation for social workers—designed in partnership with the profession—which is transparent and has the flexibility to meet the needs of this vital profession both now and in the future.
I hope that the safeguards and governance arrangements that I have set out, the commitment to wide-ranging consultation with the sector and a clear point of review will provide the necessary reassurance that the proposed model of regulation is fit for purpose. In view of this, I hope that the noble Lord will be able to withdraw his amendment and agree that these clauses should stand part of the Bill.
My Lords, I listened to the Minister with increasing disbelief and I think that many Members sitting on this side of the Room did as well. I do not really know where to start, other than to say that I am totally unconvinced by his arguments. He and his department simply do not understand the difference between improvement and regulation, and I shall take up one or two points.
He said that fitness-to-practise decisions will be taken by experts on behalf of the regulator. That is what he said. But the regulator takes the decisions—that is why the regulator is set up. It is not some other set of experts but the regulator who takes the decision on fitness to practise, which effectively is often a decision to stop someone’s livelihood as a professional. That is why it is very important.
I found some of what the Minister said extraordinarily strange. He is asking us to take it on trust that there will be a set of consultation arrangements with the professions and all these interests if we just give him the powers in the Bill. That is the nub of what he is saying: “It will all be alright on the night because we are good guys and will consult people”. I might be more trusting of that if I had seen some evidence that the Minister and his department had consulted all these interests before coming forward with this Bill. In my view, one of the best predictors of future behaviour is past behaviour, and I do not see much sign that evidence has been put to the profession. There might have been a chat between the chief social worker and a few trustees out there, but to many of us it does not look like much more than that.
I am astonished that the Department for Education, of its own mere motion, is taking responsibility for the regulation and improvement of social workers who work with adults. There is a major machinery-of-government issue and my starting point is to go to the Cabinet Secretary and ask whether proper processes have taken place within government between these two departments. From the evidence I have seen and heard so far, they have not.
What the Minister may not realise is that we have a body called Health Education England which has powers, given by this Government, to look at the issue of social work training in relation to working with the NHS. The Minister may not realise what an important part of government policy the integration of adult social care with the NHS is and that work is going on in other bits of government to see whether, in the future, there might need to be people who can work across that adult social care and NHS border. Meanwhile, back at the ranch of DfE, all this is being dealt with by a set of officials who do not have any expertise, if I may say so, in adult social care. The Minister was totally unconvincing when he responded to some of our concerns about this.
I shall not go on any further, other than to say that I am not convinced at all by what the Minister has said, I will definitely be returning to this at Report and, on the present evidence, we will be tabling an amendment and pushing for a vote. In the meantime, I beg leave to withdraw the amendment.
Amendment 135B withdrawn.
Clause 20 agreed.
135C: After Clause 20, insert the following new Clause—
“Social Work Improvement Agency
(1) There shall be a body corporate to be known as the Social Work Improvement Agency (referred to in this Act as “the Agency”), which shall have the functions conferred on it by or under this Act or any other enactment.(2) It shall be the duty of the Agency to promote in relation to England—(a) high professional standards for social workers;(b) high ethical standards for social workers;(c) high standards in the training of social workers; and(d) continuing professional training and development for social workers.(3) The Agency shall, in the exercise of its functions, act—(a) in accordance with any directions given to it by the appropriate Minister; and(b) under the general guidance of the appropriate Minister.(4) Regulations made by statutory instrument may provide for the appointment and financing of the Board of the Agency and for the appointment of staff to the Agency.(5) Regulations made under this section are subject to the affirmative procedure.”
My Lords, I do not intend to repeat the arguments of the previous debate, but I will pick up two things that are relevant to improvement. First, on my noble friend’s point about integration, those of us who are mainly health orientated find it quite extraordinary that at a time when health and social care are increasingly being integrated, adult social care regulation is being taken away from a health and care regulatory function and being put under the auspices of the Secretary of State for Education, who clearly has no remit or interest in adult social care.
