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House of Commons Hansard
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General Committees
08 May 2018

Delegated Legislation Committee

Draft Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018

The Committee consisted of the following Members:

Chair: Mr Laurence Robertson

† Brereton, Jack (Stoke-on-Trent South) (Con)

† Chalk, Alex (Cheltenham) (Con)

† Clark, Colin (Gordon) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Fletcher, Colleen (Coventry North East) (Lab)

† Glindon, Mary (North Tyneside) (Lab)

† Jack, Mr Alister (Dumfries and Galloway) (Con)

† Jones, Mr David (Clwyd West) (Con)

† Kerr, Stephen (Stirling) (Con)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Milling, Amanda (Cannock Chase) (Con)

† Moore, Damien (Southport) (Con)

† Nandy, Lisa (Wigan) (Lab)

† Platt, Jo (Leigh) (Lab/Co-op)

† Powell, Lucy (Manchester Central) (Lab/Co-op)

† Umunna, Chuka (Streatham) (Lab)

† Zahawi, Nadhim (Parliamentary Under-Secretary of State for Education)

Peter Stam, Committee Clerk

† attended the Committee

First Delegated Legislation Committee

Tuesday 8 May 2018

[Mr Laurence Robertson in the Chair]

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I beg to move,

That the Committee has considered the draft Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018.

It is an honour to serve under your chairmanship, Mr Robertson. The regulations are critical to delivering the safeguarding reforms set out in the Children Act 2004, as inserted by the Children and Social Work Act 2017. Their aim is to improve the protection of children across the country. The reforms in the 2017 Act were based on the findings of Sir Alan Wood’s 2016 review of the role and functions of local safeguarding children boards. The review found widespread agreement that the current system of multi-agency working should change in favour of a stronger but more flexible statutory framework. Alan Wood also recommended a new system of reviews to replace serious case reviews. That should include new centralised arrangements for reviews of national importance. At the same time, local reviews should be improved, and learning and the experience of the child should be at the centre of all reviews.

The 2017 Act enables the establishment of the new Child Safeguarding Practice Review Panel. The key function of the panel is to identify serious child safeguarding cases and trace issues that are complex or of national importance. Where the panel considers it appropriate, it will arrange for cases to be reviewed under its supervision.

I am absolutely delighted that, following a recruitment exercise conducted in accordance with the Cabinet Office procedures, Edward Timpson agreed to bring his skills and experience to chair the new panel. Following his advice and that of a skilled and representative assessment panel, last week we confirmed five appointments to bring a range of experience, which includes operational, strategic and academic rigour, to support him in this important work. The 2017 Act also gives the three safeguarding partners—chief officers of police, clinical commissioning groups and local authorities—a duty to work together to make arrangements to safeguard and promote the welfare of children in the area. As part of that, they must determine the agencies with whom they intend to work as part of these arrangements.

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I am listening to the Minister with interest, in particular to what he said about the appointment of the former Children’s Minister to chair that body. One of the great concerns that many people have is that giving more flexibility at a time when there have been huge cuts to public services could make it much more difficult to get agencies to take their child protection responsibilities seriously. The police in my local area are already saying that they will attend only if it is set out in legislation that they have to do so, because of the severity of the cuts. Can the Minister give some reassurance about that?

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The hon. Lady mentioned the police in her area; the best answer I can give her is that Simon Bailey, the National Police Chiefs Council lead on child protection, stated in his response:

“Overall, I welcome the continued focus of Government on child safeguarding and the desire to improve the services available to children and young people across England in terms of safeguarding and multi-agency working…I believe the new arrangements present an opportunity to renew focus on safeguarding across partners including an increased focus on early intervention and prevention.”

I hope that gives the hon. Lady some confidence in what we are doing—hopefully with cross-party support.

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It is very hot in this room, so I promise that I will not keep Members here for longer than the air lasts. It would provide reassurance if the Department set out how the regulations will be monitored. The explanatory memorandum specifies that they will be reviewed again in three to five years; however, it would be helpful to know what will be done by the Department responsible for safeguarding children to monitor activity in other areas and make sure that the arrangements do not fall apart in the meantime.

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Order. Members are free to remove jackets if they wish.

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I am grateful, Mr Robertson.

I hope that my speech will give the hon. Lady a little more comfort on how we intend to carry out monitoring. Part of the safeguarding partners’ duty to work together to make arrangements to safeguard and promote the welfare of children in their area will, as I have said, be to determine the agencies with which they intend to work. They must also consider serious child safeguarding cases that raise issues of importance in relation to the relevant area and, where they consider it appropriate, commission reviews of those cases.

