Adoption and Children Bill

[back to previous text]

Mr. Llwyd: With respect, I am not convinced by the Minister's reply, despite the advice given to her. The words

Column Number: 837

    ''discharge of their functions under section 14F''

mean a local authority's provision of support services under that new section. We have been discussing the inability or unpreparedness of local government to provide those services, which is totally different.

Mr. Bellingham: My hon. Friend is spot on.

Jacqui Smith: Would the hon. Gentleman care to advise his hon. Friend to read proposed new section 14F(3)?

Mr. Bellingham: Indeed. I would like to read it in the light of our amendment having been accepted, but that will not be the case, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 248, in page 60, line 25, leave out 'may' and insert 'must'.

The Chairman: With this it will be convenient to take the following amendments: No. 246, in page 60, line 29, leave out 'may'.

No. 249, in page 60, line 29, after 'particular', insert 'will'.

No. 250, in page 60, line 30, leave out 'or' and insert 'and'.

Tim Loughton: We continue in a similar vein, and I am not optimistic about our chances, given the previous foray. However, we will go through the motions.

Our efforts to beef up the provisions were appropriate in relation to adoption support services—[Interruption.]

The Chairman: Order. Will hon. Members please take their conversations outside? They are a bit distracting.

Tim Loughton: I cannot say too many times that if measures are not put in primary legislation, they will not be treated as a priority by the local authorities that provide the services if their resources are stretched, as is often the case. The Bill messes about with wishy-washy language, stating:

    ''The Secretary of State may by regulations make provision''.

What does that actually amount to? There must be a ''must'' requirement, and amendment No. 248 would introduce one.

Amendments Nos. 246 and 249 go together and relate to proposed new section 14F(6). Again, we want to strike out ''may'', but this time we would replace it with ''will''. I do not know what argument there can be about those amendments, because we are simply saying that the regulations ''will'' make provisions for the whole list of items in paragraphs (a) to (h). I cannot understand why the Bill should not be beefed up in that way.

Amendment No. 250 refers to subsection (6)(a). The change from ''or'' to ''and'' may seem purely semantic to some people, but the regulations must detail both what assessment will be carried out and how it should carried out. I cannot understand why it should be an either/or scenario. If provisions are made about the

Column Number: 838

way in which an assessment is carried out, we need to know the details of that assessment; likewise, if there is provision detailing the sort of assessment to be carried out, we need further qualification of how that will be done.

Our amendments may be small, but they would beef up a clause with which we all agree. We want to give the clause a few more teeth.

Jacqui Smith: The arguments relating to the ''must'' and ''may'' amendments are twofold. First, hon. Members need reassurance that the Government intend, as they have publicly stated, to put in place what is necessary to ensure that there are special guardianship support provisions. Secondly, there are technical questions about whether it is appropriate to use ''may'' or ''must'' in relation to regulations.

First, to convince people that the Government are serious about these matters, it is worth pointing out that we made a positive decision to include in the part of the Bill that relates to special guardianship a component that deals specifically with special guardianship support services. That shows the importance of the provision of those support services to making special guardianship a success. We included in that component a right to an assessment for children or special guardians; that right was not in the White Paper, so we have gone further than we originally proposed.

In proposed new section 14F(1), we make it clear that each local authority must make arrangements for the provision of special guardianship support services in its area, and outline what those arrangements should include. The regulations will give more detail about services and do not relate to the fact that something is to be provided.

The amendments refer to particular subsections of the clause. Subsections (2) to (8) of proposed new section 14F govern the assessment process for the special guardianship support services and, when special guardianship support services are to be provided, the arrangements for their provision.

Subsection (5) gives the Secretary of State the power to make regulations governing the provision of assessments for special guardianship and the preparation and reviewing of plans for the provision of special guardianship. Subsection (6) specifies the matters that regulations made under subsection (5) may cover: they include the type of assessment made, the way in which plans are drawn up, and the considerations to which local authorities are to have regard.

The amendments would require the Secretary of State to make regulations under subsection (5) rather than give him a permissive power to do so. That is inappropriate. I have tried to spell out before why it is inappropriate; perhaps I shall have more success this time. To put into legislation that the Secretary of State ''will'' produce regulations is to take it for granted, to presume, or to guarantee that Parliament will approve any regulations that the Secretary of State sets out to make. That would mean that the Secretary of State might not be able to comply with the duty placed on him by the Bill to make the regulations. Therefore,

Column Number: 839

something that was laid down in legislation might not be capable of being delivered if Parliament refused to allow the making of the regulations.

The argument is a circular one. I do not expect that the regulations referred to in the provision will be rejected by Parliament, but it would be illogical to set up a potential circle, whereby it was impossible to deliver what was laid down in legislation.

The amendments to subsection (6) would compel the Secretary of State to make regulations in all the areas listed in paragraphs (a) to (h). That would undermine the flexibility of the current approach, which allows the Secretary of State to consider which areas require regulation and to prepare draft regulations for consultation with interested parties and stakeholders before laying them before Parliament for its consideration.

Amendment No. 250 is puzzling, although I understand the thinking of hon. Member for East Worthing and Shoreham. I assure him that his amendment does not make much difference to the Secretary of State's power to make regulations about the assessment process. The use of the word ''or'' does not in this case mean that it would be possible to make regulations either only about the type of assessment that was to be carried out, or only the way in which it was to be carried out. I assure the hon. Gentleman that it is possible to make regulations that cover both.

I hope that with those assurances, a further explanation of the legitimate use of ''may'' to provide a permissive power to make regulations, and a commitment from the Government to ensure that the special guardianship support services become a reality after full consultation with stakeholders, the hon. Gentleman will feel able to withdraw his amendment.

Tim Loughton: I was not optimistic about the Minister's response, but I thought I might give it a go and then have the argument on another day. However, in seeking to make her case more forcefully one more time, the Minister has given us the most appalling arguments that we have yet heard from her.

The Minister said that in requiring the Secretary of State to make regulations, we might bind him to something that he might not be able to deliver, because Parliament might not agree to it. If Parliament believes that regulations that the Secretary of State wants to impose are duff regulations, should it not have the right to say so? That is the thrust of the Minister's argument, and it is another example of the terrible arrogance of a Government who regard Parliament as an encumbrance and a nuisance. They have to go through the processes, but they think that everything should be done by provisional regulations for which they do not even need a Committee's approval.

Mr. Julian Brazier (Canterbury): Perhaps we can understand the reasoning behind the Government's decisions on this matter in the light of the highly effective activities of our hon. Friend the Member for Stone (Mr. Cash), who has shown repeatedly that statutory instruments brought before the House are

Column Number: 840

legally invalid. One of the Ministers in the Room has experienced that at first hand. That may be the reason why they resist the wording that we suggest.

Tim Loughton: My hon. Friend is right.

This debate has greatly annoyed me and it will anger people outside the Committee as well. It is another example of the Government's tendency to deal with as much legislation outside Parliament as possible. The Minister described the situation that would prevail if the amendment were accepted, in which Parliament would have a say in the regulations, as illogical and potentially circular. That is a terrible indictment of the way in which the Government perceive the democratic parliamentary process.

5.15 pm

Jacqui Smith: I am sorry that I did not make myself clear. The Government take precisely the opposite position. If we were to go down the route prescribed by the hon. Gentleman, it could be argued that the Secretary of State is bound to make regulations even if Parliament petitioned to annul them under the negative resolution procedure.

Previous Contents Continue

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

©Parliamentary copyright 2002
Prepared 15 January 2002