Lords greet bill but seek more money and independence for commissioner

Despite the Children Bill’s warm welcome in the House of Lords last
week, early signs suggest that it will look markedly different by
the time it reaches the House of Commons later this year.

During a six-and-a-half hour second reading, more than 30 peers
congratulated the government on its work before promptly moving on
to highlight what they considered to be the bill’s flaws and
weaknesses.

There were many concerns raised, but the clauses most vociferously
challenged were those relating to the powers, remit and
independence of the children’s commissioner and the workings,
legalities and practicalities of information-sharing
databases.

The majority of those peers who spoke expressed their intention to
ensure the English commissioner is entitled to initiate his or her
own investigations and to report directly to parliament.

But Lord Laming, who chaired the Victoria Climbi’ Inquiry which
preceded the children’s green paper and Children Bill, warned
against changes to the commissioner’s proposed functions and
powers, given the much larger number of children and young people
in England compared with elsewhere in the UK.

“The commissioner must avoid being drawn back into concentrating on
matters of child protection. That would undermine the unique and
distinctive role set out in this bill,” Lord Laming told the House.

“The commissioner post will be worthwhile only if it brings a new
dimension to the well-being of millions of children and young
people. It may be that, from time to time, the commissioner will be
able to investigate some alleged failure of services. But the
government are wise to exercise discretion in such matters.”

Comparisons with other UK commissioners were also made in relation
to their budgets. Insisting that English children had a right to
“the same level of voice as those anywhere else in the UK, and the
resources should follow them equally”, the Liberal Democrat peer
Baroness Walmsley said she was “horrified” to discover that the
anticipated spending per child for the English commissioner was
just 24 pence. This compares with a budget per child of £3.80
for the Northern Ireland commissioner, £2.11 for the Welsh
commissioner, and 98 pence for the Scottish commissioner.

That the commissioner “may” have regard to the UN Convention on the
Rights of the Child under the bill’s proposals, rather than “must”
have regard, is also the cause of some concern. “A commissioner who
only ‘may’ have regard to the UN Convention on the Rights of the
Child will not be able to safeguard children’s rights adequately,”
Baroness Walmsley argued.

“We do not want the commissioner simply to be a government
listening post for the views of children. We need him or her to
head a powerful independent institution that must be listened to,
with the right to publish reports without having to lay them before
the secretary of state first, and to whose recommendations the
government and others must respond.”

However, Baroness Ashton, the Sure Start minister who was charged
with moving the bill for its second reading, insisted that the UN
Convention would “form the backdrop of the commissioner’s work if
he thinks it appropriate”, but that his or her work should
ultimately be driven by the views of children rather than the
rights agenda.

The principal complaint around the clause on information-sharing
and the development of databases is that there is too little detail
in the bill, leaving too many important decisions to be made in
regulation and guidance.

Speaking to Community Care after the second reading,
shadow minister for health Earl Howe insists it is “wrong to allow
regulation to carry that kind of policy burden” and calls for the
detail to be included in primary legislation to enable proper
parliamentary scrutiny and ensure the government is not given
“carte blanche”.

The issue has also been raised by the Delegated Powers and
Regulated Reform Committee. Baroness Ashton said she was “mindful”
of the comments and promised to consider “what further detail we
might practically include on the face of the bill”.

Specific gaps the Lords would like to see filled include who will
record what information when, who will have access to that
information, and who will be responsible for acting on it and at
what time.

Several peers also raised concerns about the potential impact of
flagging up unfounded concerns, both in terms of wasted resources
and unnecessary trauma for the parents, carers and children
involved.

“With so many more people being required to record their findings
about the welfare of a child, I am seriously worried about the
quality, accuracy and relevance of the entries,” explained
cross-bench peer The Countess of Mar.

Although the leader of Wigan Council and vice-president of the
Local Government Association Lord Smith of Leigh said the
development of information-sharing was “vital” and the difficulties
and risks around it must be overcome and managed, others were less
convinced. Evidently, significant doubts remain as to whether a
database system could lead to a “false sense of security” which
would actually entrench the failings of the Climbi’ case rather
than correct them.

“The government has not yet proved to me that a very expensive and
complex information technology system on which 11 million names
will possibly be stored is a proportionate response to the
problem,” Earl Howe explains.

Lack of detail is also a criticism directed at the clause dealing
with local safeguarding children boards, with several peers
expressing concerns about the boards’ functions, procedures, and
funding.

However, what detail does exist appears out of favour too. Lord
Laming and Lord Smith are both adamant that plans to allow the new
directors of children’s services to chair the boards are
inappropriate.

Speaking after the second reading, Lord Laming said he was even
more opposed to independent chairs. “The area of accountability
must be absolutely clear and precise. To have someone with no
accountability chairing the board is a nonsense.”

He would prefer to see local authority chief executives chair the
boards, and will consider tabling amendments once he knows whether
the government has come forward with any changes.

Within 48 hours of the second reading in the Lords, the first nine
amendments had already been tabled. With the bill not scheduled to
be debated at committee stage before the beginning of May, there is
plenty of time for many, many more to follow suit. Baroness Ashton
would be wise to prepare herself for some long days’ debating
ahead. 

Other amendment contenders

More focus on very vulnerable children:
Peers are worried that there is not enough attention paid to the
needs of very vulnerable groups, including young offenders, refugee
children, and asylum-seeking children. Among other things, they are
likely to call for the new duties and safeguards to be extended to
all these groups in all settings.

Baroness Ashton said the government had concerns about extending
the duty to asylum and immigration services because doing so might
cut across existing procedures and had to be balanced against
effective immigration control.

Guaranteed role for the voluntary sector:
Peers believe the voluntary sector’s role is not adequately built
into the bill as it stands and will call for voluntary
organisations to be named explicitly as relevant partners for
children’s services authorities.

Baroness Ashton said the voluntary and community sectors were “key
players” in ensuring partnerships worked.

Repeal of the defence of reasonable
chastisement:
A cross-party alliance of peers intends to introduce a new clause
to repeal the legal defence of reasonable chastisement. However,
Lord Laming warned that this could result in the creation of an
offence of smacking, and lead to otherwise loving parents being
criminalised rather than supported.

Baroness Ashton said the government would consider any amendments
very carefully but would not support one that constituted a ban on
smacking.