Adoption and Children Bill

[back to previous text]

Mr. Djanogly: My hon. Friend will appreciate that many essential components of the Bill—the nitty-gritty, the nuts and bolts and the administration procedures—are being put in by way of regulation, and that dealing appropriately with regulations is even more important than we would have wished.

Tim Loughton: My hon. Friend reinforces one of the essential weaknesses of so much of the Government's legislation: the devil is in the detail and we are a long way from seeing the detail. The work of the Committee will be long done—unsatisfactorily and incompletely—by the time we see the regulations. Only then will we know whether today's debate flagged up real fears or more hypothetical fears based on real-life cases.

11.45 am

My hon. Friend the Member for Canterbury made an important point when the Parliamentary Secretary started talking about the monitoring role. What is the difference between the monitoring and the prosecutory role? When the Financial Services Authority was initially set up—I do not want to stray from our subject, but it provides an interesting parallel—it was judge, jury, prosecutor, executor and beneficiary from fines. It was certainly set up with a powerful role. It was largely the lobby of the City and more than 1,000 amendments tabled by the Opposition—the Government had to accept hundreds of them in another place—that better contained, divided and defined the powers of the FSA. Similarly, we need greater definition of the new powers being conferred on this body.

Mr. Brazier: On that exact point, the Parliamentary Secretary clearly said—she generously gave way three times and I am sorry to challenge her a fourth time—that it was usual for the CPS to prosecute in most cases, but that where regulations were breached it was normal practice for the regulatory agency to prosecute, with the let-out of the Attorney-General. She provided the solitary example of the Care Standards Act 2000, which has only just passed through Parliament and is presently being implemented. Can the Parliamentary Secretary provide any further legislative examples where that form of policing applies?

Tim Loughton: That is precisely the point. The registration authority in this case is the National Care Standards Commission in England and the National Assembly in Wales. The NCSC started its work on 1 April this year when the Act came into force, so there are no precedents. I am not aware of any other cases that involve the care of children, so perhaps the Parliamentary Secretary can enlighten us. I am far from clear about where the monitoring stops and where the prosecutory action starts.

The amendment would add to the variety of routes open to aggrieved individuals. Allowing individuals to bring a case to the notification of the CPS and other legal routes would not detract from what is laid down in the clause or undermine the expertise of the professional groups at work in the National Care Standards Commission. I appreciate the Parliamentary Secretary's point that the best monitors of whether the regulations are breached will be the professionals in the regulatory organisation. No one disputes that. We are disputing what should happen where that job becomes prosecutory. We are debating the interface between the breaches and monitoring of regulations and taking action when offences have been committed. That is the grey area revealed by our extensive but worthwhile deliberations this morning.

What we are proposing would not undermine the work of the regulatory body. If anything, it would give it more teeth. More avenues would be available to aggrieved persons and it would be even more implicit that the regulator should ensure that the bodies that it regulates—the adoption agencies and local authorities—are doing their jobs properly. Otherwise, prosecution could be taken elsewhere, which would leave the regulators looking a bit silly because they did not pick it up in the first place. The Parliamentary Secretary should reflect on the John Smith case, where no one was prosecuted other than the perpetrators of the violence against the child that led to his tragic death. Where does criminal incompetence or criminal or professional negligence in that case feature in proposals for social workers, health professionals and others? My hon. Friend the Member for Canterbury also mentioned the case in his constituency of Emma. Will the Parliamentary Secretary respond to those two cases?

When the Parliamentary Secretary said that the first port of call was the National Care Standards Commission or the National Assembly in Wales and that if aggrieved individuals did not get satisfaction there, they could go to the Attorney-General, it amounted to a tightening of choice. Those are two extremes with no intermediate stages. People do not go lightly to the Attorney-General, who does not entertain individual cases in matters such as this. If the Parliamentary Secretary tells us otherwise, I anticipate much more work for the Law Officers' Department, which may not be well equipped to cope with it. It might then have to draw on the expertise of professionals working in the NCSC or the National Assembly—a circular argument.