It is well known that the Department of Health opposed the changes. As happens in the machinery of government, in the end it was forced to give way, but this is clearly a department that knows very little about the world outside education, that makes policy on the hoof and that has made a quick decision to legislate. This is clearly a cut and paste job given to parliamentary counsel at very short notice. We have here the makings of a complete shambles, which we know will end up in tears if allowed to go ahead. Everyone on this side of the House—we have huge experience in this area—knows that this is a shambles, a debacle in the making.
The more I hear the Minister, the more I agree with him on the issue of improving standards. There is no disagreement on the broad principles, it is simply that his department has confused regulation with improvement. It keeps insisting that they can be done together. The noble Lord, Lord Nash, said that the Professional Standards Authority has expertise and experience, and, of course, it does. I take him back to the evidence we received a few days ago about the importance of separating the roles of regulation and improvement. He said that the role of the investigative agency was to set and improve standards. What the PSA says is:
“Regulators are responsible for protecting the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct or competence”.
On professional development and improvement, it says:
“Professional bodies, such as Colleges, are generally responsible for improvements to education, training, professional practice and continuing professional development”.
The Minister is consistently talking about the latter responsibilities, not about regulation. I have a low-cost solution, which is to focus on the improvement agenda, which we are all behind. I take his point about what happened in the past. I understand the tensions there between a statutory improvement agency and the role of BASW.
I thought that the Education Select Committee’s report was helpful in this regard. It set out what it believed should be the functions of a new professional social work body and said that it should:
“Be a ‘broad church’ that represents a diverse workforce of social workers in a range of settings … Provide high profile leadership and a national voice for the profession which explains what social work is and what social workers do … Make the profession an attractive choice by building a professional identity and culture … Defining the continuing professional development and post-qualifying pathway for all social work … Promote practice excellence … Shape and influence national and local policy and … Build good working relationships with the Government”.
It is a remarkably good report and I cannot disagree with it.
The report then says:
“We recommend that the Government facilitate the development of a professional body for social work, working in partnership with … (BASW), other social worker representatives and the wider sector”.
That seems perfectly sensible. Why do the Government not just do that? We would support it. I have no problems with the Secretary of State having oversight of such a body, so all that the Government need to do is to say that they will leave regulation to the HCPC and get on with the vital job of leadership and improvement. The Minister would have our support and he would not disrupt the profession with these really ludicrous proposals to take a low-cost, well-functioning regulatory system away from the HCPC, which his Government and that department put in place only three or four years ago. I beg to move.
My Lords, my name is on this amendment, which is probably bad news for the Minister, and I support what the noble Lord, Lord Hunt, said. I want to add a couple of points on setting up a new unit by coming back to the issue of the Department of Health and adult social workers. It needs to be a unit which would deal with both groups of social workers, which means it needs some machinery that represents the interests of both the Department of Health and the Department for Education. I still see no really convincing evidence that it has been thought through in terms of those departments working together on something to benefit the range of social workers—those who work with children and those who work with adults. If we were to go down this path, there would have to be an agency or unit. I do not think one would mind what it is but it would have to be a convincing agency that looked across the spectrum of social work with children and adults.
I also want to pick up on some of the Minister’s comments in the discussion on my Amendment 135B. At the end of the day, if the Minister has all this money and wants to get on quickly—he said that he had the money and wants to get on speedily with the job of improving social work—then I would say, having been a Minister in government, that the fastest way to do that, as some of us have done, is to set up some kind of grouping across the piece. It would include the types of social workers for adults and children, and all the outside interests. The Minister could almost do that before the autumn and before we come to this on Report. At a later stage, that could be turned into an executive agency if he wanted to do that. There is nothing to prevent the Government putting in place very quickly indeed something of the kind that the noble Lord, Lord Hunt, suggested if they have the money and the capability. If they have those then they should do it; they do not even have to ask Parliament.
If the Government want to improve some of the training requirements for social workers, they could also have a conversation with the HCPC, which will be looking at education in September. It has committed to that as part of its work programme. I am sure that any regulator in this area would always listen to a government department or the Government of the day and consider the evidence for change.