The regulations cover important details that will enable the legislation on reviews and joint working to operate. They set out the broad criteria that the new independent Child Safeguarding Practice Review Panel must take into account when deciding whether to commission a review. The panel may also take other criteria into account as it sees fit. The regulations also give the panel a duty to set up a pool of potential reviewers, which must be made publicly available. The panel will determine how to set that up, and who will be in the pool.

Having a pool of potential reviewers will mean that when the panel decides that a national review should be commissioned, it will be able to select a reviewer quickly. However, it will have the flexibility to select from outside it, if no one in the pool is available or suitably experienced. The panel may remove a potential reviewer from the pool at any time, either because they wanted to be removed, or because the panel considered that a potential reviewer had shown evidence of general unsuitability. As the panel cannot let its own contracts, the Secretary of State will hold the contracts with reviewers. Therefore, the regulations require the Secretary of State to appoint them to or remove them from reviews, based on the panel’s recommendations.

The regulations also specify the panel’s supervisory powers during a review, and set out details about final reports, including regarding publication. The panel must ensure that reports are available for at least three years. The reports are expected to be significant, and to involve national-level learning. It is only right that there should be a requirement for them to be made public for a substantial period.

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I am interested, pursuant to the intervention by my hon. Friend the Member for Wigan, in how we make sure that all the agencies play their part in ensuring the correct resources to take the action in question. The Minister referred to significant reports, which would mean a tremendous amount of work. That will need resources. We need a reassurance from the Minister that all the agencies will play their part financially and that the Government will ensure they have the money to share out among themselves.

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The hon. Gentleman makes an important point. I will address the issue of money directly. It is important that local areas should have the flexibility to fund the arrangements that they design. The safeguarding partners should agree the level of funding secured from each partner, which should be equitable and proportionate, with, of course, contributions from each relevant agency to support the local safeguarding arrangements. The funding should be sufficient to cover all elements of the arrangements.

We do not expect the new arrangements to cost more than existing structures. Indeed, they may help to reduce duplication of resources and effort across agencies and areas, making greater efficiency and effectiveness possible.

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I was the lead member for children’s services when we set up the children’s trust in Stockton-on-Tees. Much as the various compartment agencies wanted to contribute financially to resourcing—both people and cash—it did not happen in all cases, and the local authority was left holding the baby. We have already heard about local authorities’ considerable financial suffering. How can the Minister ensure that the cash is there and, again, that he lays down the law to ensure that everybody plays their part in resourcing this legislation?

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If the hon. Gentleman will let me make some more headway, I hope I shall be able to convince him by the end of the debate.

The local review requirements in the regulations have some similarities with the national reviews. That section of the regulations also covers criteria, appointment and removal of reviewers, reports and the publication of reports. Like the panel, the safeguarding partners must make decisions about when it is appropriate to commission a review, taking the local review criteria into account. If the panel considers that a local review may be more appropriate, the safeguarding partners must also take that into account.

The safeguarding partners must consider the timeliness and quality of a review, and may seek information from the reviewer during the review to enable them to make that judgment. The regulations make it clear that the safeguarding partners may remove a reviewer who they have appointed at any time prior to the report being published to support the principles, which the new arrangements seek to establish, that the report should be high quality and produced on a timely basis. There is an expectation that improvements will be clearly identified, and there are clear requirements for publication.

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I am really grateful to the Minister for giving us the time. I welcome the fact that the pool of potential reviewers will be made publicly available, but I am concerned about the lack of independent oversight or scrutiny of the system. In particular, the regulations say that the panel may

“select a person as a potential reviewer who is not in the pool”

if it considers that somebody is not suitable. What thought has the Department given to ensuring independent oversight or scrutiny, for example by asking the Select Committee on Education to review or endorse the panel before a decision is made?

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It is important to remember that the panel is independent of Government. Of course, if the Education Committee chooses to call a witness for evidence, the chairman or any member of the panel will be compelled to go before it. To return to the funding issue, the Government will fully fund the national reviewers.

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Safeguarding boards up and down the country struggle to find experts to chair them, yet we are talking about people with similar skills and understanding forming the new pool. Never mind the panel’s independence, which is extremely important; how will the Minister ensure that we have a pool of suitably qualified people to carry out what are, as he has said, significant reports?

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The hon. Gentleman mentions local government. The Local Government Association responding by saying that it welcomes the

“introduction of shared responsibility between health, the police and the local authority,”

which has the potential to give the new arrangements more authority over those core agencies. Ofsted, which obviously inspects local government, says that it is pleased to see a stronger emphasis on the involvement of schools and local partnership arrangements. I am confident that what we are putting in place will deliver the engagement, including of local candidates, to carry out those local reviews.

