COMMONS AMENDMENT

HL Deb 10 November 2004 vol 666 cc980-6

27 Clause 7, page 5, line 28, at end insert "and emotional wellbeing"

Baroness Andrews

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 27. In moving the amendment, I shall speak also to a large group of amendments, none of which I trust will prove controversial. I hope not to take up too much of the time of the House.

The amendments fall into three broad categories, the first of which covers amendments delivering on Lords commitments. Commons Amendments Nos. 30 and 47 add the British Transport Police to the list of bodies covered by the safeguarding duty. They make good on a commitment we made in response to an amendment tabled by the noble Baronesses, Lady Walmsley and Lady Thomas of Walliswood, during our deliberations in this House.

The second category comprises amendments to deal with issues which have been raised since the Bill left this House. Commons Amendments Nos. 27, 28 and 41 relate to an amendment moved by the noble Lord, Lord Northbourne. I am sorry that the noble Lord is not in his place because I think that he would take pleasure in this. His amendment added "emotional wellbeing" to the list of outcomes in Clause 7. A number of stakeholders commented to us over the summer that they agreed about its importance, but felt that it would be better placed alongside physical and mental health. We agreed with that. The amendments simply move the reference and make sure that it is included for Wales.

Commons Amendments Nos. 29 and 73 give the Government a power to specify that special health authorities should also be subject to the duty to make arrangements to discharge functions having regard to the need to safeguard and promote the welfare of children. The purpose of this power is to allow us to ensure that NHS Direct is covered by the safeguarding duty. NHS Direct has a surprising amount of contact with children and is represented on many area protection boards. A second amendment to Clause 54 provides that the regulations should be subject to negative resolution.

Commons Amendments Nos. 31 and 52 respond to concerns which were raised at the regional seminars on Local Safeguarding Children Boards that we held over the summer. Partners should have an ongoing responsibility to come together as an LSCB. We therefore tabled these amendments to ensure that the Bill sends out a strong message that all board partners, not just local authorities, will need to contribute to and participate in the work of LSCBs on an ongoing basis.

Commons Amendments Nos. 34 to 39, 49, 59 and 60 are all technical improvements to the inspection clauses highlighted by the process of preparing draft regulations and the work on the common inspection framework. Commons Amendments Nos. 34 and 35 set out clearly how programmes of joint area reviews at the Secretary of State's request will be instigated. Commons Amendment No. 36 makes explicit that a purpose of joint area reviews is to assess how children's services work together. Commons Amendments Nos. 37 to 39 clarify aspects of the possible coverage of regulations on the operation of joint area reviews.

Commons Amendment No. 40 extends the definition of children's services for the purposes of inspection to make sure that it covers the new functions on authorities created by the Bill. Commons Amendments Nos. 49, 59 and 60 extend the scope of inspection in Wales by adding planning functions of a children's services authority relating to education, and make consequential changes to Clause 43 relating to England, ensuring that the functions of a children's services authority in Wales are subject to inspection by the relevant inspectorates.

Commons Amendments Nos. 43, 48, 51, 53 and 74 reflect our solution to another of those interesting technical challenges that devolution throws up. They represent the outcome of a good deal of discussion between different parts of the UK Government and the Assembly over recent months. We have said in the past that a joined-up approach to children's services in Wales needs to encompass bodies exercising non-devolved functions.

There is therefore a need for the UK Government to play an appropriate role in approving the commencement of provisions, the making of regulations and the issuing of guidance under Part 3 of the Bill. But it is also true that the different context in Wales means that, when it comes to joint working on children's services, the Assembly is rightly best placed to lead in setting out the overall direction of changes. These amendments give effect to that.

8.15 p.m.

Amendment No. 64 would remove an anomaly, the now anachronistic requirement on certain authorities to appoint a social services committee. This requirement, which is set out in the Local Authority Social Services Act 1970, affects a handful of authorities—in fact, merely six: three in Wales and three in England—which do not have executive arrangements. So this will bring them into line.

Amendment No. 54 provides for the effective sharing of information between the Assembly and CAFCASS following the transfer of CAFCASS in Wales to the Assembly under Part 4 of the Bill. It will be important for both to have a facility which allows them to share information relating to individual cases. For example, there are likely to be cases which may involve children living on either side of the border who may have separate family proceedings officers, both of whose tasks would benefit from sharing information about the two cases. This is an entirely sensible development which emerges from the CAFCASS arrangement in Wales.

Amendment No. 55 is technical and is needed to reflect the effect of the Criminal Justice Act 2003 in terms of the maximum length of prison sentence that could be imposed for an offence of privately fostering when disqualified, should a registration scheme for private foster carers be introduced.

