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Clause 12 gives the Secretary of State powers to establish national arrangements for the delivery of IRO functions if evidence suggests that IROs are not securing significant improvements for looked-after children. In his letter of 23 January, the Minister suggested that this function could be conferred on CAFCASS in addition to its existing functions. Although the Conservative Party is no longer declaring open war on CAFCASS, not least due to the current leadership of the noble Baronesses, Lady Pitkeathley and Lady Howarth of Breckland, and their excellent chief executive Anthony Douglas, it is clear from last week’s Ofsted report that CAFCASS still has more to do to recover from its disastrous start in life and therefore would be best concentrating on its core duties. Therefore, I suggest to the Minister that, unless it is the Government’s intention to invoke Clause 12 anyway, the best way of securing the success of Clause 11 is to ensure that IROs are truly independent. I beg to move.
Lord Judd: I apologise to the noble Baroness, Lady Morris of Bolton, for not being here at the beginning of her remarks. I think that she knows why, although I am not sure that that exonerates me. I do not know why she sits on the Benches that she sits on, because this is a characteristically enlightened and progressive amendment and I support her in it.
It seems to me that, however you look at it, the case for the amendment is self-evident. First, I adhere very strongly to the old precept that justice should not only be done but should be seen to be done. Therefore, from the standpoint of reassuring everybody, it is good that somebody should be seen not to be involved with the body that is being reviewed. That seems self-evident. It is the same issue that has arisen in the past with the police, the prisons and all the rest. It is awfully misguided of those who will be reviewed to resist a measure of this kind. I understand it psychologically because there is always the possibility that there is an inherent threat in this and that the person is somehow going to be hostile, but I do not think that experience demonstrates that that is the case. Independent reviewers can be extremely helpful because they bring a different perspective and a free-standing judgment on what is happening and how the situation can be helped.
Having said that, I want to put a qualification on my own commitment: we have to face up to one cultural difficulty that has developed. I hope my noble friend will forgive my making the allusion, but it seems to me that we have got into a culture of passing and failing in reviewing. Taking the example of the old HM Inspectors of Schools, whom I deeply respected as one of the best things in Britain, that was not their approach at all; their approach was to help the school succeed. We would have to be very certain that, whoever does the reviewing, the task is to help people make a success of it, not to pass or fail or to play into the hands of the Sun, the Daily Mail or whatever—to call a spade a spade. With that proviso, the case for having independent judgment is powerful. I hope that my noble friend will be able to respond positively.
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Baroness Sharp of Guildford: From these Benches, I shall speak in support of Amendment No. 20. I shall speak also to Amendment No. 23 in the absence of the noble Lord, Lord Elystan-Morgan. In relation to Amendment No. 20, we endorse all that has been said before. We feel very strongly that, although the Minister has made it clear that stress will be put on the independent role of the IROs, given that their function is to support and challenge the social worker to ensure that the voice of the child is heard and respected in the authority’s decision-making, it is particularly important that the IROs are independent in fulfilling that role. How can people who are employed and paid by a local authority act as the critical friend that they have to be on occasion? It seems to us that they ought to be what the name says—namely, independent. Given the need for these officers to be free to criticise the local authority if they feel that it has not fulfilled its duties in relation to the looked-after child, IROs should not only not be connected with the management of a case but also should not be connected with that local authority.
We had extensive discussion in Grand Committee on the issue raised by Amendment No. 23, on Clause 12 and whether and when it might be invoked. The Minister made it very clear that the department saw Clause 12 as a measure of last resort. Nevertheless, as the noble Baroness, Lady Morris, mentioned, in his letter to us the Minister makes it clear that there is a question of looking to CAFCASS to resolve some of those issues. We noted the not wholly uncritical report from Ofsted about CAFCASS last week and wondered whether it was an appropriate resort for these issues. When we had the discussion in Grand Committee, we were especially unhappy about the prospect of, in effect, nationalising the IRO service, with it being run centrally from Whitehall. That is why we support the amendment tabled by the noble Lord, Lord Elystan-Morgan, because it removes the offending line—subsection (2)(c)—which talks about appointing people to be IROs, and leaves the organisation, like the General Teaching Council, as an overseeing, accrediting and training organisation. We would be very happy to have such an organisation involved with the IROs, but we do not want it to be nationalised.