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I support the point that my hon. Friend the Member for Stockton North has made. Before I came into this place, I worked with child migrants, often in settings where they were primarily seen as migrants and not as children, of which immigration detention was the most acute. If someone had a safeguarding concern in one of those settings, they would want to ensure that they had access to somebody suitable who could carry out a review and who had a much more diverse range of experience than the pool might. If the Minister cannot answer that point today, I would be grateful if he at least took it away and thought about how the Department might develop arrangements along those lines.

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I shall certainly take the hon. Lady’s point away. In terms of funding and non-participation, which hon. Members have mentioned several times, safeguarding partners and agencies must comply with the arrangements. Public bodies may be held to account if necessary through legislation, which allows the Secretary of State to take action, so there is a lever that applies in terms of compelling safeguarding partners and agencies.

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The Minister is being incredibly generous, and we are hammering a similar point, but can he say a little more about the lever that requires other agencies to come to the table? As has been alluded to, often the buck stops with the local authorities. They are the ones inspected and the ones with the statutory requirement. If other partners do not want to come to the table, how can we ensure that they do so and with some cash of their own?

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I hope to address that in the remainder of my opening remarks, but the hon. Lady makes a very important point, and there is a statutory requirement on the safeguarding partners and agencies listed in the regulations to participate.

The agencies selected must have functions relating to children, and safeguarding partners should consult with relevant agencies as they set up their arrangements and, for clarity and transparency, include a list of those agencies in their published arrangements. That list can change over time, as considered appropriate locally. Duties apply only to agencies included in local arrangements; the list in the regulations is for the purpose of selection only. Safeguarding partners may also, by mutual agreement, work with other bodies or persons not included in the regulations, although they will not be bound by the same duties—I think the hon. Lady was referring to this—as those listed in the regulations.

The Government consulted on the regulations and the associated statutory guidance, “Working Together to Safeguard Children”, for around 10 weeks towards the end of last year. More than 700 written responses were received. Regional consultation events were also held, attracting some 450 people from a wide range of organisations. I very much welcome the contributions made and the valuable points raised. As indicated in the published Government response, consultees were largely positive about the proposals in the regulations and guidance. However, some changes in clarification were made to the regulations following the consultation, and rightly so in my view. We are in the process of reviewing the related statutory guidance, “Working Together to Safeguard Children”, taking into account comments made during the consultation.

As was set out in the Children and Social Work Act 2017 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2018, which were made on 18 April, the new arrangements are due to begin from 29 June 2018. On that date, the new panel will begin operations, and the transitional period from the current system of local safeguarding children’s boards and serious case reviews to the new multi-agency arrangements and local reviews will commence. Local areas will have 12 months to publish their new arrangements, including their selected relevant agencies, and a further three months to implement them. Subject to the successful passage of the regulations before the Committee, we intend to publish the final version of the statutory guidance within the next few weeks. That will support the new arrangements and complement these regulations. Public bodies that fail to comply with their obligations will be held to account in a variety of ways. That could include a letter from the relevant Department or, ultimately, the Secretary of State.

In conclusion, I am extremely grateful to the very wide range of people, including Members of this House, who have been involved in moving us towards this important stage in our ambition to improve the protection of children across the country. These reforms, of which these regulations are a critical part, will support stronger but more flexible joint working arrangements, as well as promoting better and more timely learning from reviews, both locally and nationally. I commend the regulations to the Committee.

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It is a pleasure to serve under your chairmanship, Mr Robertson. I am sure the Committee will be pleased to hear that I do not intend to detain us too long or rehash the arguments we have already been through, and that we will not divide the Committee on the regulations. However, I seek some clarity from the Minister on a few key points.

The Minister will know that there remain concerns within the profession and among agencies more widely about unacceptable levels of involvement by the Secretary of State. It is puzzling that a Government who have thus far been committed to localism should impose such a top-down approach. It is inappropriate for the Secretary of State to have the power to appoint and remove panel members, including the chair, and to make arrangements regarding the panel’s proceedings, reports, staff, facilities, pay and expenses. The Minister is nodding, so he must agree with me that it is unacceptable.

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I was doing no such thing.

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It remains unclear whether the Secretary of State will be able to override panel decisions in relation to which cases are and are not put forward to the panel. If he can do so, then the panel’s independence and political neutrality will be entirely compromised. I hope that the Minister will advise us on that in his response.

Will the Minister also expand on a related point? It remains unclear what requirements—such as qualifications, professional body registration and experience—will be deemed appropriate for reviewers and panel members. In recent years, the Department has tended to appoint people with experience of finance and investment to boards, as opposed to people with actual frontline experience of working in child protection. I am sure the Minister will agree that experience of child protection is vital when it comes to safeguarding and reviewing the most serious cases where harm has been caused to a child.

