The Children and Social Work Bill returns to the House of Lords next week with rival amendments seeking to address the controversial "exemption/innovation" clause in the Bill which would permit local authorities to seek exemption from children's social care legislation.
The controversial proposals have been criticised by a raft of children's organisations including CRAE, Article 39 and Children England, and a website Together for Children has been set up to focus on the Bill. Concerns have also been raised by the Parliamentary Joint Committee on Human Rights and the Delegated Powers Committee.
The clause's stated purpose is to enable a local authority in England
"to test different ways of working with a view to achieving better outcomes under children's social care legislation or achieving the same outcomes more efficiently".
Children's organisations fear that this will lead to variation in child protection (a postcode lottery), confusion where providers operate across local authority boundaries, weakening of child protection and potential privatisation of services.
The exemption clause potentially affects all children's social care legislation, including:
- any legislation specified in Schedule 1 to the Local Authority and Social Services Act 1970
- sections 23C to 24D of the Children Act 1989
- the Children Act 2004
- any subordinate legislation under the legislation above.
For Report stage next week, the Government has tabled an amendment which would require any request for exemption to be considered by an expert panel comprising the Children's Commissioner, the Chief Inspector of Education, Children's Services and Skills and one or more other persons with relevant expertise appointed by the Secretary of State.
While this offers an extra level of scrutiny of any exemption, regulations made by the Secretary of State would still face the general difficulties of adequate scrutiny of secondary legislation by Parliament. Rival amendments, tabled by Lord Ramsbotham, Lord Watson and Lord Warner, seek to exclude the clause altogether.
Notwithstanding the Government's proposed amendment, the question remains whether exemption is required in order to test innovation. The Government's Child Rights Assessment of the Bill talked of "testing in a controlled environment of new approaches to delivery of children's social care that sit outside the current legislative framework" and claimed that the power was "ultimately about getting better outcomes for vulnerable children". But the assessment went on to accept that the resulting secondary legislation would be "both enabling and deregulatory". Many would question whether deregulation is an appropriate aim for a Bill on the welfare of children.
Other Government amendments:
- would require the Secretary of State to lay a report explaining how the regulations are expected to achieve the purpose, confirming that they are not expected to have a detrimental effect on the welfare of any child and explaining any measures that have been put in place to ensure that this is the case
- provide that regulations may not be used so as to remove any prohibition on privatisation.
In its latest legislative scrutiny report on the Bill, the JCHR cautiously welcomes the Government's amendments but issues a warning about the need for vigilance:
We welcome the Government’s recognition of the need for strong safeguards to ensure that this piloting power does not risk a reduction in the legal protection of children’s fundamental rights. We welcome the Government amendment which will give effect to the recommendation of the Delegated Powers and Regulatory Reform Committee that the Secretary of State be under a duty to lay an explanatory statement alongside any regulations, explaining, amongst other things, how the local authority will ensure that the rights of affected children continue to be protected. We draw to the attention of both Houses the need for Parliament to remain vigilant and to scrutinise carefully any exercise of the new piloting power to ensure that the protection of children’s fundamental rights is not diminished.