Date laid: 21 April 2020
Parliamentary procedure: affirmative
This instrument adds five public authorities to Schedule 4 to the Investigatory Powers Act 2016 (“the 2016 Act”), which lists those public authorities permitted to obtain communications data, and makes minor amendments in relation to the public authorities already on the list. This instrument follows an enhanced affirmative procedure set out in section 268 of the 2016 Act: it requires the instrument to be laid before the House in draft for 40 days before it can be approved by a resolution of each House. Within 30 days of laying, either House may pass a resolution in respect of the instrument or a committee charged with reporting on the Regulations may make a recommendation about the instrument, in which case an enhanced procedure under section 268(6) to (9) of the 2016 Act applies. Whilst we have some comments to make about the way the explanatory material is presented, we make no recommendations in respect of this instrument.
The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.This enhanced affirmative instrument has been laid by the Home Office under section 268 of the Investigatory Powers Act 2016 (“the 2016 Act”) and is accompanied by an Explanatory Memorandum (EM) and, in accordance with the requirement in section 268(3) of the 2016 Act, “a document which explains the regulations” setting out the Secretary of State’s reasons for proposing each of these bodies for inclusion. 1
2.Section 268 of the 2016 Act provides for an “enhanced affirmative procedure” whereby an instrument laid under the Act must be laid before Parliament in draft, along with an explanatory document, for 40 days2 before it can be approved by resolution of each House. Within 30 days of laying, either House may pass a resolution in respect of the instrument or a committee charged with reporting on the regulations may make a recommendation about the instrument, in which case an enhanced procedure under section 268(6) to (9) of the 2016 Act applies. The enhanced procedure requires the Secretary of State to have regard to any representations, any resolution of either House and any recommendations of a relevant committee made within a 60–day period after laying. If, at the end of that period, the regulations are approved by each House, the Secretary of State may make them. If he or she wishes to proceed with the regulations but with “material changes”, then revised draft regulations, along with a statement summarising the changes proposed, have to be laid. If this revised version of the regulations is approved by each House, the Secretary of State may then make them.
3.This instrument adds five public authorities to Schedule 4 to the 2016 Act. Schedule 4 lists those public authorities permitted to obtain communications data. “Communications data” is described in the EM (paragraph 7.1) as:
“information about communications: the ‘who’, ‘where’, ‘when’, ‘how’ and ‘with whom’ of a communication but not what was written or said. It includes information such as the subscriber to a telephone service. Law enforcement, the security and intelligence agencies and other public authorities may obtain this data from Telecommunications Operators if the stringent safeguards in the [2016 Act] are met.”
4.The five additional public authorities are:
5.We noted that the first three of these organisations had been removed from those permitted to use investigatory powers in 2015 by the Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2015 (SI 2015/228).3 In response to our request for an explanation for the change in policy, the Home Office said:
“the public authorities had their powers removed at the time as they were not able to demonstrate that their continued access to communications data was strictly necessary and proportionate.
When removing powers from these public authorities, the Government considered the statutory responsibilities of the authorities, the seriousness of the offences they investigate and the number of requests that they made per year. Since then, the public authorities have submitted new business cases informed by their experiences of not having powers to obtain communications data, changes in circumstances and experience of working with local police forces.
The Home Office evaluated their new detailed business cases for communications data powers and, as circumstances have changed, is now satisfied that to grant powers would be necessary and proportionate. The complexity of the crimes they investigate has increased and their specific expertise and experience often make them better placed to investigate the crimes in the first instance before handing over to local police forces if relevant.
Each public authority submitted a detailed case study which formed part of a 12-week consultation with the Investigatory Powers Commissioner to ensure their need for powers are necessary and proportionate.” Further detail is provided in the additional schedule.”
6.The instrument also makes minor amendments to the names of public authorities and the minimum office, rank or position that must be held by Senior Designated Officers to obtain communications data within public authorities.
7.Section 268(3) of the 2016 Act requires the Secretary of State to lay “a document which explains the regulations” alongside the draft regulations. Although such a document has been laid in accordance with this provision, the EM does not indicate where to find it and itself only provides information on the application of the Environment Agency. This is unhelpful to the House and, more generally, to the wider public. We therefore take the view that the EM should be revised so that those reading it are made aware of the information contained in the additional explanatory document.
8.Whilst we have commented on the presentation of the explanatory material accompanying this instrument, we make no substantive recommendations in respect of it.
Date laid: 23 April 2020
Parliamentary procedure: negative
This instrument makes extensive changes to statutory requirements in relation to adoption and fostering services and children’s residential care and the responsibilities of local authorities in these areas. The Department for Education says that the changes are needed to support children’s social care services which are under increased pressure during the pandemic. While the changes are temporary, the Committee notes that serious concerns have been raised about their potential impact on some of the most vulnerable children. The Committee regrets that the Children’s Commissioner, amongst others, was not consulted and that guidance was not published earlier. The Committee understands the need for temporary measures during the pandemic but is fundamentally concerned about the changes potentially being made permanent by the Secretary of State. These are issues that the House may wish to explore.
