32.This Bill had its Second Reading on 14 June. It has two substantive Parts:
33.The Department for Education has provided a memorandum on the delegated powers in the Bill13. We wish to draw the following matters to the attention of the House.
34.Clause 11 provides for the establishment of the Child Safeguarding Practice Review Panel (“the Panel”), and clause 12 sets out the Panel’s functions. Both clauses work by inserting new sections into the Children Act 2004: section 16A deals with the arrangements for the establishment of the Panel, and section 16B sets out its functions.
35.The functions of the Panel are:
(a)to identify serious child safeguarding cases in England which raise complex issues or issues of national importance, and
(b)where they consider it appropriate, to arrange for those cases to be reviewed.
36.The Panel is required to carry out those functions “in accordance with arrangements made by the Secretary of State” (section 16B(1)). Subsection (6) sets out a non-exhaustive list of the matters which the Secretary of State may include in the arrangements, such as:
37.We consider that the delegation to the Secretary of State of the power to determine such arrangements constitutes the delegation of a legislative power. The functions of the Panel under section 16B are expressed in very general terms. The arrangements made by the Secretary of State will determine more precisely how those functions are to be exercised, and will accordingly play a significant role in shaping what the Panel is required to do and how it is required to do it. For these reasons, we consider that the arrangements made by the Secretary of State under section 16B(1) should be contained in a statutory instrument subject to the affirmative procedure.
38.The Secretary of State is further able to influence how the Panel carry out their functions by requiring the Panel to have regard to guidance (section 16B(7)). In previous reports, we have noted that a person who is required by statute to “have regard” to guidance will normally be expected to follow the guidance, unless in particular circumstances it has cogent reasons for not doing so.
39.It is not clear how the guidance is intended to dovetail with the arrangements under subsection (1). But it seems to us that the two are likely to operate together in regulating how the Panel are required to exercise their functions. That being so, we consider that the guidance should also be subject to Parliamentary scrutiny with the negative procedure applying.
40.Clause 13 inserts a new section 16C into the Children Act 2004. It requires local authorities to notify the Panel if certain kinds of events occur in their area. They are all cases where a child suffers death or serious harm, including the death of a child in a “regulated setting” (subsection 1(d)).
41.“Regulated setting” is not defined on the face of the Bill. Instead, it is to have the meaning given by the Secretary of State in regulations (section 16C(3)). On page 8 of the memorandum the Department gives examples of regulated settings which appear in legislation relating to childcare and fostering. The Department gives two reasons for leaving “regulated setting” in this case wholly to be defined in regulations. The first is the range of different settings which need to be covered, and the second is the likely need to update the definition to take account of new kinds of regulated setting which arise in the future.
42.Section 16C is the primary means for giving the Panel access to information which will allow it to identify serious safeguarding cases which raise complex issues or issues of national importance, and enable such cases to be reviewed. The definition of “regulated setting” is fundamental to determining the scope of a local authority’s duty to provide information about cases falling within section 16C(1)(d). Given this context, we do not consider the Department’s reasons are sufficient to justify leaving the definition wholly to regulations. While we acknowledge there may be a need to amend the definition of “regulated setting” to take account of future changes, this does not justify leaving the definition wholly to regulations, thereby giving the Secretary of State, in effect, unlimited discretion to decide what falls within it. The need to take account of future changes would still be met if the definition was set out on the face of the Bill, combined with a regulation-making power to make modifications.
43.The delegated power conferred by section 16C(3) of the Children Act 2004 is inappropriate in providing for the definition of “regulated setting” to be set out in regulations. In our view, the definition should be on the face of the Bill, combined with a regulation making power which allows for modifications to take account of future changes.
44.Regulations under section 16C(3) are subject to the negative procedure. The Department’s gives the following explanation for this level of scrutiny:
“This is a narrow power which will only provide for a list of regulated settings, not raising matters of substance which the House will need to debate.”
For the reasons given in paragraph 42 above, we do not accept that this can be regarded as a “narrow power” or as a power which can be described as “not raising matters of substance which the House will need to debate”. In our view, this is a wide power which is also in the nature of a Henry VIII power since it directly affects the scope of a duty which is imposed by primary legislation. As such we consider it should be subject to the affirmative procedure even if changed in accordance with the recommendation in paragraph 43 above.