Baroness Howarth of Breckland: There are two reasons for speaking. The first is to comment on the amendment; secondly, I should like to say a brief word about CAFCASS—I think that that is appropriate. On the amendment, I thought that 10 years was a step too far but, to begin at the beginning, I should like to give local authorities an opportunity to prove whether they can give independence to the IROs. History is against us. I was the first chair of the independent panel, Guardians Ad Litem for London, which drew together guardians from local authorities so that there was a degree of independence. A guardian from one authority could be deployed in another simply because of the difficulties that had been caused by the guardian trying to criticise the work in their own local authority. In that instance, local authorities found a solution in London. It did not stand up throughout the country, which led to the pressure for the independence of the whole organisation and the creation of CAFCASS.
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Was it St Augustine who said, “Make me good, but not now”? CAFCASS might be a good organisation to do this work were it needed, but not now. We know where we are. The Ofsted report did not come as a surprise to us; we know where we are in getting the organisation in order and what are the issues about practice. Practice is especially problematic in two areas; those are the two areas where we are grateful for the inspection, because it helps us to draw attention to the difficulties and to tackle them more robustly than we might otherwise be able to do. However, we look to our regulator to give us support and help, especially when the press picks up issues in the way that they do. I repeat, I think that the board knows exactly where it is in tackling those issues and I am grateful to the noble Baroness for commending our chief executive, who has been relentless in his work to improve the organisation and will be so in pursuing the work for the development of practice.
Should local authorities fail—I sincerely hope that they do not; there is every hope that they can find solutions to the independence question—no doubt CAFCASS will by then be in good health to be reconsidered.
Baroness Butler-Sloss: I support the principle that lies behind the amendment; but I am by no means certain about the 10 years. Picking up what the noble Baroness, Lady Howarth, said, it crossed my mind when looking at the amendment that, although it is fairly clear that it would be premature to invite CAFCASS to take over the duties of the IRO, I believe that in due course it would be admirable for it if it is necessary to have a national service—but, clearly, not now. From my experience prior to CAFCASS, it seemed to be that around the country there were a considerable number of arrangements whereby social workers from one local authority acted as guardians for another.
I just wonder whether this could be an intermediate step and whether local authorities could at least be nudged into finding IROs from another local authority. If they cannot do that, perhaps the Government might consider requiring local authorities to find guardians from outside their own local area, for all the reasons that have been given already. Two points have been made, but I make them again briefly.
First, if you are paid by the same authority as the person whom you are challenging for incompetence, for negligence or for lack of sufficient care—whatever the reason may be—it is extraordinarily difficult to be a whistleblower if you propose to remain in that local authority for the rest of your working life with that particular person, who may be fairly senior and whom you really should blow the whistle on for the sake of the child. It is asking too much of human nature.
Secondly, if this is not asking too much of human nature, there will be a perception among the public, and particularly among the families and friends of the child who is the victim, that because the IRO is in the same local authority, that IRO has not taken enough trouble, even if they have. There are the two things at issue: whistleblowing, which is difficult; and perception. For this Government, transparency and perception are very important, so it is quite surprising that they
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Baroness Howe of Idlicote: I supported this amendment on a previous occasion, and it is back in Committee for very obvious reasons. I will not go into all those reasons again because almost everything has been said. However, I certainly remember the guardian ad litem days in London, which were one way of getting pretty effective independence. The critical friend role is crucial; you must be able to be independent to do that job properly for all the reasons that we have heard so far.
I also very much support Amendment No. 23 in the name of the noble Lord, Lord Elystan-Morgan, which ties in well. There could be a more national body that supplied the training and so on that might well be necessary.
