by Allan Norman
Things are hotting up over the clauses in the Children and Social Work Bill which give local authorities the possibility of opting-out of legislation.
It seems the shorthand that is gaining traction is to call this a “power to innovate“. It is an interesting phrase. Those who support the legislative proposals paint it as benign, while those in the opposing camp (our chief social worker for children says there is a clear dichotomy) are able to be presented as opposing innovation.
However, a little legal analysis suggests that it cannot properly be described as a “power to innovate” at all. To understand why, we need to consider separately three possible types of innovative practice.
An existing power
Firstly, would it not be wonderful if local authorities were freed up to provide innovative packages of care and support that families wanted, and that could help to keep families functioning effectively? Yes, it would. The thing is, such legislation already exists. It has been on the statute books for 16 years. It was introduced in section 2 of the Local Government Act 2000 and, in England, it was extended by section 1 of the Localism Act.
Section 2 was intended to deal with a perceived problem at that time that local authorities, being created by statute, could only do the specific things that legislation permitted or required.
To free them of those shackles, section 2 reversed the previous assumption, and said that local authorities could do anything to promote well-being, apart from things that were expressly prohibited. This is a breathtakingly broad power to innovate, and it authorises innovation both on an individual case-by-case basis, and also in the form of complete innovative schemes to benefit whole classes of the population.
It is a provision I often point out to students as they are about to go out onto placement. I tell them, if you are coming up with an innovative idea, and being told that it can’t be done, quote this piece of legislation and say why not? Where is the prohibition?
For my part, I would welcome with open arms a power to innovate, if it means a power to help individuals, and to come up with new ways of working to help groups of the local population, by providing them with the support that they want and need. Only, that is already on the statute book, and not sufficiently used, so I dare to suggest that that isn’t what this new so-called “power to innovate” in the Children and Social Work Bill can be about.
Of course, I have been careful to point out that the existing breathtakingly broad power to innovate is a power to provide care and support that people want.
A second possibility
We must consider a second possibility, which is that what is really at issue is a power to innovate by “doing unto” people, rather than working with them. (Notwithstanding that according to Dave Hill, ADCS President, it’s already the case that “the most skilled know how to work with, rather than doing unto children and families“.)
Now, here is the point where we have to start really have to get to grips with that word “rights”. When you are providing welcome support that people willingly receive, you do not really have to engage with rights. But if you are going to “do unto” people things that they don’t want you to, then you do need to engage with rights.
And this is why many of those who are raising eyebrows about this so-called “power to innovate” are referencing rights – the concern is that what is really wanted is a power to interfere in people’s lives in unwelcome ways.
Would section 2 authorise that? And if not, would the new clauses authorise it? Well, I have made the point that section 2 authorises anything that is not expressly prohibited. And one thing that is expressly prohibited is to act in breach of human rights.
As the Scottish legislature discovered this summer, when the Supreme Court struck down Part 4 of its Children and Young People (Scotland) Act, compliance with human rights requires that there is no arbitrary or unnecessary interference in people’s private lives, and that any laws which purport to authorise such interference need to be sufficiently clear, predictable, and accessible.
What this means is that giving social workers broad discretionary powers to “do unto” people things that they do not want simply will not stack up in human rights terms. And that, I am afraid, is true both of the existing section 2, and of the new proposed powers to innovate.
The ‘efficiencies’ agenda?
There is, of course, a third possibility. That is, that what the profession feels it needs is neither a power to provide wanted care and support, nor power to provide unwanted interventions, but a power to stop doing things that we do at the moment.
That might make sense. It would fit with an agenda of “efficiencies” at a time of austerity; or with a more positive spin, “cutting unnecessary red tape”.
Call me a cynic, but my problem with this is, if this is what is really wanted, then it is being mis-sold as a “power to innovate” – a phrase which conjures up welcome powers to do new things should not turn out, on closer inspection, to be powers to stop doing those things that we do at the moment.
Of course, if we look at the actual clauses, they do refer to opting out of “requirements”, which does indeed rather uncomfortably suggest that they are being mis-sold as a “power to innovate”.
But this, too, begs the question about rights. If those so-called “requirements” are in truth a way of making sure that we honour our rights commitments, then we can only opt out of them by substituting in their place some other way of upholding our rights obligations.
Moreover, that other way of upholding our rights obligations must be sufficiently accessible, predictable, transparent etc in order to fit the bill. And frankly, the best way of doing that has to be through clear legislation, while doing it through legislative opt-outs must surely be one of the worst ways of doing it.
So there we have it. The power to innovate would be wonderful, were it not for the fact that we already have one, just begging to be noticed and used.
(Note: This article was updated on 4 October to include reference to section 1 of the Localism Act, with thanks to Steve Broach for highlighting it).