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I apologise again to everyone in the room for intervening.

I agree with what my hon. Friend is saying about frontline professionals, but the group of people that I have found to have the best understanding of what needs to change in child safeguarding and child protection are young people who have been through the system themselves, and who have often suffered serious harm. They quite often tell us that they want to see less of a blame culture and much more learning enacted when we have conducted these reviews. I did not hear any indication from the Minister that the Government are listening to those young people, or that they will make sure that what is learned from these serious case reviews or national reviews is actually implemented so that we do not have to keep having review after review where the same things are highlighted but very little is done. Perhaps the Minister will correct that in his closing remarks.

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I thank my hon. Friend for that intervention. She comes to a point that I will be making shortly—great minds think alike.

May I also ask the Minister what his Department envisages will be the cap, if any, on pay, remuneration and expenses for the panel’s chair, board members and reviewers, especially since he gave assurances today that the new arrangements would be no more costly than the current arrangements?

The Minister will be aware that, despite the efforts of noble Lords and MPs from the Labour party throughout the passage of the 2017 Act, there remains a concern that reliance on local safeguarding partners is limited to the local authority, clinical commissioning groups and chief officers of police. That leaves schools and others who have always been core partners in local safeguarding arrangements out of the loop. Can he explain why, despite representations in the consultation phase expressing concerns about the absence of schools in particular as core partners, the Department is still struggling to understand that schools are vital in this process?

My final query relates to the dissemination of lessons learned and their practical application. Historically, the same lessons to be learned are highlighted time and time again when a child has been seriously harmed and such harm has resulted in their death. Yet rarely does anything on the ground change. Instead, a blame game is pursued. How does the Minister envisage the new arrangements making a difference, and what checks and balances does he feel are in place so that the same old outcomes of blame and increased bureaucracy and legislation will not be the stock go-to solution? That is ever more important against a backdrop of savage Government-imposed cuts that have served only to strangle a profession that is already undermined and is becoming increasingly demoralised.

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I had not intended to speak, and I will keep the Committee only a short time. The Minister spoke of receiving a positive response from the consultees, and that is fine. I do not have a problem with what is envisaged, but I worry about the implementation. The Minister said that he hoped during his speech to reassure us on the issues we raised in our interventions, but I am afraid that he has not reassured me—I do not know about my hon. Friends.

Where will the pool of expertise come from? I am not convinced that the people are out there who would be committed to doing the work. I gave the illustration earlier of trying to find chairs for local safeguarding boards. The people fishing in this pool, if I can put it like that, will face the same problems, so I ask the Minister again to address that. If he cannot do that today, I ask him at least to write to members of the Committee to tell us exactly where those people will come from.

My hon. Friend the Member for Wigan raised the issue of independent scrutiny of the pool, and that point was not adequately responded to either. Where is the provision to direct people to participate, and where is the resource commitment from the Minister? No dedicated new funding is being introduced for the delivery of what the Minister described as substantial reports. There is no detail on people being held to account for not participating. A letter from the Department, or even from the scary Secretary of State, is just not good enough. What will the Minister do to ensure that we do not need to send any such letters because people will know that they have a responsibility under the law to participate in the reviews?

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One of the concerns that my hon. Friend the Member for South Shields and I have raised is about the blame culture and the damage it does, particularly to frontline social workers who are trying to deal with very difficult issues, often with incomplete information, under pressure and in an era in which cuts have become the norm. Does my hon. Friend share my concern that one of the unintended consequences could be that the blame culture is exacerbated, because the pressure and the spotlight will be very much on the Minister?

It is not hard to envisage that something terrible happens, a review is commissioned, and the Minister is under pressure and seeks to apportion blame before the review has been completed, firing off letters to the local area to show that he or she is taking the matter seriously. Would my hon. Friend welcome as much as I would a commitment from the Minister that that is not what is intended and, explicitly, that the Department intends to take a different approach from now on? That is not a party political point; we have seen instances of that under different parties over the years. It does huge damage and it should stop.

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I certainly would welcome a commitment from the Minister to ensure that we do not end up in a blame culture. Last week I was given the honour of starting to chair the all-party parliamentary group on social work, and the first presentation was about the stresses that social services departments are already under in delivering children’s services. In my own local authority, we spend 57% of our entire council budget on social care issues—on children’s services and adult services. They are feeling the strain, and people are looking elsewhere to see how on earth they can get out of some of the corners they are in, particularly when things go wrong.

Warm words are great, and I know that the Minister is a sincere man, but we need guarantees. We need to that people will participate, that the reviews will be done, that we will learn from them and, most importantly of all, that they can happen in the first place by being properly resourced.

