On 8 November 2016, the House of Lords voted to remove the exemption clauses from the Children and Social Work Bill.
On 7 December 2016, government amendments to the Bill were published. These include the exemption clauses, with some new provisions and protections.
The House of Commons Public Bill Committee scrutinising the Bill voted 10-5 (along party political lines) to reinstate the exemption clauses, on 10 January 2017.
The Public Bill Committee had issued a call for evidence on 6 December, and received 47 submissions about the exemption clauses. Only one of these 47 supported the exemption clauses. Shadow Children’s Minister, Emma Lewell-Buck MP, was the only MP on the Committee to refer to any of the evidence submitted to the Committee.
Below is a brief summary of each of the clauses now returned to the Children and Social Work Bill.
We indicate what is new since the House of Lords voted to remove the exemption clauses from the Bill.
Clause 32 (Power to test different ways of working)
The Secretary of State (currently Justine Greening MP) can make a legal order that exempts (excuses) one or more local councils from a legal duty in relation to children’s social care. Legal requirements can also be modified (altered). This must be at the request of the local authority. There is no limit to how many duties may be removed or changed – though see the list of primary legislation that cannot be exempted below (this is new).
A new purpose of exemptions or modifications has been introduced, which is “to test different ways of working under children’s social care legislation with a view to-
(a) promoting the physical and mental health and well-being of children, young people or their families;
(b) encouraging children or young people to express their views, wishes and feelings;
(c) taking into account the views, wishes and feelings of children and young people;
(d) helping children, young people and their families gain access to, or make the best use of services provided by the local authority or its relevant partners (within the meaning given by section 10(4) of the Children Act 1989);
(e) promoting high aspirations for children and young people;
(f) promoting stability in the home lives , relationships, education or work of children or young people or;
(g) preparing children or young people for adulthood and independent living.”
[The purpose of exemptions in the original Bill was “with a view to achieving better outcomes under children’s social care legislation or to achieving outcomes more efficiently”].
This revised clause prohibits exemptions being made to the following areas of law – sections 17, 20, 22 and 47 of the Children Act 1989 and sections 10 and 11 of the Children Act 2004.
A subsection in this part of the Bill prevents exemption orders being used to remove the 2014 prohibition on local authorities contracting out its functions to profit-making organisations (the ban on profit-making in children’s social care is complex and not universal). Ministers had already tabled this amendment before Peers voted to remove the exemption clauses.
Clause 33 (Duration)
This concerns the duration of exemptions, which is three years plus one additional period of three years. This has not changed from the original Bill.
Clause 34 (Parliamentary procedure)
As with the original Bill, subsection (4) states that the normal democratic rules connected with a legal order which affects a particular group of people will not apply. Ordinarily, people directly and specially affected by a legal order have the right to give their views directly to the House of Lords. A special committee may even be set up to consider the issues. This has been ruled out. Instead, any changes to Acts of Parliament will follow what is called the ‘affirmative resolution procedure’.
The affirmative resolution procedure involves a Government Minister tabling a motion that the order be passed. Both the House of Commons and the House of Lords have to approve the order, before it can be passed. Alternatively, the order can be approved retrospectively (usually within 28 or 40 days of it coming into force). Changes cannot be made to the order. It is very rare for MPs and Peers to reject an order made through the affirmative resolution procedure. The House of Commons Information Office reports this last happened in 1969!
The ‘negative resolution procedure’ will apply when duties in regulations are to be removed or changed and the original regulations were passed themselves by this procedure. This is a change to the original Bill, though Ministers had made this concession before Peers voted to remove the exemption clauses from the Bill.
The negative resolution procedure allows MPs or Peers to ‘pray against’ the order. They have 40 days to do this. However, if Parliament is not in session the clock continues to tick. The House of Commons Information Office reports that MPs last annulled an order in 1979, and Peers last annulled an order in 2000.
A further change to the original Bill is that the Secretary of State will be required to lay before Parliament a report explaining how the purpose of the exemption (see above) is expected to be achieved; and confirming that the exemption or modification order “are not expected to have a detrimental effect of the welfare of any child and explaining any measures that have been put in place to ensure that this is the case”. This concession had already been made by Ministers before Peers voted to remove the clauses from the Bill.
Clause 35 (Consultation by local authority)
Before a local council can ask the Government to make a legal order removing or altering its social care duties, it must consult whichever local agencies it considers appropriate.
There is no requirement to publish the results of this consultation.
There is no requirement to consult children, young people or families. However, there is a new provision requiring the local authority to “consider consulting any children or young people who might be affected”.
Clause 36 (Consultation by Secretary of State)
Before the Secretary of State makes a legal order, she must establish an expert panel to give advice about-
“(a) the capability of the authority to achieve the purpose [of the exemption]
(b) the likely impact of the regulations on children and young people, and
(c) the adequacy of any measures that will be in place to monitor the impact of the regulations on children and young people.”
The panel will consist of the Children’s Commissioner for England*, Ofsted’s Chief Inspector and “one or more other persons appointed by the Secretary of State to consider the application”. There is a requirement on the Secretary of State to publish the panel’s written advice.
*The Children’s Commissioner for England is required by law to promote and protect children’s rights.
There was already a duty in the original Bill for the Secretary of State to consult the Children’s Commissioner and Ofsted’s Chief Inspector “and any other person that the Secretary of State considers appropriate”. The requirement to publish their written advice is new.
Ministers had already tabled amendments setting up the expert panel prior to the Lords voting to remove the exemption clauses.
Clause 37 (Guidance)
This is a brand new provision that requires the Secretary of State to consult “such persons as the Secretary of State considers appropriate” on, and then issue, statutory guidance to local authorities on using these new powers.
Clause 38 (Annual report)
This is a brand new clause that requires the Secretary of State to publish an annual report on the use of exemption orders.
Clause 39 (Interpretation)
The Acts of Parliament whose duties can be removed or changed are:
- Children and Young Persons Act 1933
- Chronically Sick and Disabled Persons Act 1970
- Mental Health Act 1983
- Children Act 1989 except sections 17, 20, 22 and 47
- Housing Act 1996
- Adoption (Intercountry Aspects) Act 1999
- Carers and Disabled Children Act 2000
- Adoption and Children Act 2002
- Children Act 2004 except sections 10 and 11
- Mental Capacity Act 2005
- Children and Young Persons Act 2008
- Legal Aid, Sentencing and Punishment of Offenders Act 2012
- Care Act 2014
All of the secondary legislation issued in respect of the above Acts of Parliament will, additionally, be candidates for removal or change.