45.Clause 15 establishes a mechanism for allowing local authorities to test different ways of working in relation to children’s social care. It does this through a regulation-making power which will allow the Secretary of State to exempt a local authority in England from one or more statutory requirements imposed on it by children’s social care legislation, or to modify the way in which such a requirement applies. “Children’s social care legislation” is defined for these purposes in clause 19 and includes a broad range of legislation.
46.The power is subject to limitations and safeguards:
(a)The purpose for which the power must be exercised is set out in clause 15(1): namely, to test different ways of working with a view to achieving better outcomes under children’s social care legislation or the same outcomes more efficiently.
(b)It can only be applied to a local authority if the authority asks the Secretary of State to do so.
(c)There is a three-year limit on the period for which the regulations may have effect. That period can be extended for a further period of up to three years but only if, before extending the period, the Secretary of State has laid before Parliament a report about the extent to which the regulations have achieved the statutory purpose.
(d)There is a requirement to consult which is imposed both on the local authority before asking the Secretary of State to make regulations, and on the Secretary of State before making the regulations.
As we made clear when reporting on a piloting power in the Housing and Planning Bill14, we consider these kinds of safeguards and limitations to be necessary if the delegation of such a power is to be appropriate.
47.In this case the scope of the power is very broad in that it will allow changes to be made to a very wide range of children’s social care legislation. This reflects the purpose of the provision which is to enable local authorities to have as much flexibility as possible in coming forward with ideas for testing new ways of working. However, it means that the power will allow, in a very wide range of circumstances which cannot yet be predicted, the removal of statutory requirements which may themselves have been imposed with a view to ensuring that children are given certain protections, rights or benefits. We consider that in order to ensure effective Parliamentary scrutiny the Secretary of State should be under a statutory duty, at the same time as laying the regulations before Parliament, to lay an explanatory statement which:
48.All regulations under clause 15 are subject to the affirmative procedure unless:
(a)they relate to requirements imposed by subordinate legislation, or
(b)they revoke earlier regulations made under the clause.
49.We consider it is reasonable for the negative procedure to apply where the effect of the regulations is to remove or modify a requirement imposed under subordinate legislation which is itself subject to the negative procedure. However, it seems to us that, as a matter of principle, where subordinate legislation is subject to the affirmative procedure, any power to amend that legislation should be subject to the same level of Parliamentary scrutiny. Accordingly, where regulations under clause 15 remove or modify a requirement which is contained in subordinate legislation subject to the affirmative procedure, we consider that the same level of procedure should apply.
50.We also consider that regulations under clause 15 should be subject to the affirmative procedure where they remove or modify a requirement in subordinate legislation which has been included as a result of an obligation imposed by primary legislation. In our view, even though contained in subordinate legislation, such a requirement is in substance being imposed by primary legislation, and therefore the affirmative procedure should apply.
51.Clause 15(9) provides that, if regulations under that clause would otherwise be a hybrid instrument under the standing orders of either House, it is to proceed in that House as if it were not a hybrid instrument. It is the usual practice of this Committee to draw de-hybridising provisions to the attention of the House so that it can satisfy itself that other mechanisms are available to protect the private interests that would otherwise be protected by the hybrid instrument procedure. Since regulations under clause 15 will relate to particular local authorities, they are liable to affect the interests of those authorities in a way that is different from other local authorities. The interests of local authorities will be protected to the extent that clause 15 only allows regulations to be made where asked for by the local authorities concerned.
52.Chapter 1 of Part 2 confers a power on the Secretary of State to make provision by regulations for the purpose of regulating social workers (“social worker regulations”). The matters which can be contained in social worker regulations are set out in clauses 21 to 35. They include:
(a)the power to appoint the Secretary of State or another person to be the regulator, or to establish a new body to be the regulator;
(b)the power to require a register of social workers to be kept and to make provision about eligibility for registration and suspension and removal from the register;
(c)the power to make provision about professional standards and standards of conduct;
(d)the power to make provision about education and training; and
(e)the power to make provision about discipline of social workers and fitness to practise.
Social worker regulations are subject to the affirmative procedure.
53.These are very wide powers indeed. However, as the Department explains in its memorandum, this approach reflects the way in which the regulation of social workers currently works: social workers are regulated by the Health and Care Professions Council (HCPC) under the Health and Social Work Professions Order 2001, an Order in Council made under section 60 of the Health Act 1999 (“the 1999 Act”). The main driver for these provisions of the Bill is the decision of Government to have a specialist regulator for social workers. The 1999 Act prevents amendments being made to the 2001 Order to transfer the functions of the HCPC to another regulator. Therefore, the decision was taken to enact new provisions for the regulation of social workers. The new provisions maintain the existing approach of using subordinate legislation for the regulation of social workers.