Amendments Nos. 42 and 50 reflect the fact that a number of NHS trusts in Wales operate across local authority boundaries, with more services being provided in some areas than in others. Trusts would not be under the same duty for all local authorities, therefore leaving some local authorities without co-operation from an NHS trust. Amendment No. 42 therefore places a trust under a duty to co-operate with all local authorities in whose areas they provide services. Amendment No. 50 sets out that NHS trusts will be members of each local safeguarding children board in whose area they provide services.

I could go into more detail but I hope that I have provided sufficient information to reassure noble Lords that the amendments are acceptable. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 27.—(Baroness Andrews.)

Earl Howe

My Lords, I should like to use the opportunity presented by Amendment No. 48 to say something on the subject of databases, which occupied us for a considerable period at earlier stages.

When the Bill left this House for another place I believe we all thought that over the course of the summer and during the Bills passage through the Commons the Government's intentions as regards the new databases would become a whole lot clearer. Despite the welcome changes made to Clauses 9 and 24 in the House of Lords, the noble Baroness, Lady Ashton, did not attempt to disguise the amount of further work that the department still had to do. So, whilst we were conscious of the unsatisfactory vagueness of the Bill's wording, we were at the same time hopeful that, given an extra three to four months, that vagueness would for practical purposes largely evaporate.

We could not have been more wrong about that. A consultation paper has been issued but it is obviously too soon for the Government to come forward with any conclusions from it. We can only now await the arrival of the implementing regulations in a few months' time. Those of course will be affirmative regulations and both Houses will have a chance to debate them. But this really is one of those situations where, in order to do justice to what I and many others view as very significant potential breaches of data protection principles, we needed draft regulations and draft guidance in front of us when debating the Bill itself.

We are still no further forward on the meaning of the phrase "cause for concern". The meaning of that term has to be laid out clearly in guidance so that everyone whose job it will be to put this legislation into practice will understand what the thresholds for raising flags of concern are supposed to be. That surely is a sine qua non if there is to be an effective system for professionals to share subjective judgments of the kind envisaged in Clauses 9 and 24. Anything else will result in confusion. Yet the Government themselves seem unclear what they have in mind.

Equally, we are no further forward on the question of which practitioners will be obliged to enter their own details onto the database in relation to a particular child and who will have access to such information. This is a terribly important issue. The problem arises with what one might term sensitive services. The attendance by a young person at a sexual health clinic, a pregnancy advisory service, a psychiatrist's practice or an obesity clinic is not information which should be passed automatically or routinely to that child's school head or even to a senior social worker. If such information is routinely shared around, with or without flags of concern, there will be only one consequence, which is that the child or young person will simply not seek the help that he or she needs.

That is why, in my view, we have to allow professionals a sensible degree of discretion in determining what information is put on to the database. In some situations, it may be neither wise nor safe to disclose sensitive details which are there for all to see. But again, there are mixed messages coming from the Government about whether such discretion will or will not be a feature of the system. The Bill appears to suggest that the rules will be black and white and that there will be no discretion to withhold. That was also the clear impression given by the Minister, Mrs Hodge, in another place. Yet the consultation document, which talks about discretion, directly contradicts that. Both cannot be right. My worry is that if the statute contains a blanket requirement for disclosure, as it does for certain groups of professionals and agencies, this will not, in all circumstances, be consistent with the safety and wellbeing of children.

It would be of some comfort if the Bill provided for an individual's consent to certain types of information-sharing or if it said that the best interests of the child should be the basis for professional judgment on whether or not to disclose. But it says neither of those things. I am at a loss to understand why the Government did not take the opportunity in another place to build in qualifying provisions of this sort.

The really worrying part is that even if the Government come up with proposals that most people are comfortable with—and that is an extraordinarily big "if"—the powers in the Bill are nevertheless capable of being used at some point in the future in a way that would significantly weaken the privacy protection afforded by the Data Protection Act.

Mentioning the Data Protection Act brings me to my last point, which is transparency. We are no further forward on the question of an appeals procedure. It is perfectly possible to imagine deliberately inaccurate information appearing on a database from someone prompted by vexatious motives. The consequences of that happening could be ruinous to an individual. There are still no safeguards, either in the Bill or in the form of ministerial assurances, to enable anyone to challenge the veracity or the relevance of such information. Certainly, the Data Protection Act does not provide such a safeguard, contrary to assurances given by the Minister in another place.

I remind the Government of the wide exceptions to subject access under the Data Protection Act that already exist through a whole range of statutory instruments. There is no certainty that people will be able to find out what information is being held on their records because there are a great many ready reasons, perfectly valid in law, for that information to be withheld from them.

It is too late now, but I really could have wished that the Government had gone at this at a slower pace, not in relation to the Bill as a whole but on this particular set of provisions about information-sharing. They could have piloted databases more widely; they could have waited until they were absolutely clear about what they wanted before bringing primary legislation to Parliament. As it is, through lack of clarity, they have sown the seeds of confusion and suspicion; and on such an important matter as this, that is not at all to their credit.