The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
9.The Department for Education (DfE) has laid these Regulations with an Explanatory Memorandum (EM). The instrument amends temporarily ten sets of Regulations, dealing with adoption and fostering services and children in care. DfE says that the changes are needed to support local authorities to manage the increased pressure on children’s social care as well as staff and carer shortages during the pandemic. According to DfE, the changes “prioritise the needs of children, whilst relaxing some administrative and procedural obligations to support delivery of children’s services but maintaining appropriate safeguards”. The instrument will remain in force until 25 September 2020, mirroring the sunset date for provisions in the Coronavirus Act 2020.
10.The instrument does not comply with the convention that statutory instruments should be laid before Parliament for at least 21 days prior to coming into force. DfE explains that it was not possible to meet this convention as children’s social care resources are “stretched as a result of staffing shortages and an increased demand for services”. Waiting 21 days, according to DfE, would have “put extraordinary pressure on local authorities, providers and services to try to meet statutory obligations while continuing to provide care for vulnerable children and young people during the outbreak”. DfE says that following the announcement of the lock-down, it was not able “to assess the extent and impact of the ‘stay at home’ rules on children’s social care immediately and needed to consult with the sector to understand the impact and practical difficulties local authorities would have in administering their duties”.
11.The instrument amends statutory timeframes for the review of complaints about children’s services where a complainant is dissatisfied with the original response from the local authority, so that such reviews may be dealt with as soon as is “reasonably practicable”, rather than within 20 days (for the complainant to request a panel review); 30 days (for the panel to meet); five days (for the panel to share its report with the local authority and complainant), and 15 days (for the local authority to respond to the panel’s report). The instrument also allows local authorities to publish the inspection report and their written statement of action following an Ofsted inspection of children’s services or local joint services as soon as is “reasonably practicable”, rather than within the statutory timeframe of 70 working days.
12.The instrument changes the requirements for medical and Disclosure and Barring Service (DBS) criminal record checks, so that rather than being required before applicants can move to stage 2 of the adoption process, the instrument allows those checks to be completed during stage 2. The instrument also relaxes the current deadlines for stage 1 and stage 2 of the process, allowing agencies to meet them where “reasonably practicable” during the pandemic. The six months limit on the period that a prospective adopter may leave between stage 1 and stage 2 is suspended.
13.The instrument removes temporarily the statutory requirement for adoption panels whose role it is to make a recommendation to an adoption agency on the suitability of prospective adopters. DfE says that because of staff absences during the pandemic, it will not always be possible for such panels to be quorate. If an agency does decide to conduct a panel, the minimum number of panel members needed is reduced from five the three.
14.The instrument also suspends temporarily the duty on adoption agencies to review a child’s plan for adoption once the child has been approved for adoption or has been placed with an adopter, where such a review is “not reasonably practical”, unless the agency has concerns about the welfare of the child.
15.The instrument removes a requirement on local authorities to visit a child where they have been notified that the child is to be fostered privately, so that such visits may take place as soon as is “reasonably practicable”, rather than within the statutory framework of seven days, and every six or 12 weeks in subsequent years. The Committees notes that the EM only refers to the statutory requirements in general terms, without providing details of the actual timescales. The instrument also temporarily removes the obligation to review the approval of foster carers within a year of their approval, and thereafter at yearly intervals, so that they can be completed as soon as “reasonably practicable”.
16.The instrument relaxes a requirement to notify Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (“the Chief Inspector”) of certain events, so that notifications do not have to be made without delay but “as soon as reasonably practicable”. The EM does not explain that such events include the notification of criminal convictions. We asked the Department why this change was considered necessary, given the vulnerability of children in foster care. The Department told us that the changes only related to the “people responsible for the running of a fostering agency rather than those with direct contact with vulnerable children. No changes have been made in respect of notification as regards foster carers.”
17.The instrument also removes a requirement to notify the Chief Inspector of the “outbreak at the home of a foster parent of any infectious disease” and, again, this change is not explained in the EM. We asked DfE why this specific requirement was lifted during the pandemic. The Department explained that the aim was to “prevent an administrative burden on Ofsted and local fostering providers by requiring a formal report of every case of COVID-19 that is confirmed in fostering placements. The change was made with the approval of Ofsted.”
18.A fuller explanation of the changes made to the notification requirements should have been included in the EM.
