Seventh Report
Children And Families
Bill
Introduction
1. The Bill had its Second Reading on 2 July.
It is made up of eight Parts each affecting different areas concerning
children and families. Part 1 is concerned with adoption and children
looked after by local authorities, and contains provisions intended
to speed up the adoption process and enable children to be placed
with less delay and disruption. Part 2 is concerned with family
justice and makes changes to the conduct of proceedings involving
children. Part 3 revises the legislation relating to children
with special educational needs. Part 4 makes changes to the system
of registration of childminders by allowing them to register under
the Childcare Act 2006 with childminder agencies rather than directly
with Her Majesty's Chief Inspector of Education, Children's Services
and Skills. Part 5 makes changes to the functions of the Children's
Commissioner. Parts 6, 7 and 8 all relate to employment. Part
6 provides a new right of shared parental leave and statutory
shared parental pay; Part 7 is concerned with time off for ante-natal
care; and Part 8 concerns the right to request flexible working.
2. The Department for Education has prepared
a memorandum for the Committee explaining the delegated powers
in the Bill.[1] We have
found that, in a number of instances (of which a few are mentioned
below) the memorandum could have explained more fully why a delegation
is thought to be necessary, or why a particular level of parliamentary
scrutiny is being proposed. This is not the first time the Committee
has found reason to raise this issue with Government departments
and we expect action to be taken to remedy this failing in the
future.
Clause 3 - Recruitment, Assessment and Approval
of Prospective Adopters
3. Clause 3 amends Chapter 2 of Part 1 of the
Adoption and Children Act 2002 ("the 2002 Act") by inserting
a new section 3A into the 2002 Act which allows the Secretary
of State to give directions. Such directions are able to require
local authorities to make arrangements for certain of their functions
to be carried out on their behalf by other adoption agencies,
which include both other local authorities and adoption societies
registered under the Care Standards Act 2000. The functions to
which section 3A applies relate to the recruitment of prospective
adopters, the assessment of prospective adopters and the approval
of prospective adopters. Under section 3A a direction of the
Secretary of State may be given to individual local authorities,
specific descriptions of authorities, or all local authorities
in England.
4. The memorandum recognises that the power
to give directions under section 3A is legislative in nature.
It states: "As is usual for such powers of direction there
is no Parliamentary procedure". But no examples are given
of other circumstances where similar powers to direct have been
given and we are not persuaded that such an approach is appropriate
here. The scope of the power is such that it could be used to
direct all local authorities in England to make arrangements for
their functions relating to the recruitment and approval of prospective
adopters to be exercised by adoption societies registered under
the Care Standards Act 2000. We consider it inappropriate
to delegate a power of such scope without the exercise of the
powers being subject to parliamentary scrutiny. In our view,
the only circumstance in which it is appropriate for the power
to be exercised without parliamentary scrutiny is where the direction
is aimed at a single named authority and is made because of a
failure on the part of the authority to carry out its functions
to an adequate standard. In all other cases the powers should
be exercisable by statutory instrument subject to the affirmative
procedure.
Clause 6 - The Adoption and Children Act Register
5. Clause 6 amends sections 125 to 131 of the
2002 Act. Section 125 establishes the Adoption and Children Act
Register ("the Register") containing information about
children who are suitable for adoption and about prospective adopters.
Section 125(3) prohibits the Register from being open to public
inspection or search. Under section 129, information in the Register
may only be disclosed, other than for research purposes, to an
adoption agency. Clause 6(4) inserts a new section 128A in the
2002 Act which confers a power on the Secretary of State to make
regulations allowing prospective adopters to search and inspect
the Register. The regulations can restrict the parts of the Register
which prospective adopters would be allowed to search and inspect,
and make access subject to prescribed terms and conditions.
Regulations under section 128A are subject to the negative procedure.
6. We are surprised that the memorandum does
not give any specific indication as to why the Government consider
that the negative procedure offers an appropriate level of scrutiny
in this case. It states, in the context of the amendments made
to sections 125 to 131 as a whole, that the negative procedure
"is the appropriate level of scrutiny for regulations providing
for this level of operational, administrative and procedural detail".
