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Lord Campbell of Alloway: I rise to support the amendment. It identifies a gap in the process and, in my opinion, fills it satisfactorily. But there is no doubt that there is such a gap.
Baroness Andrews: Clause 14 provides default powers for the appropriate Minister which are exercisable where a local authority has failed, without reasonable excuse, to comply with any of its duties imposed by the Bill or Sections 1 or 2(4) of the Adoption (Intercountry Aspects) Act 1999.
It introduces a specific default power for adoption, modelled on Section 84 of the Children Act 1989, and brings it into this new adoption legislation. It replaces, in relation to adoption, the general default power currently provided by Section 7D of the Local Authority Social Services Act 1970. This is an aspect of the role of consolidation the Bill plays in relation to adoption as a whole.
The appropriate Minister may make an order containing directions to ensure that the local authority complies with the duty within the period specified in the order.
The noble Earl has addressed Amendments Nos. 47 and 48 to the absence of a link between the provisions in Clause 12 for the independent review mechanism and this clause. It appears that the intention is to ensure that where a failure comes to light as the result of an independent review, the appropriate Minister may make a default order.
However, I suggest that the effect of the amendment is to narrow the scope of Clause 14. Perhaps I may explain why. Under Clause 14 the appropriate Minister may make a default order using any information that is available to him about a local authority's failure to comply with its duties. That information can come in a variety of ways. It could come through social services inspections reports, through the courts and, after April 2003, from the National Care Standards Commission which will be inspecting adoption authorities.
We would also expect the independent review panel, which is set up under Clause 12, to inform the Minister when it becomes apparent that there is a serious failure on the part of a council. While one would not want to generalise, but one could imagine a range of serious failures in relation to the process of making adoption orders that could be based on previous bad practice. It is our expectation that the review will be looking out for such matters. The appropriate Minister could use that information when making a decision about whether to make a default order.
These amendments would therefore restrict the appropriate Minister's flexibility to draw on all forms of information. They would permit him to exercise his default powers only where, as the result of an independent review, the local authority was found to have failed, without reasonable excuse, to discharge one of its duties. Such a restriction could not be justified. It is essential for the appropriate Minister to be able to exercise his default powers where he is aware of such a failure, regardless of the way the information reaches him.
I also suggest that the amendments might make it more difficult for the Minister to intervene. The default power is intended to be used where there have been a number of failures on the part of the local authority. Not all cases of failure would, however, result in an application being made to the independent review panel. Not everyone, for example, would want an independent review. That would mean that the Minister would be presented with other forms of evidence that would not have been reflected in a review panel determination. I do not believe that that was the intention of the amendments, but this is the effect that they would have.
I hope that I have been able to reassure Members of the Committee that the powers in Clause 14 are broad enough in scope for the Minister to make a default order using information about a local authority's
failure to comply with its duties, which is made available to him through the entire independent review process.
Baroness Thomas of Walliswood: Our Amendment No. 48 is similar to Amendment No.47. I believe there are only a couple of words that are different. I suspect that part of the motivation behind the measure is inherent in the word "independent", as opposed to something which is just done by the Minister himself. It may be that the Minister's reply, if looked at in its entirety on a sheet of paper, will satisfy us that we have the independence that we require without necessarily going ahead with the amendment. We will have another look at it before a later stage of the Bill.
Earl Howe: That was a very helpful reply from the Minister. The amendment was really designed to tease out how this process would work, and what the link would be between the independent review process and the Minister's own powers. I quite see that the amendment, albeit unintentionally, restricts the scope for action, and that is not, of course, what we would seek to place on the face of the Bill. I also recognise what the Minister said initially, that this is designed to reflect the model first used in the Children Act 1989, and of course there is an advantage in having that consistency.
As the Minister will be aware, we feel that the independent review process needs to be broader in its own scope, but I take her point that whether or not that happens, the Minister's own ability to act should not be fettered, and what she has said will make the whole process much clearer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 49 not moved.]
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath) moved Amendment No. 50:
- After Clause 15, insert the following new clause—
The noble Lord said: I have spoken to this amendment in a previous group. I beg to move.
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clause 17[Placement for adoption by agencies]:
Lord Clement-Jones moved Amendment No. 51:
The noble Lord said: We now come to Chapter 3 of the Bill, which is a very important and quite lengthy chapter, dealing with placement for adoption and adoption orders. I would call Amendment No. 51 a probing amendment except that, of course, in Grand Committee all amendments really by definition are probing.
The essence of this particular amendment is to discover precisely what the duties of an adoption agency are under Clause 17. What are the qualifications for the use of their powers under subsection (1)(a), or (b), when they are making a decision about placing a child for adoption, or the use of the power to place a child for adoption with prospective adopters, or the decision to leave a child with those with whom a child has been placed as prospective adopters? What process should the agency have gone through in order to make a decision that either paragraph (a), or paragraph (b) should be invoked? That is why this particular amendment, the wording of which is as follows,
"DISTRIBUTION OF FUNCTIONS IN RELATION TO REGISTERED ADOPTION SOCIETIES
After section 36 of the Care Standards Act 2000 there is inserted—
"36A VOLUNTARY ADOPTION AGENCIES: DISTRIBUTION OF FUNCTIONS
(1) This section applies to functions relating to voluntary adoption agencies conferred on the registration authority by or under this Part or under Chapter 2 of Part 1 of the Adoption and Children Act 2002.
(2) Subject to the following provisions, functions to which this section applies are exercisable—
(a) where the principal office of an agency is in England, by the Commission,
(b) where the principal office of an agency is in Wales, by the Assembly.
(3) So far as those functions relate to the imposition, variation or removal of conditions of registration, they may only be exercised after consultation with the Assembly or (as the case may be) the Commission.
(4) But—
(a) where such a function as is mentioned in subsection (3) is exercisable by the Commission in relation to an agency which has a branch in Wales, it is exercisable only with the agreement of the Assembly,
(b) where such a function as is mentioned in subsection (3) is exercisable by the Assembly in relation to an agency which has a branch in England, it is exercisable only with the agreement of the Commission.
(5) The functions conferred on the registration authority by sections 31 and 32 of this Act in respect of any premises of a voluntary adoption agency are exercisable—
(a) where the premises are in England, by the Commission,
(b) where the premises are in Wales, by the Assembly.
(6) In spite of subsections (2) to (5), regulations may provide for any function to which this section applies to be exercisable by the Commission instead of the Assembly, or by the Assembly instead of the Commission, or by one concurrently with the other, or by both jointly or by either with the agreement of or after consultation with the other.
(7) In this section, "regulations" means regulations relating to England and Wales."
Page 12, line 12, leave out "An adoption agency" and insert "Where an adoption agency is satisfied that a child ought to be placed for adoption it"
"Where an adoption agency is satisfied that a child ought to be placed for adoption"
is a useful way of teasing out what duties the agency should have. Indeed, it would ensure that an agency had to go through a process of decision-making. That is by no means clear from the existing wording of the
Bill. It is important that the process should be gone through and be susceptible to legal challenge if it is not correctly followed. I beg to move.
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