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Lord McIntosh of Haringey: My Lords, I certainly did say a few minutes ago that the regulation-making power under Clause 9(1) and (2) is fairly wide. However, these two amendments—particularly Amendment No. 15—refer only to the level of offence under those regulations. If the amendment were passed, it would not allow the House to debate under the affirmative resolution procedure the nature of the offences; it would allow the House to debate only the level of fine for the offences. I do not think that that would take us very far. The same applies to Amendment No. 68 in relation to Clause 59.
Clause 9(3) enables regulations to be made by the appropriate Minister to provide that a person who breaches any provision of the regulations made under Clause 9 commits an offence and is therefore liable on summary conviction to a fine not exceeding level 5 on the standard scale. Let us say that we did as the noble Baroness, Lady Noakes, suggests and provided for an affirmative resolution. Although we would have regulations under Clause 9(1) and (2) subject to the
negative procedure—they could be prayed against—the only matter that would be affected by it is the level of fine.We have sought to follow established practice in this provision, which contains nothing different from what has been done before. All regulations made under the Adoption Act 1976 are subject to the negative resolution procedure except those under Section 3(1), which are not subject to any parliamentary procedure at all. We take the view that the vast majority of the regulations made under the Adoption and Children Bill should also be subject to the negative resolution procedure. I draw noble Lords' attention in particular to Sections 25 and 52 of the Care Standards Act 2000 which contain similar powers for regulations to be made providing that a breach of regulations under that Act—which is just as wide—is an offence. Those regulations, too, are subject to the negative resolution procedure.
I think that the fundamental argument is that about the Delegated Powers and Regulatory Reform Committee. The Committee has reported that,
- "the powers are appropriately delegated and the provisions for parliamentary scrutiny are appropriate".
6.15 p.m.
Baroness Noakes: My Lords, I thank the Minister for that reply. I intended no disrespect to the Select Committee on Delegated Powers. In fact, the Government are not doing as the Committee proposed, but doing something with which the Committee has not disagreed. It is a very different proposition.
The Minister confused me by saying that the amendment would only affect the level of the offence. I cannot immediately see that point but shall consider it further. As far as I can see, this amendment would achieve the effect that I desire. Nevertheless, I am not a practising lawyer and will have to take advice on the point.
What has disappointed me more than anything is that the Government have still not provided information on what will be included in the regulations, particularly information on which offences will incur the penalties mentioned. It is a matter of considerable regret. I shall consider with care the Minister's comments on the inadequacy of my amendment. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Management etc. of agencies]:
Lord McIntosh of Haringey moved Amendment No. 16:
- Page 8, line 33, leave out "in prescribed circumstances"
The noble Lord said: My Lords, this is a minor amendment to Clause 10. Clause 10(3) provides that regulations under Clause 9 may make certain provisions in relation to voluntary adoption agencies and adoption support agencies. Clause 10(3)(c) provides for these regulations to make provision requiring voluntary adoption agencies and adoption support agencies to appoint a manager "in prescribed circumstances". However, it is our intention that these agencies should appoint a manager in all cases. It is our intention that where the agency has a branch, a manager should also be appointed for that branch. This will ensure that all the voluntary adoption agencies and adoption support agencies are appropriately managed. If we left in "in prescribed circumstances", it could cast doubt on whether the regulations can require that managers can be appointed in all circumstances. That is not what we intend, and I hope that this amendment is acceptable to the House.
Baroness Barker: My Lords, given my professional background, I feel that I must ask this question. I do not understand the extent to which the Government feel that they can dictate to voluntary and charitable organisations how they perform some of their functions. I can well understand that such a requirement should be set out in a service agreement or contract, but I really do not know why it should be included in primary legislation. Can the Minister explain why it should be included?