19.The instrument makes fostering panels optional. The role of such panels is to assess the applications of potential foster carers, the ongoing suitability of existing foster carers and any cases where a foster carer was deemed not suitable by the fostering service. This scrutiny role is advisory. The changes mean that where no fostering panel is set up, decisions will be made by the fostering service providers based on their own assessment. Where a panel is formed, the number of people required is reduced.
20.The instrument temporarily allows foster carers to self-report medical information, as, according to DfE, they may not be able to obtain a medical report from a doctor during the pandemic. Additionally, the instrument enables an assessment of the suitability of foster carers to continue while waiting for medical information and DBS checks, with flexibility added to the timescale for notifying prospective carers if they are found unsuitable.
21.The instrument allows a child to remain in the same short break placement for up to 75 days instead of the statutory requirement that each short break placement may only last for up to 17 days (up to 75 days in total over a 12-month period). Similarly, the timescale for emergency placements is increased. The significant extension from six days to 24 weeks is not set out in the EM. The instrument also relaxes the requirements for a social worker to visit children who are being fostered or are in other forms of care. While the EM does not provide any further detail, the Department told us that such visits currently need to take place within seven working days of the local authority having been notified of a private fostering arrangement, and that, in addition, local authorities are required to visit children who are being fostered privately at intervals of not more than six weeks in the first year of the arrangement and at intervals of not more than 12 weeks thereafter. This instrument allows these visits to take place “as soon as reasonably practicable” and also clarifies that the visits may be conducted remotely by telephone or video link.
22.The instrument relaxes the timescale for formalising a placement plan. The EM does not provide details, but the Department explained that rather than requiring such a plan to be in place within five days of the child commencing a placement, this can now be done “as soon as reasonably practical”. In relation to reviews, the DfE told us that a local authority will still be required to review a child’s case within 20 working days of the child being placed into care, and to carry out a second review not more than three months after the first. For third and subsequent reviews, the instrument allows these to be carried out where “reasonably practicable”, rather than at intervals of not more than six months.
23.A fuller explanation of the extent to which certain timescales in relation to fostering services have been changed by this instrument should have been included in the EM.
24.The instrument allows individuals who are not connected to the child to be approved as temporary foster carers. This is a departure from the current requirements, under which only a relative, friend or other person connected with the child may be approved as a temporary foster carer. The instrument also extends the maximum length of such placements from 16 to 24 weeks. According to DfE, the aim is to help to provide additional flexibility and capacity should there be a temporary increase in the need for foster care placements, as many foster carers are regarded as vulnerable to coronavirus because of their age.
25.The instrument removes temporarily the requirement for a nominated officer from the local authority to approve fostering for adoption placements. The nominated officer is a senior officer within the local authority who has been appointed by the Director of Children Services. DfE told the Committee that this requirement has been removed:
“due to other priorities [nominated officers] may have during the Covid-19 crisis. The responsible authority (which is the local authority looking after the child) still has to satisfy themselves that the placement is in the best interest of the child, that the other relevant regulations have been applied correctly and notify the birth parents of the placement plan (if their location is known), which would have been the role of the nominated officer.”
26.The instrument makes temporary changes to the standards that residential family centres must meet, so that centres may use “reasonable endeavours” during the pandemic when providing care, treatment and education and supervising residents; the timeframes for complaints are relaxed; and registered providers must visit their centres at least once a month “as far as reasonably practicable” during the pandemic and may interview residents and staff by telephone or video-link.
27.The instrument requires children’s homes to meet obligations in relation to the delivery of care regarding health and development “as far as reasonably practicable” during the pandemic. DfE says that in the context of school closures and staffing shortages, children’s homes will need to use “reasonable endeavours” to ensure children make measurable progress towards achieving their educational potential.
28.The instrument enables children’s homes to enforce a temporary deprivation of liberty where a Public Health Officer uses powers under the Coronavirus Act 2020 in relation to a young person who is infectious or suspected of being infectious. DfE emphasises that the amendment cannot be used to enforce general restrictions on movement which amount to a deprivation of liberty which will continue to require an application for a court order. We asked DfE whether there will be any oversight of or reporting on the use of this provision. The Department told us that there is “nothing in the Coronavirus Act 2020 that requires reporting of this use of power but there are requirements on the Public Health Officer to assess the person within 48 hours and consider which restrictions are necessary […]. This is also subject to a right of appeal to the [magistrates’ court]”.
29.The instrument provides that, where a children’s home is unable to provide a suitable place for a child to meet privately with their parents, relatives, or advocates during the pandemic, such meetings may take place remotely over the telephone or by video-link. The instrument also makes amendments to allow “reasonable endeavours” to be made to meet the requirement of an independent person visiting the children’s home at least once a month, and allow such visits to take place via video-link or other electronic means.
30.The instrument temporarily revokes the minimum intervals for Ofsted inspections of children’s homes, residential family centres and other establishments and agencies, although Ofsted may still carry out such inspections and, according to the Department, will continue a risk-based approach.