54.Appendix 1 to this Report gives a brief description of the legislative background to the regulation of social workers and the use of delegated powers for that purpose. The following conclusions can be drawn:
(a)Since the enactment of section 124 of the Health and Social Care Act 2008 (“the 2008 Act”), there has been a power to regulate social workers by means of subordinate legislation.
(b)Since the enactment of the Health and Social Care Act 2012 (“the 2012 Act”), the provisions governing the regulation of social workers have been solely contained in subordinate legislation.
(c)The clauses in the Bill are more specific in setting out the provisions which may be included in the regulations. However, the matters covered by clauses 22 to 35 broadly cover the same matters which were authorised to be included in subordinate legislation by both the 2008 Act and the 2012 Act.
55.In the light of this legislative background, we do not consider it inappropriate for the Government to place the regulation of social workers in subordinate legislation, despite the width of the powers being conferred.
56.There are however two respects in which the provisions of the Bill will have a significantly different effect from those of the 2008 and 2012 Acts. Under both those Acts, it was clear on the face of the primary legislation which body was going to be responsible for the regulation of social workers. Further, under both the 2008 and 2012 Acts, the powers were limited so as to prevent the functions of the regulator from being transferred to another body.
57.According to the Department’s memorandum, the fundamental purpose of Chapter 1 of Part 2 of the Bill is to allow for the establishment of a specialist regulator for social workers. Despite this, there is nothing on the face of the Bill identifying who the regulator will be (whether it will be the Secretary of State or another body), or what its membership or constitution will be if it is a new body. We regard it as inappropriate, given the importance of the regulator to the operation of the regulatory system, for the Bill to contain nothing on its face about the identity of the regulator, or about its membership and constitution. We note that the Constitution Committee reached a similar view15. Similarly, we regard it as inappropriate, in the absence of convincing reasons, to include a power to abolish the existing regulator and transfer its functions to another body. This would represent a significant shift from the current position, and no reasons have so far been given justifying this extension of the powers.
58.Clause 35(3) allows social worker regulations to include provisions which themselves would confer a further power to make, confirm or approve subordinate legislation. It says nothing explicitly about the person or persons on whom subordinate legislation making powers may be conferred, or about the matters to which the subordinate legislation might relate. We assume the intention is that the subordinate legislation making powers may be conferred on the regulator or a Minister of the Crown, and that they can relate to any matter dealt with in Chapter 1 of Part 2.
59.Further, there is nothing on the face of the Bill about the level of Parliamentary scrutiny (if any) that would be required for subordinate legislation made under the powers conferred by clause 35(3). We consider the implication must be that clause 35(3) would allow subordinate legislation making powers to be conferred without any Parliamentary scrutiny.
60.Although there are brief references to the powers conferred by clause 35(3) on pages 18 and 19 of the Department’s memorandum, no explanation is given as to how it is expected that these powers will be used. There are however precedents: both the 1999 Act and the 2008 Act confer powers to make subordinate legislation in identical terms.
61.We were disappointed that the Department failed to provide any explanation for including the subordinate legislation making power in clause 35(3), particularly given its breadth, the lack of any explicit constraints on how it might be used and the absence of any requirement for Parliamentary scrutiny. Although we appreciate there may be a need for the regulator to have power to make rules governing matters which properly fall with its competence, we consider any powers need to be clearly defined and to indicate the specific matters which they may cover. On the face of it, clause 35(3) would allow social worker regulations to confer subordinate legislation making powers about any matter covered by clauses 21 to 35, and to do so without the need for Parliamentary scrutiny let alone requiring the affirmative procedure. In our view this makes the delegated powers conferred by clause 35(3) inappropriate despite the precedents in existing legislation.
13 Department for Education, Delegated Powers Memorandum: http://www.parliament.uk/documents/lords-committees/delegated-powers/Children-and-Social-Work-Bill-DPM.pdf
14 21st Report, Session 2015–16, HL Paper 98, paras 37 to 45.
15 Constitution Committee, Children and Social Work Bill [HL], 2nd Report, Session 2016–17,
HL Paper 10, para 5.