Lord McIntosh of Haringey: My Lords, if these agencies were entirely inward looking and responsible only to each other and to members of their staff, there would be no problem because they could have a co-operative or collaborative arrangement rather than a manager. However, these agencies are responsible to the outside world. They are responsible for implementing legislation. They are responsible to the birth families, to the adopting parents and to the adopted persons. Someone has to be responsible. In the end, it is an identifiable manager who has to be responsible. That is why we think that there should be a manager.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendment No. 17:
- Page 9, line 23, at end insert "or assisting in providing"
The noble Lord said: My Lords, in the consultation document Adopter Preparation and Assessment and the Operation of Adoption Panels: A Fundamental Review, which we published last week, we promised to clarify that panel members may be remunerated for their contribution to the work of the agency. Many panels are currently experiencing problems with recruitment of panel members, with consequences for their ability
to maintain full panel membership and to deal with adoption cases promptly. The stakeholder group involved in the fundamental review strongly felt that the ability of agencies to remunerate panel members is crucial to their ability to tackle the recruitment difficulties that they are experiencing, which will help to reduce delays in the assessment and matching processes. This would also help agencies to construct panels that are more representative of their local communities.There seems to be a problem and some doubt among adoption agencies about whether they have the power to make these payments. We believe that it is important to clarify that in the Bill. I pay tribute to the work of panel members who do an important job. Clearly, it is important that where remuneration is appropriate, they should receive it. We are not talking about huge sums of money but modest payments which I am sure will help agencies and panels to do the job we are discussing as effectively as possible. I beg to move.
On Question, amendment agreed to.
Clause 12 [Independent review of determinations]:
Earl Howe moved Amendment No. 18:
- Page 9, line 39, at end insert "but shall in any event include determinations relating to—
The noble Earl said: My Lords, Amendment No. 18 brings us back to what I consider to be one of the Bill's most significant innovations: the independent review mechanism. It is fair to say that our debates in Grand Committee dispelled several misconceptions about these provisions, at least, I am happy to admit that they did in my case. I am also particularly grateful to the Minister for writing to me fully at the end of July to amplify my understanding of local authority complaints procedures.
I have given a good deal of thought to this part of the Bill during the Recess. As I think I said before, I have a personal antipathy towards the general culture of complaining that we as a society seem to be drifting into. The compensation culture is, of course, another part of that same tendency and it is destructive. However, there are some important areas of our lives where we need long stops or safety mechanisms to second guess, if need be, decisions made by those in authority over us. Key decisions about adoption, when they do not go the way we want them to go, fall into that special category. That is why I believe that all of us involved in this Bill were quick to welcome the inclusion in it of Clause 12 which opens the way to the safety mechanism to which I have just referred in respect of key decisions on adoption.
We spent quite a bit of debating time examining the role of local authorities in handling complaints. I was doubtful—and I have to say I still am—about the ability of many local authorities to run their complaints service in a manner that commands public confidence. Nevertheless, I recognise the force of the argument that the Minister advanced, that in theory at least we have a system of handling complaints against local authorities that is at arm's length from the decision makers and that in principle it is a good thing if local authorities are responsible for keeping their own house in order in a timely fashion and with minimum interference from outside. We should encourage them in that responsibility—the theory is right. Adoption agencies are the bodies which shoulder the ultimate responsibility for decisions about adoptions and the professionals within them need to live by those decisions. In the last resort, the generality of local authority actions are subject to the scrutiny of the local government ombudsman.
So, to use the word that the Minister uttered in Grand Committee—and a very familiar word it is—there is a balance to be struck in terms of the range of determinations which it is wise and sensible to allow the review panel to pronounce upon. I fully recognise that there is flexibility in the clause as drafted to include new matters in the panels' remit in the light of experience over time. However, I suggest that there are four particularly crucial areas which should be included at the outset. I have listed them in my amendment.
A decision to turn down prospective adopters either at the adoption panel, or before they have even reached it, has such far-reaching implications that it is surely right that we give individuals the opportunity to have it reviewed independently. The same applies to a decision which, for whatever reason, restricts the flow of information about the child to the prospective adopters, or indeed, to the child himself. It is almost always right for the would-be adopters to be fully aware of all the relevant data relating to the child's background, his medical history, his behavioural record and so on. Only for exceptional reasons should such information be withheld. For example, if a child has at some time been sexually abused, the adopters simply have to know that in case specialist help is required later. We are talking about a duty of candour in the interests of the child. If that duty is ignored, there should be a right of review.
The last decision for which I believe that it is essential that the review mechanism is available is one which rules out particular prospective adopters as being suitable parents for a particular child. That kind of judgment even for the professional is a highly subjective one. I have heard of many instances where decisions of that kind appear to be manifestly unreasonable, if not perverse.
I realise that this is one issue where I am only likely to persuade the Minister of my point of view if he is more or less on side anyway. I should like to believe that he is. Certainly his helpful letter to me of last July indicated that the matters included in my amendment were ones which the Government felt should or could
(a) the suitability of prospective adopters at the adoption panel stage;
(b) the suitability of prospective adopters at the pre-panel stage;
(c) the supply of information concerning the child to any person including the child;
(d) the suitability of a child for adoption with particular prospective adoptive parents"
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