If the Minister is really in a hurry and wants to take people with him, why does he not use what is available now, get on and have a discussion with the HCPC and set up a unit jointly with the Department of Health to do as much improving and make as many changes as he wants? Why are we all being subjected to, and spending some of the best years of our lives discussing, the shambles that is Part 2 of this Bill? It is a sad waste of parliamentary time and I do not think that it is terribly good for the profession, which is being subjected to a lot of uncertainty when it needs more confidence and more certainty. I hope that, even at this late stage, the Minister can see that there are some merits in the approaches of the two amendments.
My Lords, I was attracted to putting my name to Amendments 135B and 135C because of their cleanliness and simplicity, and the fact that they picked up all the points that had been made in the Government’s policy statement, Regulating Social Workers, which was published last month. There was nothing missing. Furthermore, what the amendments proposed was independent and objective, and therefore they were likely to attract the support of the profession.
I could not help reflecting on two things. One was that when I was Chief Inspector of Prisons, when I inspected a prison that had an under-18 wing the social services were responsible for under-18s at that time, so I took a social services inspector with me. She said that if it had been a secure children’s home, it would have been closed because of the lack of facilities. Those facilities were then under the direction of the Home Office, which claimed to be responsible for young people in custody. That has always suggested to me that government should not get close to the delivery of these things.
The second thing, which I admit struck me as strange, was on page 19 of the Regulating Social Workers report. One paragraph says:
“Ministers will lead on issues such as setting standards and delivery of responsive improvement programmes to raise the calibre and status of the profession”.
The next paragraph says:
“While Ministers retain ultimate responsibility, decisions will be kept at arm’s length”.
How can you lead at arm’s length? It struck me that there was considerable confusion in all this and that therefore the Government can consider the clarity of Amendments 135B and 135C as helping them to deliver what they want. As the noble Lord, Lord Hunt, said, we all want improvement as quickly as possible, and I think that the profession does as well. We appear to be in the mire of confused thinking, which could be avoided by withdrawing from it.
My Lords, I hope that the Minister sees Amendments 135B and 135C as a helpful attempt to get over problems with the way that the Bill is currently worded. There are two clear issues: one is the muddling together of regulation and improvement and the other is independence.
The Minister made a very decent argument for a new regulator focused solely on social work. Many social workers agree with that. Indeed, that is exactly what Amendment 135B would do, but it would not muddle it with improvement and, of course, the regulator would be independent. I was a little confused by some of the things that the Minister said about independence in the debate on the previous group. He talked about moving the whole thing closer to government but he also talked about operational independence. Those sound like two conflicting things to me. Given that the HCPC is both financially and operationally independent, what it is about the way it has operated its independence that make the Government think that the new body should not be independent?
Moving to improvement, the noble Lord, Lord Hunt, has put together an amendment to which we have added our names, which gives a clear mandate to a new agency charged with improving standards within social work, improving the profession’s status and attracting more people to it. There are probably lessons to be learned from what happened to the College of Social Work, which was set up at a cost of about £5 million. I think that the total funding was about £8 million, but the set-up fees were about £5 million of that. Other professional colleges hold a full range of functions necessary to be both financially stable and credible. However, the College of Social Work suffered from the fact that it was vulnerable from the start because of an ongoing lack of coherence about its core functions.
That is why Amendment 135C, moved by the noble Lord, Lord Hunt, is clear about what the mandate for the new improvement agency would be. That is very important because the confusion to which I have referred had a great impact on the work and sustainability of the College of Social Work. The new professional body must have a clear and explicit mandate and set of functions, and have a sustainable business plan. Noble Lords on this side of the Committee feel that that package would be very helpful to the Government in achieving their objective, which we all agree with, of improving the quality of social work, and doing so fairly quickly if we are to build on what has gone before.