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The regulations underpin the important safeguarding changes set out in the Children and Social Work Act 2017. The regulations are essential to drive the operation of the joint working arrangements. They will enable safeguarding departments to identify whom to work with to support the safeguarding of children in their area, and give force to those decisions.

The new Child Safeguarding Practice Review Panel will be a high-profile, high-impact body, with powers independent of Government to drive improvements in the safeguarding of children. The new system of local and national child safeguarding practice reviews will enable the clear identification of any improvements that should be made to safeguard and promote the welfare of children. National reviews will be able to identify improvements on a national and local basis. The regulations support the proper functioning of those changes.

I am grateful to hon. Members for their comments and questions on the regulations. I will attempt to address them all in the few minutes remaining. The hon. Member for South Shields mentioned the possibility that the Secretary of State could override a panel’s decision. I assure her that that is not possible. The panel’s decisions are entirely its own.

A number of colleagues mentioned the independence of the new panel. The panel will ultimately be accountable to the Secretary of State, but how it will function is key to its independence. The panel will have sole responsibility for deciding which cases to review, the appointment of reviewers for national reviews, and the publication of such reviews. The Secretary of State will not have the power to direct the panel to initiate or publish reviews. The panel will be free to make recommendations on such matters relating to its areas of work, as it sees fit. Recommendations may be for the safeguarding of partners as well as for others, including Government and national or local bodies.

Reviews will focus on identifying any improvements that should be made to safeguard and promote the welfare of children, not on apportioning blame to individuals. The hon. Member for Wigan has spoken up passionately against the blame culture. Ensuring that we respect the independence of the panel is critical to its credibility and success. That will enable reviews of serious cases to lead to meaningful and enduring improvements to child safeguarding policy and practice across the country, which I know interests many colleagues.

The hon. Member for Stockton North was pressing for a better understanding of where the panel members come from and their expertise. Let me share that information with him. As I said, the panel will have the skills and experience to make sound judgments on complex situations that affect the lives of children. To ensure that the panel is independent, impartial and credible, members have not been appointed as representatives of their particular profession, employer or interest group. However, the experience and skills they bring in relation to safeguarding children or other areas will be vital to the panel’s success and credibility. To achieve that, it is made up of people who have direct experience of working to improve the life chances of children, which I think the hon. Member for Wigan mentioned. It includes individuals from local authorities, police and health.

Let me try to reassure the hon. Member for Stockton North by quoting some of the names of people who have joined the panel: Mark Gurrey, the chair of the South Gloucestershire improvement board, and the chair of the Devon and Wiltshire local safeguarding children boards; Professor Peter Sidebotham, associate professor in child health at Warwick Medical School and consultant paediatrician at South Warwickshire NHS Foundation Trust; Dr Susan Tranter, chief executive and accounting officer of Edmonton Academy Trust; Sarah Elliott, non-executive director at Avon and Wiltshire Mental Health Partnership NHS Trust and LSCB chair for Poole and Dorset; and Dale Simon, a qualified barrister and the former director of public accountability and inclusion at the Crown Prosecution Service.

I want to press the point that this process is about learning, not blame. Learning must be at the heart of all reviews, which should seek to prevent or reduce the risk of recurrence of similar incidents. Reviews should focus on identifying improvements to be made to safeguard and promote the welfare of children, not apportioning blame to individual practitioners or organisations. Other processes are in place to manage accountability issues. This process is not for that; it is about understanding how we can improve the system for those children.

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I am sorry to delay the Committee. I appreciate what the Minister is saying by way of reassurance, but he will be aware that self-reflective practice is a particularly difficult and pertinent issue in the NHS at the moment, and there is an overlap with children’s social services. Given the recent case of the doctor who was dismissed for having engaged in self-reflective practice, will he give some reassurance to practitioners on the ground that such practice will be at the heart of the process and people should feel able to come forward and admit mistakes in the context of learning and reflecting, rather than it being an opportunity for them to be dismissed by the professional bodies?

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The hon. Lady articulates that beautifully. She is absolutely right, and I want to drive this point home: the process is not about apportioning blame but about learning. Other structures are available to look at how people have behaved. People should be able to come forward in the knowledge that this is not about reports that apportion blame for their involvement in any case.

On involvement and the voice of children and families in reviews, which was mentioned by the hon. Member for Wigan, Edward Timpson and his panel are thinking carefully about how to ensure they hear the voices and reflect on the experiences of children and families in the reviews. That requires careful consideration to ensure that their vital contribution is meaningful rather than tokenistic. The panel’s membership includes several people with specific expertise relating to children.