Lord Adonis: Independent reviewing officers should have no vested interest in the case of a child whom they are appointed to review. The existing regulations stipulate that IROs should not be involved in the management of the case or be under the direct management of a person involved in the management of the case or of any person with control over the resources allocated to the case. The statutory guidance, under which local authorities must act, reinforces this requirement. It says:
“The independence of the reviewing officer is essential to enable them to effectively challenge poor practice in the review of cases”.
The guidance offers a number of different models of independence. Two of these models are, I accept, models of IROs who are formally employed by the local authority in question: model 1 is for IROs who are part of the social services quality assurance function, and model 2 is for IROs in the chief executive’s department. Both models are predicated on the basis that the IROs will operate very distinctly from the people whom they are responsible for interacting with, and they could safeguard sufficient independence for the IROs to act.
However, I take cognisance of what the noble and learned Baroness, Lady Butler-Sloss, has said about the importance of looking at other models which have IROs entirely independently employed from the local authority for reasons of perception as well as practice. The third and fourth models promote those options. The third model is of external IROs who could, for example, be employees from voluntary organisations or sessional workers and the fourth model is of reciprocal arrangements under which neighbouring authorities make arrangements for their IROs to review each other’s cases. The fourth model of reciprocal arrangements is, for example, what takes place between Islington
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I hope that we can move progressively in the direction which Members of the Committee have wished us to do; not only having a firm framework of expectations and rules, because this guidance is statutory, about IROs acting fully independently of the cases for which they are responsible, but ensuring that the models of their employment further safeguard that independence.
However, to put this debate in context, I should add that there is currently no consensus on the reasons why IROs have in some areas failed to have the degree of impact on improving professional practice that we all wish to see. It is precisely for that reason we believe that there is insufficient evidence at present to determine whether we should move towards a national service. A strong case is made by practitioners in the field that the shortcomings we see now have a good deal to do with weaknesses in the training and support networks for IROs, the significant variation in caseloads and issues relating to the organisation of IRO services in terms of their training and support, rather than the issue of their independence.
I should also stress that the statutory framework under which IROs operate came into force only in September 2004. We believe that before undertaking any major structural reform, with the inevitable disruption that that would cause to services to children, we should see whether the strengthening measures in Clause 11 will have a real impact in improving outcomes for looked-after children. Of course, we have set in place the powers in Clause 12 should it be necessary to act after further consideration.
This is not simply the view of the Government, it is also the view of stakeholders, notably the Family Justice Council, which in its response to the Care Matters Green Paper said:
“The drastic step of relocating responsibility for IROs outside Local Authorities, for example, within CAFCASS or some other independent organisation demands serious consideration. However, the level of disruption and expense and the unlikelihood of any, or any sufficient increase in CAFCASS resources for the purpose, which such a course would involve is a strong argument against. Moreover, the issue of independence from the Local Authority, perceived or actual, is not, in the view of the Council, the central issue. Steps should be taken to see whether the current position can be improved, radically, before such a drastic course is adopted”.
That is precisely the Government’s strategy. In particular, we are strengthening the IRO role to ensure that there is greater scrutiny of the care plan for each individual looked-after child and supporting their active engagement with the care planning process, so that every care plan really takes account of and gives weight to each child’s wishes and feelings. That includes introducing a duty on the IRO to monitor the local authority’s performance of its functions in relation to the child’s case. That duty will extend beyond the IRO’s existing monitoring role.
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To state again, we will address a new statutory guidance to IROs themselves on the importance of maintaining their independent voice in care planning and how to perform their role more effectively, in particular how to identify and act decisively in cases where they may suspect that a child’s rights are being infringed or the local authority is otherwise in breach of its duties to the child.
In response to the earlier amendments moved by the noble Baroness, Lady Walmsley, I have remarks to make about training and strengthening the training regime in support of IROs. While fully accepting that the current situation needs significant improvement and that the independence of IROs is vital to the integrity of their function, we would not wish to go the whole way with the noble Baroness at this stage. However, we would not have put Clause 12 in the Bill if we did not think it important to have a power to move towards the completely separate employment of IROs from local authorities if the reforms commenced in 2004 and being advanced in this Bill do not have the desired effect.