We do not regard it as appropriate to characterise the provisions
made under section 128A as being operational, administrative or
procedural. We believe it constitutes an important change to
the operation of the Register in that it will allow access to
personal and sensitive information which otherwise only adoption
agencies have access to. In our view the negative procedure
does not provide a sufficient level of scrutiny, and regulations
under section 128A should be subject to the affirmative procedure.
The importance of ensuring that the regulations contain appropriate
safeguards was made clear in paragraph 185 of the report of the
House of Lords Select Committee on Adoption Legislation.[2]
We have no doubt that the House will wish to have available to
it the draft regulations in advance of the Committee stage of
the Bill.
Clause 36 - Assessment of Education, Health and
Care Needs
7. Clause 36 is concerned with the carrying
out of assessments of a child or young person's education, health
and care needs (EHC needs assessment). Clause 36(11) allows regulations
to make further provision about EHC needs assessments. This includes
provision about how assessments are to be conducted, about expressing
views and submitting evidence, and about the advice to be obtained
in connection with an assessment. The regulations are subject
to the negative procedure. The Department's memorandum states
this level of procedure is appropriate for the level of procedural
detail required and it notes that some of the matters are already
dealt with in regulations subject to the negative procedure under
the existing legislation (see Schedule 26 to the Education Act
1996 ("the 1996 Act").
8. There is, however, one matter which is to
be dealt with by regulations which is set out on the face of the
1996 Act. Clause 36(11) allows regulations to make provision
requiring the attendance of a person of a prescribed description
in connection with an assessment. The equivalent requirement
is in paragraphs 4 and 5 of Schedule 26 to the 1996 Act. Paragraph
4 allows a local authority to serve notice on the parent of the
child being assessed to require the child's attendance for examination.
Under paragraph 5 the parent commits a summary offence if he
or she fail to comply with the notice. The power conferred by
clause 36(11) is much broader than that conferred by the existing
legislation: it is not limited to requiring the parent to secure
the attendance of the child concerned, but allows a wider range
of persons to be required to attend.
9. The memorandum does not explain why it is
necessary to have the flexibility offered by regulations. Also,
nothing is said in the Bill about the sanction to be imposed.
Imposing a requirement to attend is only meaningful if there
is a sanction for failing to attend. But nothing is said in the
Bill about the sanction which may be imposed under the regulations.
In our view, these matters make this an inappropriate delegation.
We consider that who may be required to attend and the sanction
for non-compliance should be set out on the face of the Bill as
is done under the Education Act 1996.
Clause 44 - Reviews and Re-assessments
10. Clause 44 is concerned with reviews and
re-assessments. Clause 44(1) requires a review of an EHC plan
every 12 months. Clause 44(2) specifies when a local authority
must reassess the educational, health and social care needs of
a child or young person for whom it maintains an EHC plan. It
requires a re-assessment to take place if a request is made by
the child's parent or the young person or by the institution which
the child or young person attends. Clause 44(7) allows provision
to be made in regulations about reviews and re-assessments. It
enables the regulations to specify other circumstances when a
review or re-assessment must take place. It also allows the regulations
to provide for exceptions where otherwise there would be a duty
on a local authority under clause 44 to review a plan or make
a re-assessment. Regulations under clause 44(7) are subject to
the negative procedure.
11. The memorandum notes that regulations made
under the existing legislation relating to reviews are subject
to the negative resolution procedure, and argues that this procedure
is also appropriate for regulations under clause 44(7). There
are however differences in the scope of the regulation making
powers. The existing powers under the 1996 Act would not allow,
as clause 44(7)(b) does, provision to be made about the circumstances
in which it is not necessary to carry out a review despite there
otherwise being a duty to do so under the primary legislation.
In the case of re-assessments, clause 44(7)(b) will replace a
provision currently contained in primary legislation. Section
328(2) of the 1996 Act specifies the circumstances in which a
local authority is not required to carry out a re-assessment.