My Lords, one could scarcely fail to notice that when the Minister talked about the very welcome aspects of the things that this new regulator is going to do, they were, as others have said, mostly focused on the improvement of social work. There is no disagreement about this. Everybody wants to improve and support social work. However, the actual functions of a regulator always come very far down the Minister’s list when we talk about registration and the fitness to practise of social workers. Fitness to practise involves not being fit to practise and social workers being struck off a register, which is a very important part of what a regulator does.
Any regulatory system for social workers should ensure parity of esteem for the social work profession with that accorded to other public service professions entrusted to undertake high-risk professional tasks. For me, that is an argument for keeping the system within the Department of Health, which regulates many of those other professions. Any regulatory system should also provide stability for social workers. One thing that we have not given social workers in recent years is any form of stability. Some of us here are old enough to remember CCETSW before we had the GSCC, and all the controversy surrounding that. Then we went to the HCPC. That lack of stability has added to the problems of the workforce and the severe current retention problems with which we should all be concerned.
Any regulatory system must also be cost-effective to both central and local government and not be provided for at the expense of resources needed for service delivery, about which my noble friend Lady Howarth—I call her my noble friend—has already talked so eloquently. It must not result in the deterrent of unacceptably high registration fees falling on very poorly paid social workers. I am still not convinced about that. It seems to me that the HCPC already does parity, stability and being cost-effective. We could leave regulation there, along with consulting the HCPC to undertake some improvements, which I am sure it would be willing to do, and with the existing oversight of the Professional Standards Authority and a responsibility to the Privy Council, which is also where the HCPC sits. If we did that, and had a separate improvement agency, which, as the noble Lord, Lord Warner, said, could be set up very quickly, and given the great amount of agreement from everybody in your Lordships’ House and across the piece, why does not the Minister at least give that serious consideration over the summer?
My Lords, the Minister referred earlier to the regulator having a role in fitness to practise. He is absolutely right; that is what a regulator has a duty to do. However, I refer again to the policy statement produced last month by the Department for Education and the Department of Health. It refers to professional standards which will cover four elements: on proficiency, performance, conduct and ethics and, it says:
“Continuing professional training and development”.
If I were looking through the eyes of a social worker at what was being set up here, I wonder how happy I would be to have a regulator that was going to establish the standards and have the right to strike me off if my proficiency was not up to scratch in any way, yet was also going to set out my continuous professional development. When we had the meeting with the chief social worker, she said that social workers have a range of ambitions when they go into social work, at one end of which is their role in challenging society and how the Government see society. That is one of the complex and noble reasons why people become interested in and go into social work.
Paragraph 119 of the policy statement relates to CPD. It states:
“The new regulator will set new standards for CPD”,
and refers to,
“options on how to ensure compliance … This will include appropriate sanctions for non-compliance”.
Here we have a regulator concerned with fitness to practise, as regulators are, while it may impose sanctions for non-compliance with what it has set up for professional development. That is at the heart of what the noble Lord, Lord Hunt, said earlier when he referred to the medical profession. He spoke about the importance of separating the state and government from what is at the heart of social work, as opposed to regulation.
So what is at the heart of development? Which route should we go down when we train social workers for mental health practice, for instance? Should it be the route that the Government may want, ensuring that more people are taken into secure units, or should the approach be more one of community care? If the regulator has responsibility for both fitness to practise and compliance with its own list of what CPD should include, we are down a very dangerous route, and I am sure the Minister would not want that to happen. CPD needs to be separate. If we have a profession, as we do, continuous professional development must be separated from the regulator. That is at the heart of this amendment, which I support.
My Lords, in view of what the noble Lord, Lord Warner, said about how we are apparently wasting everybody’s time, I will try to be brief, but I shall deal with his first point about the involvement of the DoH. The two departments have been working very closely together and will continue to do so. I have two officials from the DoH here today, and both departments will be involved in the governance.
Amendment 135C seeks to establish a new social work improvement agency under the auspices of the Government which will have responsibility for promoting the highest standards of practice, conduct, education and training and professional development. I understand the intention that this new agency would work in partnership with an independent regulator to raise standards across the social work profession.