Lord Judd: As usual, my noble friend has put the case considerately and has tried to meet the arguments put forward, but does he not agree that there is an issue of public credibility at stake here? Of course we are all wary of the worst sensationalism seen in the tabloid press, but it is not just the tabloid press. In recent years too many indelible pictures have been put in the public mind of the treatment of children where things have gone terribly wrong in one way or another. It is becoming a sort of habit—we all hear comments about it among our friends and family—for a bewildered senior official to face the media and say, “We got it wrong”, and then try to explain the situation. This illustrates that there are grounds for anxiety about how far it is possible to generate the really incisive and effective action necessary to ensure that these things do not happen. We need someone who is not an enemy of social workers, who understands the demands and difficulties very well, but is freestanding and able to say, “Look, you people have got to tackle this. Here is where you are falling down”.
Lord Adonis: I understand completely the point my noble friend makes, but the issue here is not about the need for IROs to be independent of the management of the cases they are responsible for reviewing, but the precise steps we take to guarantee that independence and whether we should—if I may put it this way—be migrating to models that do not involve local authorities themselves employing IROs at all. I accept the strength of the case for that, and as I say, we wish to reinforce the guidance in that respect. However, the existing guidance is very clear:
“The IRO must be independent of the management of the child’s case and independent of the resources allocated to that case”.
The guidance also makes it clear that,
“IROs should not be directly line managed by a manager with responsibility for resource allocation to the case”.
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Two of the four models that involve IROs being employed by the local authority they are reviewing involve, in one case, IROs as part of the social services quality assurance function and in the other, IROs coming from the chief executive’s department, thus keeping them clear of direct line management relationships with those they are responsible for reviewing. We are moving in the direction my noble friend wishes to see, but as I said at greater length in my earlier remarks, the question is whether a further major structural upheaval at the present time would be in the interests of the children we are dealing with. Our view, on the best advice, is that we should strengthen the requirements for IROs to operate in an independent manner, but not at the moment take steps that would effectively be a further revolution in the IRO service. That might have the effect of taking the eyes of many IROs off the ball in terms of promoting the interests of the children we are concerned about.
9 pm
Baroness Morris of Bolton: I was going to exonerate the noble Lord, Lord Judd. We had a good supper downstairs during which we continued the Committee stage of this Bill. However, I am not sure that I will do so now, following his remarks on my suitability to sit on these Benches. He is quite wrong about that; I am very much a Conservative. But he is absolutely right about the credibility of the process of independent reviewing officers.
I am most grateful to the Minister, as always, for his thorough explanation, and to all noble Lords who have spoken. He said that IROs should not have any interest in cases they are reviewing. However, they will have a vested interest in the local authority if they are employed by it, and we cannot get away from that. The noble Baroness, Lady Sharp, was right to ask how they could be a true critical friend if they were not independent of the local authority. As the noble and learned Baroness, Lady Butler-Sloss, said, it may be asking too much of human nature, but I liked her idea of nudging local authorities into swapping IROs.
I am pleased that the Minister has recognised there is further to go and that he will look at strengthening the statutory guidance on IROs. When he does, it will be important to make clear to IROs and local authorities that credibility is very important and that decisions should be seen to be independent. In Committee I mentioned that I was deputy chairman of a teaching hospital in the north-west and sat on a complaints panel. However thoroughly we reviewed complaints and despite the fact that I think that we came up with the right answers, the people who had made the complaints far too often simply did not believe us because we were part of the organisation about which they had a concern. So credibility and transparency is very important.
As the Minister has said that he feels that the Government are moving in the right direction, and Clause 12 is always a backstop, for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 21 had been withdrawn from the Marshalled List.]
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Clause 11, as amended, agreed to.
Clause 12 [Power to make further provision concerning independent reviewing officers]:
Lord Adonis moved Amendment No. 22:
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