When challenged over other options, the Parliamentary Secretary mentioned judicial reviews. We all know that they are hard to pronounce, hard to effect and hard to bring to a satisfactory conclusion, particularly for individuals embroiled in emotional family matters. Such people are often not well versed in the law or how to press their grievances against the establishment. Doing so would be exceedingly costly and cumbersome. The Parliamentary Secretary knows from experience in the Lord Chancellor's Department how rarely judicial reviews come off.

The Parliamentary Secretary then mentioned making a civil claim. Once again, that option is available, but it is expensive and the system often works against individuals. I simply do not understand why she wants to restrict the choice of aggrieved individuals in seeking proper recourse to the law when an adoption agency or local authority has not done its job properly. Those authorities may have gone beyond the breaching of regulations into semi-criminal matters, which might not, however, be taken up by the CPS.

I seriously ask the Parliamentary Secretary to deal with those re-stated concerns. Otherwise, what started out as only a probing amendment will be put to the vote.

Ms Winterton: I am sorry that I have been such a disappointment—[Hon. Members: ''No.''] Let me see if I can put that right.

I am shocked that the hon. Member for East Worthing and Shoreham believes that it is wrong for the NCSC to have powers to prosecute. We are dealing with vulnerable children and our intention is to enable the NCSC to monitor and regulate adoption agencies. Where it finds breaches in the regulations, it should be able to prosecute.

The NCSC will inspect adoption agencies every three years, which is more often than at present. Voluntary agencies and local authorities will also be regularly inspected. The NCSC will be able to pick up on poor practice and breaches of regulations. It is important that it has the power to do that and to conduct prosecutions, because it has the right expertise. If individuals claim that they are victims of a breach of regulations, the NCSC will be able to advise them on whether a prosecution is likely to succeed. At the moment, those who fail in that process experience great problems. Our proposals will ensure that a body with expertise on such breaches of regulations will participate, because it is invaluable in ascertaining whether a prosecution is viable.

I emphasise that the process might help an individual who wanted to pursue a claim for negligence. If it had already been proven that an authority had breached regulations and an individual said that the breach had caused harm, the process would be helpful to that individual's claim. If the NCSC discovers a more serious offence than a breach of regulations, it would not prevent the Crown Prosecution Service from pursuing it. I want to assure hon. Members that the legislation does not close off other avenues.

Mr. Brazier: We really must not spend any more time on this small probing amendment, but what the Parliamentary Secretary said is irrelevant. The amendment would not fetter the NCSC from pursuing prosecutions, and all her points would still apply if our amendment were passed. All it states is that other people apart from the commission should be able to pursue a prosecution without contacting the Attorney-General. She might suggest restricting the amendment to those who are genuinely interested parties. However, she has not explained to our satisfaction why the process should be restricted to the NCSC except with the permission of the Attorney-General.

Ms Winterton: We want to ensure that the National Care Standards Commission has full knowledge of how regulations can be breached. That is a very important part of monitoring the process. If that knowledge were taken away, individuals might be prevented from obtaining the prosecution that they want. If the prosecution took place without specialist advice and failed, adoption agencies might get off the hook. This is the normal way to deal with such statutory offences.

Perhaps I might clarify some of the issues that the hon. Member for East Worthing and Shoreham raised about the Attorney-General. Individuals can write to the Attorney-General, and he will give consent if prosecution is backed up by admissible evidence and is otherwise appropriate. It is actually easier to go to the Attorney-General's Office for a review of a decision by the NCSC than to hold a judicial review of a decision of the Crown Prosecution Service not to pursue a complaint on behalf of an individual, which would be the case if subsection (1) were removed. The effect of the hon. Gentleman's amendment would mean that that option was not available.

12 noon

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 4 December 2001