31.The instrument contains several savings provisions to enable certain processes to continue under the temporary rules once they have started, beyond the expiry date of the instrument. These savings provisions apply, for example, to the processes used in the assessment of the suitability of potential adopters or foster parents. A savings provision is also used to ensure that when a child is being deprived of their liberty through the exercise of powers in the Coronavirus Act 2020, the children’s home can continue to enforce this deprivation of liberty after the instrument itself has expired.
32.The EM states that key stakeholders across the children’s social care sector were consulted including Ofsted, the Association of Directors of Children’s Services, the Local Government Association, Principal Social Workers and Practice Leaders in local authority children’s social care. The Children’s Commissioner was informed.
33.The Children’s Commissioner has issued a statement expressing serious concerns about the instrument,4 concluding that it makes “significant temporary changes to the protections given in law to some of the most vulnerable children in the country—those living in care”. She has criticised that there was “minimal consultation” and has challenged the Department’s view that the changes are needed to ease pressure on local authorities’ social care staff. The Commissioner has asked the Department to revoke the instrument or, “at an absolute minimum”, publish guidance to “make clear that these changes will only ever be used as a last resort and for as short a time as possible”. Other organisations have also criticised the instrument. We are grateful for the submissions we have received from Article 39, the British Association of Social Workers and UNISON which we have published on our website.5 Concerns about weakening protections and about the Department’s claim that the changes are needed because of the pressures of lockdown were also raised in the House through a Private Notice Question asked by Lord Watson of Invergowrie on 30 April.6
34.Asked why the Children’s Commissioner was not consulted, the Department told us that:
“The Department considers that the changes are minor in nature and do not constitute infringements on children’s rights. We have not amended any statutory duties in primary legislation, therefore, the main statutory duties on local authorities and others in regards to overall safeguarding and welfare duties remain in place and unchanged. The vast majority of statutory duties in secondary legislation also remain unchanged. The Regulations do not reduce or remove any responsibility that local authorities have towards children and the duties for local authorities to act in the best interests of children are still paramount.”
35.The Children’s Commissioner has a statutory duty to promote and protect the rights of the most vulnerable children. Given the concerns raised by the Children’s Commissioner, and others, there must be at the very least some significant doubt as to whether the Department is right to assert that the changes are “minor in nature” and “do not constitute infringements on children’s rights”. The House may wish to press the Minister for further justification of the need for this instrument and of why the Children’s Commissioner was not consulted.
36.The Department told the Committee that it aims to publish updated guidance for local authorities “as early as possible” in the week commencing 4 May. Given the extend of the amendments, some gaps in the EM in relation to the changes to fostering services and the vulnerability of the children who will be affected, we regret that the guidance was not published when the instrument was laid before Parliament. Not only would this have assisted Parliament’s scrutiny of a complex instrument, but publishing the guidance in a more timely manner would have been helpful to those involved in children’s social care: the instrument came into effect the day after being laid in breach of the 21-day convention, thus not allowing those who are delivering children’s care services time to familiarise themselves with the changes.
37.The instrument puts an obligation on the Secretary of State to keep the regulations under continuous review. According to DfE, this will be done by policy officials who will “keep in touch” with the sector. While the changes are time-limited until 25 September 2020, the EM states that, should the current emergency last longer, a statutory instrument will be made to revoke the expiry provision. Should these circumstances materialise, it will be essential that any further statutory instrument brought forward to extend the measures also includes an expiry provision.
38.The EM also states that apart from monitoring the changes, the Department will be considering their longer-term impact and what future action may be required once the changes are no longer in force. We asked DfE whether any assessment of the impact would be published. The Department explained that it “intends, as required, to monitor the use of provisions within this Statutory Instrument. The form of this monitoring is to be determined. In doing so it will want to take account of any longer-term lessons for the operation of the children’s social care system.”
39.Given the concerns that have been raised about the changes and their potential impact on vulnerable children, the Committee calls on the Department to be open and transparent in its assessment of any longer-term impact and lessons that may be learned, and to involve the Children’s Commissioner’s and other relevant organisations in this process. The House may wish to press the Minister for an assurance that this will happen.
40.This instrument makes extensive changes to a very sensitive policy area. While the changes are temporary, we note that serious concerns have been raised about their potential impact on some of the most vulnerable children. These are issues that the House may wish to explore. The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1 See Memorandum explaining purpose and effect of the Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020.
2 No account is taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
3 Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2015 (SI 2015/228).
4 See Children’s Commissioner for England, ‘Statement on changes to regulations affecting children’s social care’ (30 April 2020): https://www.childrenscommissioner.gov.uk/2020/04/30/statement-on-changes-to-regulations-affecting-childrens-social-care/ [accessed 30 April 2020].
5 SLSC Publications page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/.