The shadow Minister mentioned fees for the panel. The fees will be published as soon as possible on gov.uk on the pages covering public appointments and will be in line with those covering similar appointments.

On how we share best practice and learning and how we ensure that lessons are shared and implemented—that is ultimately what the process is about—the panel includes a representative from the new What Works centre for children’s social care, and that person will be a full panel member with the added responsibility of acting as a bridge between the panel and the What Works centre. The centre will collate findings from reviews, identify themes and disseminate lessons about what works in children’s services. The panel will also benefit from the centre’s overview of what lessons are already being learned so that, when it comes to deciding whether a national review is necessary, the panel can consider what current learning exists and how that is being implemented.

The hon. Member for Stockton North is clearly concerned about participation. The duty to co-operate and participate in safeguarding arrangements, which is set out in statutory guidance, in “Working Together” and in legislation, is in place. It will be up to the inspectorate to monitor the way in which safeguarding partners participate in multi-agency arrangements. The levers are there to push for full participation.

I have taken up far too much of your valuable time, Mr Robertson. I commend the regulations to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018.

Committee rose.

Draft Welsh Ministers (Transfer Of Functions) Order 2018

The Committee consisted of the following Members:

Chair: Sir Christopher Chope

† Andrew, Stuart (Parliamentary Under-Secretary of State for Wales)

† Antoniazzi, Tonia (Gower) (Lab)

Clwyd, Ann (Cynon Valley) (Lab)

† Crabb, Stephen (Preseli Pembrokeshire) (Con)

† Davies, Glyn (Montgomeryshire) (Con)

† Docherty, Leo (Aldershot) (Con)

† Evans, Chris (Islwyn) (Lab/Co-op)

† Greening, Justine (Putney) (Con)

† Hart, Simon (Carmarthen West and South Pembrokeshire) (Con)

† Jones, Susan Elan (Clwyd South) (Lab)

† Kinnock, Stephen (Aberavon) (Lab)

† Lake, Ben (Ceredigion) (PC)

† Mills, Nigel (Amber Valley) (Con)

† Morden, Jessica (Newport East) (Lab)

† Ruane, Chris (Vale of Clwyd) (Lab)

† Stephenson, Andrew (Lord Commissioner of Her Majesty’s Treasury)

† Whittingdale, Mr John (Maldon) (Con)

Adam Evans, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Tuesday 8 May 2018

[Sir Christopher Chope in the Chair]

Draft Welsh Ministers (Transfer of Functions) Order 2018

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I beg to move,

That the Committee has considered the draft Welsh Ministers (Transfer of Functions) Order 2018.

It is a pleasure to serve under your chairmanship, Sir Christopher. The Wales Act 2017 delivered a clear devolution settlement for Wales, based on the firm foundation of a reserved powers model. The new model, which came into force on 1 April, puts in place a clearer boundary between the powers and responsibilities of this place and those of the National Assembly for Wales. Unlike in Scotland, there has never been a general transfer of Minister of the Crown functions in devolved areas to Welsh Ministers. The different history and geography of Wales, compared with Scotland, and the greater cross-border interaction mean that the transfer of functions in specific areas has been more appropriate. Such an approach makes it clear which functions have been transferred.

During the passage of the 2017 Act, the Government committed to making it clear through the Act and associated secondary legislation how the Minister of the Crown functions that remain in devolved areas will be exercised. The new schedule 3A to the Government of Wales Act 2006, which was inserted by schedule 4 to the Wales Act 2017, sets out the statutory Minister of the Crown functions in devolved areas that are exercised concurrently or jointly with Welsh Ministers. Also, a handful of so-called pre-commencement functions need to continue to be exercised solely by a Minister of the Crown. Those are set out in paragraph 11 of new schedule 7B to the Government of Wales Act.

The draft order transfers the remaining Minister of the Crown functions in devolved areas to Welsh Ministers. Many of those functions are pre-commencement functions, which Ministers of the Crown exercised before the National Assembly gained full law-making powers following the 2011 referendum. In October 2016 we published an initial list of functions that we intended to transfer. Since then we have worked closely with other Departments and the Welsh Government to identify the further functions in devolved areas that should be transferred.

The draft order is the culmination of that work, transferring functions to Welsh Ministers in a wide range of devolved areas, including health, education, agriculture and the environment. It also transfers functions to Welsh Ministers in areas such as Assembly and local government elections, teachers’ pay and the community infrastructure levy, to accompany the further legislative competence devolved to the National Assembly in those areas under the 2017 Act. The order also removes the requirement for Treasury consent from a number of functions exercised by Welsh Ministers where that requirement is no longer appropriate.