Baroness Sharp of Guildford

My Lords, I very much echo the words of the noble Earl, Lord Howe. We are broadly supportive of the need to improve information-sharing to ensure that children are better safeguarded. We would have liked a database, if we have it, to cover all children. However, we retain concerns about the type of information to be recorded, particularly the recording of "cause for concern" and the lack of professional discretion about when to record information, particularly in relation to sensitive services.

We are concerned that while the noble Baroness, Lady Ashton of Upholland, made a commitment to hold a public consultation about causes for concern on 5 July, the long-awaited consultation document was not finally produced until 27 October, five days after the final Commons Standing Committee sitting. There was very little debate on Clause 9 on Report in the Commons.

While we welcome the consultation and are pleased by the recognition of the concerns that we have raised since the proposals were announced in Every Child Matters and throughout the passage of the Bill, we are very concerned by the contradiction that has been created between the statute and the Government's stated intention in the consultation document. The views expressed there would appear to reinforce the view that the Bill is in need of amendment, yet we have now lost the opportunity to make amendments. If the Government take consultation seriously, it is hard to see why they are insisting on creating a new legal term while at the same time suggesting that it may be altered or replaced. That seems totally illogical.

Among the portfolio of amendments before us, we are pleased to see "emotional well-being" in its proper place. We echo the feelings of the noble Lord, Lord Northbourne. We are delighted to see it alongside "physical and mental health" and not, as it was originally, associated with social and economic well-being.

We welcome, too, and thank the Government for, the amendments which relate to the British Transport Police and NHS Direct. We are sorry that throughout the passage of the Bill, the Government have resisted our attempts to include the refugee agencies alongside others who have responsibilities for safeguarding and promoting welfare. Wearing my hat as education spokesperson, I regret also that schools are excluded from those responsibilities. At a time when so many schools are moving out of local education authority purview, it should be right that schools are included.

Will the Minister explain Amendment No. 39? It is a very obscure amendment. I read it and I re-read it, but I could not make any sense of it. It struck me as being a rather splendid piece of legalese. It states: Regulations under subsection (9) may make provision authorising or requiring the doing of anything by reference to the determination of a person of a description specified in the regulations". Does it mean that anyone can do anything that may be specified in the regulations? That is more or less what I read it as stating.

Otherwise, there is nothing in this group of amendments that we find contentious in any way. We thank the Government for bringing forward a number of the important amendments in it.

Baroness Andrews

My Lords, I am grateful for the welcome, albeit qualified, that noble Lords have given to the amendments. I confess that they reprise many of the more substantial debates that we had at earlier stages of the Bill, particularly on information sharing. I would not have expected noble Lords not to take the opportunity, even at this late stage, to raise matters about which they feel strongly in relation to the scope, the nature, the conditions and the terminology of information sharing in their opportunistic way.

Noble Lords have made the case with consistency throughout the passage of the Bill. That we engaged in the consultation process is testament to our intention to be as transparent as possible and to reflect the complexity of the issue. We welcome the comments that noble Lords have made on that today and will reflect on them as part of that process. I know that my noble friend Lord Filkin has written recently to noble Lords about some of the issues. However, they clearly remain of concern and we will welcome a wider debate during the course of the consultation and when the regulations come before this House. I am sure that this is not the last word in any sense on what will happen; it is a radical and complex development in the way in which we look after and protect children. We shall certainly pay close attention to what has been said this evening.

On Amendment No. 39, I happen to have a bit of background which I shall do my best to read as intelligently as possible. Amendment No. 39 gives explicit cover for Clause 16(9) regulations to allow inspectorates and commissions discretion over specified matters. For example, for its current inspections of local authority social care functions, CSCI has entry rights to any premises which it "reasonably believes" are, or are proposed to be, used in connection with such functions—so it exercises judgment as to the use of premises. The judgement impacts on others; owners of premises identified by CSCI must allow entry, or face possible sanctions if they refuse entry. This provision is acceptable because it is on the face of the relevant Act, the Health and Social Care (Community Health and Standards) Act 2003.

For CSCI to have the same entry rights for JARs as for its current inspections as we intend, we shall include provision in regulations under Clause 16(9). It would be unusual for regulations to allow discretion which impacts on a third party—in legal terms, that would amount to "sub-delegation of power"—without express provision on the face of the Bill to allow such discretion. Amendment No. 39 inserts that express provision.

If the noble Baroness would like me to send her that in writing, I shall happily do so—but I see that she is shaking her head. I take it that between us we have explored the limits and logic of that amendment. We are grateful to noble Lords and look forward to continuing dialogue on these aspects of the Bill in other ways and other places.

On Question, Motion agreed to.