It is limited to the case where an assessment has been carried
out within six months of the date of the request. There is no
equivalent provision in clause 44. Instead, as is made clear
by the memorandum, the intention is for such provision to be included
in regulations made under clause 44(7)(b) in order to allow greater
flexibility in setting the period of time. But it is noteworthy
that clause 44(7)(b) goes much wider than allowing different periods
of time. It provides a general power to disapply the duty to
carry out reviews and re-assessments in specified cases. We are
surprised that no explanation is given in the memorandum for this
wider scope which would allow a significant derogation from the
duties to review and re-assess imposed under clause 44(1) and
(2). We invite the House to ask the Minister better to justify
the scope of the powers conferred by clause 44(7)(b) which to
us, in the absence of an explanation, appears to be inappropriately
wide.
Clauses 49 and 4- Personal Budgets and Direct
Payments
12. Clause 49 requires a local authority, which
maintains an EHC plan for a child or young person, to prepare
a personal budget if asked to do so by the child's parent or the
young person. Clause 49(3) provides for the detailed provision
about personal budgets to be contained in regulations. This includes
provision about making requests for personal budgets, about the
amount of a personal budget, about the source of the funds for
personal budgets, for making direct payments out of a personal
budget, for the types of provision to which personal budgets and
direct payments may relate, about when and on what conditions
direct payments may be made and when repayment may be required.
Regulations under clause 49 are subject to the negative procedure.
13. Clause 49 in part re-enacts sections 532A
to 532C of the 1996 Act which were inserted by the Education Act
2011 which provided for the piloting of schemes for the making
of direct payments. When reporting on these provisions in our
20th Report of the 2010-12 Session, we recommended that they be
subject to the affirmative procedure. Since we reported, an order
has been made under sections 532B and 532C of the 1996 Act setting
out detailed provisions with respect to direct payments. The
memorandum explains that, with the experience obtained from the
pilot schemes, the negative procedure is now suitable, particularly
as the issues have been subject to a considerable degree of parliamentary
scrutiny. However there are differences between the scope of
regulations under clause 49 and the order making powers under
sections 532B and 532C of the 1996 Act. Clause 49 is not limited
to direct payments but deals more generally with establishing
personal budgets for securing the whole range of provision specified
in an EHC plan. The regulations will cover matters such as determining
the amount of a personal budget and the sources of the funds for
a personal budget (which may include bodies other than the local
authority). Whilst it seems reasonable for the detailed provisions
relating to personal budgets to be set out in regulations, the
effect of clause 49 is that the regulations will set out the entire
system for personal budgets. This goes beyond a power to make
direct payments, and accordingly we consider the affirmative procedure
should apply at least in relation to the first exercise of powers.
14. We have reached the same view on section
4A of the Adoption and Children Act 2002 inserted by clause 4
which is in near identical terms to clause 49. The memorandum
explains the use of the negative procedure because the regulations
will be concerned with "procedural and technical detail".
We take the view that, because these are novel proposals and
the whole system of personal budgets will be set out in the regulations,
the regulations should be subject to the affirmative procedure
at least in relation to their first exercise.
Clause 51 - Appeals
15. Clause 51 provides a right of appeal to
the First-tier Tribunal in respect of certain matters concerning
EHC needs assessments and EHC plans. The matters to which the
right of appeal applies are set out in subsection (2). Subsection
(4) provides for regulations to make provision about appeals and
includes provision about the powers of the Tribunal on determining
an appeal. Under the Education Act 1996 the powers of the
Tribunal on determining appeals are set out on the face of the
Act. No explanation is given in the memorandum as to why a different
approach has been adopted here or as to how it is envisaged the
powers will be exercised. We are not convinced that there is
a need for this delegation, but if there is we consider the affirmative
procedure should apply. It strikes us that here, as in a
number of other provisions referred to in this report, the approach
has been to delegate power to make provision which under the 1996
Act appears on the face of the Bill, without in our view sufficient
explanation for the decision to move the provision from primary
to subordinate legislation.
Clauses 54 and 55 - Appeals and Claims by Children
16. Clauses 54 and 55 allow the Secretary of
State by order to provide that children in England may appeal
to the First-tier Tribunal under clause 51 of the Bill or make
a claim to the Tribunal under Schedule 17 to the Equality Act
2010. Under clauses 54 and 55 all the elements relating to the
right of children to appeal or make claims will be contained in
subordinate legislation; there is nothing on the face of the Bill
other than the order making power itself. Provision is already
made in the 1996 Act for appeals to be made by children in Wales:
see sections 332ZA to 332ZC. But in that case most of the provisions
appear on the face of the primary legislation.