Finally, the draft order delivers on one of the commitments made in the St David’s Day agreement, which my right hon. Friend the Member for Preseli Pembrokeshire so ably delivered when he was Secretary of State for Wales. The commitment was to ensure a clear understanding of the UK and Welsh Governments’ respective roles in relation to civil contingencies, separating out devolved and reserved responders, and transferring co-ordinating functions for those devolved responders to Welsh Ministers. The order therefore further clarifies the boundary of responsibilities between UK Government Ministers and Welsh Ministers in relation to civil emergencies. The order makes it absolutely clear which functions have been transferred to Welsh Ministers, thereby delivering a clearer boundary between the responsibilities of UK Ministers and those of Welsh Ministers.

In drawing up the draft order, my officials worked closely with colleagues across Whitehall and counterparts in the Welsh Government. I am pleased that the First Minister of Wales has approved it. I commend it to the Committee.

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It is a great honour to serve under your chairmanship, Sir Christopher, on this important matter. The draft order continues the long process—too long a process, some would say—of devolving powers from London to Cardiff over the past 21 years. I am sure that the Minister will be delighted to hear that we will not oppose these measures, which will ensure greater devolution to Wales.

Labour is the party of devolution. I was proud to play my full part in the devolution referendum in 1997 as the north Wales campaign co-ordinator. I was proud to vote for the Government of Wales Act 1998 and campaign for additional powers in the successful referendum in 2011. These powers have been a long time coming and it is a privilege to be on this Committee today when these powers will be tidied up and finally devolved.

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Many members of the Committee will be intrigued to see measures such as the Conservation of Seals Act 1970 included. We now know that the seals of Wales will be fully devolved.

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Labour seals.

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Indeed. One of the things that strikes me about the draft order is the number of references to agriculture. Does my hon. Friend agree that, as we come to the post-Brexit era, it makes more and more sense for measures relating to agriculture to be decided by our devolved Government in Wales?

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Absolutely. Agriculture in Wales pre and post Brexit is a top priority. Some 58% of farmers in Wales voted to leave the EU because of the promises that the funds they received on a regular basis from Brussels to the farm gate would be secure. Now they find that will not be the case.

The order represents an important change in the devolution settlement. Although the majority of the functions in it are relatively minor, their transfer to Welsh Ministers represents a significant step forward in matching the legislative competence of the Assembly with the Executive competence of Ministers. What the order does not do, as Labour argued consistently through the passage of the 2017 Act, is create the clarity that the opportunity of a new Wales Act could have provided. The whole period following the Silk Commission’s conclusions has been a missed opportunity by the Conservatives to put Wales on a stable and sustainable footing, consolidate all existing legislation and provide proper alignment.

On this journey, we had the debacle of the St David’s Day process, where the Tories could not get anyone to agree with them, yet persisted in calling it an agreement prior to the initial draft Wales Bill being published in 2016. The 2016 draft Bill was so universally loathed by politicians, academics and lawyers alike that significant changes had to be made before the Bill was introduced in Parliament the following year. We welcome those changes.

The Welsh Labour Government reluctantly recommended a legislative consent motion to the Assembly in 2017—not because the Wales Bill was perfect, but because it represented another step along the road towards the clarity that Wales deserves. That is where this TFO—transfer of functions order—comes in. As I said, it goes some way towards aligning the legislative competence of the National Assembly with the Executive competence of Welsh Ministers.

Of the 47 articles in the transfer order, there are three areas of significance: teachers’ pay and conditions, civil contingencies and elections. On teachers’ pay and conditions, we note the later date of 30 September 2018 for those coming into force. This, I understand, was at the Welsh Government’s request and is to ensure the smoothest possible transition for teachers in Wales when the new school year starts. I thank the Government for listening and for making the amendments proposed by Welsh Ministers.

The transfer of functions to Welsh Ministers in relation to civil contingencies should provide clarity for all those who deal day to day with emergency planning. We believe that will make for a better service response for the public and it is to be welcomed. I recently met the chief fire officer for north Wales, Simon Smith, to discuss fire issues and emergency planning. I pay tribute to all those who protect us in emergency planning and civil contingencies, including the police, fire services, ambulance services, local authorities, the coastguard and the NHS. I am sure they will be pleased with the joined-up approach that we are discussing today.

With respect to elections, we note that the functions will be transferred on a different basis from the other provisions in the TFO. Instead of listing the specific provisions to be transferred, the TFO provides that all functions in certain election-related enactments will be transferred, but only in so far as those functions fall within the legislative competence of the National Assembly. That appears to introduce some uncertainty: it is not exactly clear which functions have been transferred, making the TFO slightly difficult to navigate. We understand that the Welsh Government offered an alternative draft to the UK Government that would have addressed that point. Perhaps the Minister can explain to the Committee why it was thought necessary to proceed on the basis of what we have before us. Why did they not accept the Welsh Government’s proposals?