As noble Lords will be aware, regulators traditionally have three key roles: first, to set and maintain standards; secondly, to control entry to the profession; and, thirdly, to take action in response to concerns raised about registrants. These functions are distinct from the quality improvement activities commonly carried out by a professional body or college. We understand the concerns that have been raised by the sector and the Professional Standards Authority about conflating regulatory and improvement functions in the one organisation. We agree that the blurring of these functions can lead to conflicting and competing priorities, and can leave regulators open to accusations of marking their own homework.
Let me be clear: we do not intend to set up a regulator that also doubles as an improvement agency, nor are we setting up a professional body. The agency, however, will have a remit that goes beyond simply setting minimum standards for public protection. Just as the GMC standards define good medical practice, so the standards of the new regulator will seek to set out what constitutes good social work practice rather than what is just acceptable. Social work requires an approach that goes beyond the traditional safety net role of professional regulation. Social workers take critical and complex decisions in high-risk environments on a daily basis. Therefore, it is only right that regulation is focused on ensuring that all social workers have the knowledge and expertise to not only be fit to practise but to be able to practise well. We make no apologies about this.
Unfortunately, the social work profession has been unable to sustain a professional body to support the work of a regulator in raising standards. Most other healthcare professionals are supported by strong professional bodies which take an active role in quality improvement, supporting and completing the work of the regulator. The Government have invested significantly —over £8 million, to which the noble Baroness, Lady Walmsley, referred—in the College of Social Work to address this gap. However, the College of Social Work was unable to attract the membership required to make it financially sustainable.
The Government understand that the development of a strong professional body is important to raise the status and standing of the profession in the long term. The Government cannot do this alone. An organisation that can articulate the views and interests of social workers and complement the work of the regulator is needed. However, our recent experience with the failed College of Social Work makes clear that this is for the profession to develop, own and maintain. We are not asking the agency to also perform this role. We are happy to continue to talk to the sector about whether it can establish its own body but, as I say, it must be developed and maintained by the sector.
As I set out previously, to bring about the reforms needed the social work profession needs a bespoke regulator with an absolute focus on raising the quality of social work education, training and practice and setting new and more specific standards. Alongside improvements to the regulatory system we will, of course, continue to invest in supporting the profession. The new agency will have a wider regulatory remit than traditional regulators and will go beyond minimum standards. It will do this through the setting of specific and higher standards.
The reforms that are needed to practice standards cannot be addressed through the development of an improvement agency. To allow us to rapidly deliver improvements and to embed the new regulatory system, the regulator will set new tougher standards for initial qualification, focus on professional standards for post-qualification, set new standards for continuous professional development, maintain a single register of social workers and oversee a fitness-to-practise hearing system, to which the noble Baronesses, Lady Pitkeathley and Lady Pinnock, have referred.
I can assure noble Lords that the Government do not intend to set up an agency with dual and conflicting roles. The new regulator will ensure that all social workers have the knowledge and expertise needed not only to be fit to practise but to be able to practise well. I hope the arguments I have set out will give the noble Lord the confidence to withdraw the amendment.
I am a member of a committee set up by this House to look at the sustainability of the NHS. We are taking evidence from the Department of Health and the Department for Communities and Local Government about the workforce issues, which straddle adult social care and NHS staff. We are told today, rather blithely if I may say so, that actually what the Government are now trying to move towards is a workforce which is regulated for social workers within the Department for Education, with some involvement—we know not what—from the Department of Health.
The Minister seems quite jovial about this, but it seems extraordinary to me that we are dealing, in one part of government, with social workers as though they are linked to the NHS for adult social care and that their improvement needs to be engineered through that department, but somehow, along the way, they have been slipped into the Department for Education. I have to tell the Minister that this is very unconvincing and rather serious machinery of government. I hereby give him notice that I am going to write to the Cabinet Secretary to ask for some explanations about the machinery of government and how it is working in this area.