17. Orders under clauses 54 and 55 are subject
to the negative procedure subject to one exception: an order under
clause 55 is subject to the affirmative procedure where it amends
or repeals a provision of primary legislation. In relation to
orders under clause 54 the memorandum states that the Government
believe it appropriate for "the order setting out the procedural
details" to be subject to the negative procedure. In relation
to clause 55, it is noted that the order will make provision about
the same sort of matters as the order establishing the pilot schemes.
18. We are concerned that in such an important
area none of the matters relating to appeals and claims by children
is placed on the face of the Bill. In this context, we cannot
accept that it is appropriate to describe matters such as the
age at which a child can bring an appeal, or the provisions for
determining whether a child is capable of bringing an appeal,
as procedural details. In our view the negative procedure does
not provide a sufficient level of parliamentary scrutiny. These
are novel proposals which will have an important impact on the
rights of children. If the substantive provisions governing
appeals and claims by children are all to be contained in subordinate
legislation, then we consider the order containing them should
be subject to the affirmative procedure, irrespective of whether
the powers are exercised under clause 54 or 55.
Clause 68 - Making and Approval of Code of Practice
19. Clause 67 requires the Secretary of State
to issue a code of practice which gives guidance to local authorities
in England and the other bodies listed in clause 67(1) about the
exercise of their functions under Part 3 of the Bill. Each of
them is required to have regard to the code. Clause 68 requires
a copy of the code to be laid before Parliament in draft and provides
for it to be subject to the negative procedure. This is different
from the position under the 1996 Act under which the code is subject
to the draft affirmative procedure.
20. The memorandum explains the use of the draft
negative procedure by reference to other statutory codes where
the same procedure applies. But the contexts in which those other
codes apply are very different, and no specific explanation is
given as to why the draft negative procedure is appropriate in
this case. The issue of the procedure to be applied to the code
of practice was considered by the House of Commons Education Committee
during its pre-legislative scrutiny of the special educational
needs provisions of the Bill.[3]
That Committee emphasised the importance of the code remaining
subject to "meaningful parliamentary scrutiny". It
recommended the negative resolution procedure but its recommendation
was based on the understanding that the affirmative procedure
would delay and make more difficult the process of revising the
code. We are not convinced that the draft affirmative procedure
would cause greater delay. If anything we consider there may
be circumstances in which the draft negative procedure might cause
greater delay because of the need to wait for the 40-day period
to elapse before the code of practice could be brought into force.
We do not believe that the case has been made out for applying
the draft negative procedure and consider the code of practice
should remain subject to the draft affirmative procedure.
European Union Approvals
Bill
21. This Government Bill does not delegate legislative
power.
Littering from Vehicles
Bill [HL]
22. This Private Member's Bill had its Second
Reading on 19 July. It introduces civil penalties in England for
the registered keeper of a vehicle from which a person contravenes
section 87 of the Environmental Protection Act 1990. That section
makes it an offence to deposit and leave litter in any place that
is open to the air.
23. Subsections (5) to (8) of clause 1 confer
delegated powers. Subsection (5) requires the amount of the civil
penalty to be specified in regulations, as must be the procedure
for imposing penalties and recovering costs (subsection (6)),
and the contents of the notice to be given to those liable to
pay a penalty (subsection (7)). Regulations may also make provision
about appeals (subsection (8)). The bill does not, however, require
any of the regulations to be made by statutory instrument; nor
does it specify who is to make them.
24. We recommend that the Bill should be
amended to address both of these points, and that all regulations
made under clause 1 should be subject to a Parliamentary procedure.
Unless the maximum amount of the civil penalty can be specified
in the Bill itself, we would expect regulations under subsection
(5) of clause 1 to require the affirmative procedure. We also
consider that the affirmative procedure should apply on the first
exercise of powers conferred by subsections (6) to (8) of that
clause; but thereafter the negative procedure would seem appropriate.
Alan Turing (Statutory
Pardon) Bill [HL]
25. This Private Member's Bill does not delegate
legislative power.
