by Carolyne Willow
Should education secretary Justine Greening be handed Henry VIII powers in children’s social care? This is the question facing 19 MPs on the committee scrutinising the Children and Social Work Bill tomorrow. Henry VIII passed a proclamation in 1539, which gave him the same power as parliament to make, repeal and amend legislation.
Peers knocked out the exemption clauses from the bill in November, declaring them to be unconstitutional, lacking in any evidence and a threat to children’s legal entitlements. Now they look likely to return, for the committee’s membership is weighted in the government’s favour and the children’s minister has tabled amendments to reinstate them.
Has the government listened and has the threat to children’s rights dissipated?
The core concept has not changed, which is to remove one or more statutory requirements from one or more local authorities to test whether legal protection can be repealed across the whole country. Area-based deregulation could still last for six years. The amendments continue to place a duty on the education secretary to consult Ofsted’s chief inspector, the children’s commissioner and any other person (though this will be through an expert panel whose written advice, if any is produced, must be published).
Orders excusing councils from statutory duties will still be made through a parliamentary procedure that gives its rubber-stamp 99.99% of the time.
A new statutory purpose for exemptions has been tabled – to test different ways of working to a set of principles based on the corporate parenting principles introduced by the bill.
The original bill said trials must be aimed at achieving better outcomes under social care legislation. This was pretty nonsensical, because if you want better results from legislation why dump its duties? But at least those two words – better outcomes – appeared.
Six sections of two acts of parliament have been exempted from the exemptions – sections 17, 20, 22 and 47 of the Children Act 1989 and sections 10 and 11 of the Children Act 2004. The Department for Education describes these as core legal duties, as if everything else is secondary. That, somehow, council duties to prepare care plans, to visit looked after children, to place siblings together whenever possible and to support care leavers are not fundamental. Relatively new entitlements for disabled children, for young carers and for young people in foster care to ‘stay put’ until the age of 21 remain in jeopardy. Why test the removal of duties which have only recently come into existence?
The next change is a requirement on the secretary of state to consult before publishing statutory guidance on the operation and evaluation of trials. Consulting after royal assent is a topsy-turvy way of making law. There were no green or white papers preceding this bill.
The Local Government Association objected to the power in the original bill, which allowed the imposition of exemptions on local authorities subject to government intervention. This has not reappeared. However, a DfE fact-sheet says councils who have “partnered with a ‘good’ or ‘outstanding’ local authority, with a clear support plan in place” will be able to apply for exemptions. There can be only one interpretation: a council that is struggling to meet its statutory obligations could be excused from meeting its statutory obligations.
The secretary of state will be required to publish an annual report, explaining how exemption orders are achieving different ways of working to the set of principles. Again, the focus is on working differently, not the impact on children and young people.
Other changes were tabled in previous government amendments, prior to the Lords defeat, so they are not new. What continues to make my stomach churn is the threat these clauses pose to children’s voice and visibility.
Take duties to give due consideration to the child’s wishes and feelings. These are now safe but Justine Greening will be able to remove the requirement to appoint experienced social workers to undertake independent scrutiny of looked after children’s care and protection. This is a crucial mechanism to ensure, among other things, that children are listened to and taken seriously.
Independent reviewing officers (IROs) are required to meet children in private. They must consider making a referral to Cafcass when a local authority is not fulfilling its statutory obligations. Cafcass is legally empowered to bring proceedings for breaches of the child’s human rights. Since many children in the care system do not have parents able to effectively monitor, challenge and protect their human rights, it’s not difficult to see why these provisions were put in place. IROs are on the exemption waiting-list.
Cafcass has a crucial role in protecting the rights of children, so I made a freedom of information request for any documents and emails showing its assessment of this part of the bill. The organisation told me it “has prepared no written views or assessments”. Yet its chief executive published his own view two weeks before the crucial Lords vote, stating exemptions “will help to strip back bureaucracy to a safe minimum level”.
Exemptions could severely fracture safeguarding duties, including: the duty to appoint independent advocates; the duty to have a complaints procedure; and the duty to appoint independent visitors. Since when did these become red tape?
That children and young people have not been consulted is a disgrace. The new clauses do not even require local authorities to consult children and young people prior to requesting the government absolve them of their duties; they must simply consider doing so.
One postholder who could have been expected to be agitated by all of this is the children’s commissioner, whose legal purpose is to promote and protect the rights of children. The duties of the office of children’s rights director transferred to the commissioner in 2014, giving her special obligations for the children and young people most affected by this bill.
In October, Edward Timpson told parliament the commissioner supports the exemption clauses. In the absence of any public statement by the children’s commissioner, I submitted an FOI request along the same lines as I had to Cafcass. The response shows there has been no impact assessment. The paper trail starts in July, with the commissioner asking colleagues for a discussion about “what it means in practice and how safeguards might be built in”, adding “I’m in favour of the clause in strategic terms”. A letter was sent to Lord Nash two months later, with detailed questions about the procedure for granting exemptions; then the day before the Lords vote there was an email exchange with the DfE where a quote supporting the government’s position was provided by the commissioner.
Innovation is the marching beat of this part of the Bill, but where’s the wow factor in taking away legal protection from vulnerable children and young people?
If legislation is not working as intended, it should be reviewed. Ask children and young people what they want and need. Conducting a constitutional experiment with the most vulnerable in our society can never be an acceptable way forward.
Carolyne Willow is Director of Article 39.