That was a very interesting comment. I just do not get it. The noble Lord, Lord Nash, says that the Government do not want to blur the functions between the role of the regulator and the role of the improver, but then he talked about the work of the regulator in raising standards and he also talked about the regulator taking responsibility for continuing professional development. I am afraid that that is a direct blurring of the two roles. That is the problem we have. My impression from the debate is that we may need to focus on the first group, because the Government are clearly determined to have a separate regulator for all social workers. It is a pity, but if that is the case, then the emphasis must be on preventing the Secretary of State having any direct connection with regulation and on raising some very important issues around how such a regulator should be established.
I draw noble Lords’ attention to Schedule 1 to the care Act 2000, which sets out very clearly how you can set up an independent regulator. It sets out the appointment of a chair and members, and for the life of me I do not understand why the Government could not produce a Schedule 1 within a couple of weeks—it is all very straightforward. It would establish independence, which is clearly essential and which your Lordships will, I believe, insist upon on Report, and set up an independent regulator, because the Government are clearly determined to do it. I have a big problem, because what they really want is improvement—CPD. We all agree with that but it cannot be done by a regulator. Regulators are there to drum people out of business if they do things which lead to unsafe practice. That is what they are there for; they cannot do the agenda that the Government seem to want them to do. It is a completely different world. However, this has been a good debate and I beg leave to withdraw my amendment.
Amendment 135C withdrawn.
Amendment 136 had been withdrawn from the Marshalled List.
Clause 21 agreed.
Clause 22: Registration
Debate on whether Clause 22 should stand part of the Bill.
My Lords, noble Lords will be reassured to hear that I do not intend to speak to every clause; I just want to raise points on three of them.
The first concerns Clause 22 and the question of fees, and I do not want to repeat what has been said. Obviously, setting up a separate regulator will be more expensive than regulation continuing under the HCPC. I think that the implication of what the noble Lord, Lord Nash, said was that it will be done without increasing fees for social workers. However, is there not a general rule in government about regulators having to be self-financing? We have dealt with various orders on increased fees in relation to health regulators because of the requirement on those regulatory bodies to break even, so is the Minister right in saying that fees will not have to increase? There may be some legislative provision to cover this. Is there not a requirement that a regulator can start with a subsidy from a central government department but, in the end, it has to consume its own smoke? I suspect that the noble Lord will not be able to respond immediately but, on Report, we would like a much more explicit statement about what will happen to fees in the future.
My second point relates to a question about offences raised by the Constitution Committee in relation to Clause 34. The committee says:
“The Clauses to which the offences will relate—Clauses 22 and 23—contain little detail on the face of the Bill but will themselves need to be defined and implemented by regulations … From a constitutional point of view, the creation of criminal offences, whether or not punishable by imprisonment, should be subject to proper and full parliamentary scrutiny. The House may wish carefully to consider how it can appropriately scrutinise the creation of criminal offences which are not only themselves undefined but which will relate to other legislative provisions that are also still to be delineated”.
I can imagine that if this Bill ever got to the attention of our legal experts in the House, they would express very great concern about the use of what are basically Henry VIII powers to create new offences. I do not think that it is good enough for this change to be brought about just through regulations.
Thirdly, I want to refer to the Delegated Powers and Regulatory Reform Committee, which says:
“Clause 35(3) allows social worker regulations to include provisions which themselves would confer a further power to make, confirm or approve subordinate legislation. It says nothing explicitly about the person or persons on whom subordinate legislation making powers may be conferred, or about the matters to which the subordinate legislation might relate. We assume the intention is that the subordinate legislation making powers may be conferred on the regulator or a Minister of the Crown, and that they can relate to any matter dealt with in Chapter 1 of Part 2”.
It goes on to say:
“We were disappointed”—
House of Lords committees express angst by expressing disappointment—
“that the Department failed to provide any explanation for including the subordinate legislation making power in clause 35(3), particularly given its breadth, the lack of any explicit constraints on how it might be used and the absence of any requirement for Parliamentary scrutiny”.