The final issue is Milford Haven port. The UK Government have compounded their determination to keep control of the port. Will the Minister confirm that they have no plans to privatise the port and will work with the Welsh Government to ensure its continued significant contribution to the economy of west Wales at this significant time, with Brexit looming large over us all?

The transfer of functions is generally to be welcomed. We will not divide the Committee, but I would appreciate if the Minister could shed some light on those issues.

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Following various threats and encouragements from people around me, I will keep my contribution brief. I do not intend to say anything about the background process or the legislation we passed that has led to the order we are discussing this afternoon, but there is one item in the order that I would draw the Minister’s attention to.

Article 39 transfers ministerial functions on teachers’ pay and conditions under the Education Act 2002. The hon. Member for Vale of Clwyd alluded to this provision as one of the most significant in the draft order. It was also probably the most contentious part of the discussions we had in the run-up to the St David’s Day agreement in 2015. The hon. Gentleman made some quite churlish remarks about the nature of the agreement, or lack of it. The truth is that when it came to teachers’ pay and conditions, the biggest resistance to devolution came from Labour Members—specifically, from the hon. Member for Pontypridd (Owen Smith). The concern he raised at that time, which was quite legitimate, was whether devolving teachers’ pay and conditions to Cardiff is a step towards breaking up unified national pay scales for teachers across England and Wales.

That is not just a theoretical point; the issue is very much live at the moment, particularly among supply teachers. A number of supply teachers in my constituency have contacted me about what they feel are the differential rates of pay they get for working in England and working in Wales, and the fact that they do not get access to the teachers’ pension service. They believe that the agency system that the Welsh Government’s national procurement strategy has set up to govern the way the teaching supply industry works in Wales does not work in the best interests of teachers. Does the Minister believe that this transfer of functions will give Welsh Ministers in Cardiff all the powers they need to address the problem that has emerged in the devaluing of supply teachers, with underpayment leaving them feeling worthless?

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I thank all hon. Members for their contributions. I welcome the fact that the Opposition support the order. The order delivers on our commitment to transfer the remaining Minister of the Crown functions to Welsh Ministers and provides the clarity I have referred to.

On teachers’ pay, I am glad that the hon. Member for Vale of Clwyd said that we have listened. That is the approach that we have tried to take: careful consideration of all of the issues that needed to be looked at in great detail. I pay tribute to people right across UK Government Departments and in the Welsh Government for the significant work they have done.

My right hon. Friend the Member for Preseli Pembrokeshire gives valuable insight and I am glad that he was able to contradict the picture of what happened in the discussions on the 2017 Act. On his point about powers, they are absolutely going to the Welsh Government, and it will be for them to come up with the plans and policies that they want on teachers’ pay. That responsibility will lie with the Welsh Government.

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The draft order transfers a wide range of functions to Welsh Ministers, particularly in relation to agriculture and the environment. We still do not know what the specific consequences of clause 11 of the European Union (Withdrawal) Bill will be. Are there any functions in the draft order that may need to be retracted once the regulations in that clause are made clearer? If so, what will be the scrutiny procedure for bringing back any of the functions that are being transferred today?

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Of course, these are the particular functions that we have identified at the moment. Clause 11 of the withdrawal Bill is a totally different issue. If any more powers need to be transferred to the Welsh Government, we will bring another order before the House so that they can be considered properly.

The hon. Member for Vale of Clwyd also mentioned civil contingencies, and he is absolutely right to point out the joint approach that has taken place. I join him in paying tribute to all those who work in the emergency services and keep us safe. They do a superb job. The clarity that we will now have in the management and planning of those will be welcomed right across the board.

On elections, the draft order makes clear the areas of election law to which the electoral functions that are being transferred will apply. It made sense to do that in this way, because the draft order would otherwise have become quite an unwieldy document. We felt that this was the best way to take this forward, and it means that it is now very clear that the functions for elections to local government and to the Welsh Assembly are now with the Welsh Government.

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And Milford Haven?

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Milford Haven is a reserved trust under the 2017 Act, and policies concerning it are therefore a matter for the UK Government and Parliament, not the draft order. The hon. Member for Vale of Clwyd asked about its future. I cannot at this stage give any information on its future, but I will happily write to him on that.

I thank members of the Committee for considering the draft order. It is an historic day. The transfer of these functions brings a lot of clarity about the responsibilities of the Welsh Government and those of the UK Government.

Question put and agreed to.

Committee rose.