Clean Neighbourhoods and
Environment (Amendment) Bill [HL]
26. This Private Member's Bill does not delegate
legislative power.
Draft Legislative Reform
(Regulation of Providers of Social Work Services) (England and
Wales) Order 2013
27. The Committee's role in relation to a Legislative
Reform Order (LRO) is described in our first Report on such an
Order:[4] "When considering
an LRO, our role is not to consider in depth the policy in the
draft order, but to consider whether it is 'appropriate' to be
made under the 2006 Act [Legislative and Regulatory Reform Act
2006]; if so, whether it meets the tests in the 2006 Act; and
to consider the matters considered for other instruments by the
Joint Committee on Statutory Instruments."
28. The tests in the 2006 Act are as follows:
"(a) the policy objective intended to be
secured by the provision could not be satisfactorily secured by
non-legislative means;
(b) the effect of the provision is proportionate
to the policy objective;
(c) the provision, taken as a whole, strikes
a fair balance between the public interest and the interests
of any person adversely affected by it;
(d) the provision does not remove any necessary
protection;
(e) the provision does not prevent any person
from continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise;
(f) the provision is not of constitutional significance."
29. In our 3rd Report of the current Session,
we recommended that the draft Legislative Reform (Regulation of
Providers of Social Work Services) (England and Wales) Order 2013,
laid by the Department for Education (DfE) on 13 May 2013, should
be subject to the super-affirmative procedure. This meant an
extension in the period (to 12 October 2013) during which the
draft Order would lie before the House, before the Government
could arrange for it to be debated. We considered that, while
the LRO met the other tests in the 2006 Act, the Department had
not provided an adequate justification of its statement that the
LRO would not remove any necessary protection.
30. The purpose of the draft LRO is to avoid
the imposition of new burdens on Her Majesty's Inspector of Education,
Children's Services and Skills (HMCI), providers of social work
services, and local authorities if the Government bring into force
Part 1 of the Children and Young Persons Act 2008 Act, allowing
local authorities to delegate certain social service functions
to providers of social work services. In our 3rd Report, we
noted that, while the LRO would remove the requirement for registration
and inspection of providers of social work services in England
by HMCI, the explanation of future arrangements given in the accompanying
Explanatory Document (ED) concentrated mainly on inspection, and
made little reference to registration under Part 2 of the Care
Standards Act 2000. Registration under Part 2 of that Act would
allow the imposition of national minimum standards and requirements
as to the fitness of providers, and would also provide a mechanism
for removing providers who were failing to meet standards. Nothing
was said in the ED about the removal of these protections and
why the protections were no longer considered to be necessary.
31. On 2 July 2013, Mr Edward Timpson, MP, Parliamentary
Under-Secretary of State, DfE, wrote to the Chairman in response
to the Committee's 3rd Report. We are publishing that letter
at Appendix 1. Mr Timpson states his belief that the regime proposed
by the LRO, which would hold local authorities directly accountable
for ensuring that commissioning arrangements maintained appropriate
standards, would be at least as effective as a separate regime
under which providers were subject to regulation.
32. We are not persuaded that this is the case.
In his letter, Mr Timpson says that there is scope within the
anticipated arrangements to meet the specific issues raised by
the Committee in relation to the removal of protections. However,
in our view, the possibilities for doing so which are mentioned
in his letter are, hypothetical and contingent, and do not provide
a secure basis for ensuring that coherent standards for the delegated
provision of social work services are defined, implemented and
enforced.
33. Having considered the letter from Mr
Timpson, we remain of the view that the Department has not justified
its statement that the LRO will not remove any necessary protection.
In the light of this view, we conclude that draft Legislative
Reform (Regulation of Providers of Social Work Services) (England
and Wales) Order 2013 fails to meet the relevant condition set
out in section 3(2)(d) of the Legislative and Regulatory Reform
Act 2006. We recommend that the LRO should not proceed.
1 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
2
Adoption: Post-Legislative Scrutiny (2nd Report, Session
2012-13, HL Paper 127) Back
3
6th Report, Session 2012-13, (HC 631-I), paragraph 129. Back
4
1st Report, Session 2007-08 (HL Paper 11), paragraph 39. Back
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