I know that the Government have now responded to the Delegated Powers Select Committee but can the noble Lord place on the record their response to this? Obviously, it raises a question about whether this is an appropriate use of secondary legislation.
I share the concerns of the noble Lord, Lord Hunt, particularly his first point about the fees from social workers. Those of us who speak to the health portfolio will know well that we have had concerns expressed to us, particularly by people who run small care homes, about the CQC fees being increased very considerably recently. The reason for that is the Government’s policy that regulators should be self-funding, which is an example of exactly the policy that the noble Lord has just queried. The question that he asked is: does this apply to the new regulator proposed by the Government for social work? If it does, then reassurances that fees will not rise are perhaps a little disingenuous.
My Lords, perhaps I can respond first to the point made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, about fees and self-financing. I will look at that and respond in due course. Secondly, the noble Lord, Lord Hunt, raised a point about offences, while his third point was about Clause 35 and what it is proposed to cover.
So far as offences are concerned, Clause 34 contains a power to create offences covering a number of specified areas. I have been clear throughout the passage of the Bill that any system of regulating professionals must focus on public protection. In order for this to be effective it is essential that the register is accurate, that it is based on current information and that people co-operate with regulatory processes. This clause contains powers to create offences that directly address these issues.
The indicative regulations make provision for three categories of offences that are, of course, subject to consultation. They include offences that relate to: registration and restrictions on practice and protected titles; the provision of evidence; and in connection with providing false or misleading information. These are all important safeguards for public safety that will benefit individuals, employers and the profession as a whole. The indicative regulations provide for offences in relation to matters including: using the title of social worker with intent to deceive when a person is not registered; falsely claiming to be registered with intent to deceive; making a false representation as to qualifications, education or training or anything included or not included in their entry in the register, with intent to deceive; failing to comply with requirements to provide documents or other information to the regulator, or to attend to give evidence when required to do so; or fraudulently procuring or attempting to fraudulently procure the making, amendment, removal or restoration of an entry in the register by providing information or failing to provide information in breach of requirements under the regulations.
The purpose of creating offences under these powers is not to prosecute large numbers of people. I think that is clear from the offences, which set a fairly high bar. Rather, it is to provide for an effective deterrent that helps ensure people co-operate with the regulator and with the processes of regulation.
The noble Lord, Lord Hunt, referred to Clause 35, which provides that the regulations may be used to confer functions on either the regulator or a Minister of the Crown. They could also provide for those responsible to delegate the exercise of functions and decision-making to others, where this is appropriate. The regulations may be used to confer powers to make, confirm or approve subordinate legislation. The intention is that rules will provide for the detail about how the regulator will discharge relevant functions. The indicative regulations provide an illustration of this approach by setting out, for example, that rules will be made regarding the procedural and administrative arrangements for registration and for the operation of the accreditation scheme. I remind the Committee that there are similar powers under the current regime. That is all I propose to say at this stage and I therefore move that these clauses stand part of the Bill.
I am grateful to the noble Baroness for reminding me of the CQC. I am afraid my memory is going. We debated it only about four weeks ago. The Care Quality Commission hiked fees up hugely because the Government essentially said, “We are not going to sub you any more”. They prayed in aid previous legislation and the general rule about government and how regulatory bodies have to be funded. That is why it is obviously an important question.
I take note of the Minister’s response on Clause 34, which was very helpful. I understand the point he is making on Clause 35(3). Autonomy in relation to rule-making powers is a point well taken, but the Law Commission report on which the policy is based was concerned with regulated bodies that were independent of government and under the auspices of the Privy Council. That is the difference. It is why, in the end, it is essential to have this new regulator as an independent body established properly in statute by primary legislation. This has been a short but useful exchange.
Clause 22 agreed.
Clauses 23 to 26 agreed.
Amendments 137 and 138 not moved.
Clauses 27 to 47 agreed.
Committee adjourned at 5.48 pm.