The complex task of advising children and families could soon become virtually impossible.

Clauses 29-32 of the Children and Social Work Bill 2016 are the very definition of a sledgehammer to crack a nut. Through these clauses, the secretary of state hopes to acquire the power to exempt local authorities from the requirements of children’s social care legislation.

The stated intention is to allow local authorities to ‘test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently’.

There is, however, little evidence that legislative requirements are posing a barrier to innovation by local authorities in the support provided to children and families – as opposed to swingeing cuts to their budgets which are undoubtedly having such an impact. Even if certain legislative provisions are in fact preventing innovation, this cannot justify a power to exempt local authorities from the entire statutory scheme governing children’s social care.

These clauses have generated real concern among a large number of individuals and organisations involved with children’s rights, who have come together under the ‘Together for Children’ banner to seek to have them removed from the bill. However, the clauses have not attracted the attention of the wider legal community in the way that they perhaps should, given they exemplify the ever increasing trend to concentrate power in the hands of the executive (see also the Great Reform Bill).

Clause 29(2) of the Children and Social Work Bill 2016 would create a power for the secretary of state to ‘exempt a local authority in England from a requirement imposed by children’s social care legislation’ or ‘modify the way in which a requirement imposed by children’s social care legislation applies’. This power would be exercised through making regulations, which would only be subject to positive debate in parliament if they sought to amend requirements of primary legislation. Consultation on the proposed exemption would only be required with various official bodies, not with children and families.

The scope of the new power to disapply or vary the law which the secretary of state seeks to obtain is vast. It would cover the full range of children’s social care primary legislation and all the secondary legislation made under these acts. For example, if the secretary of state considered that it would be ‘more efficient’ and equally effective to disapply the key statutory duty to meet the needs of disabled children found in section 2 of the Chronically Sick and Disabled Persons Act 1970 in a particular area, she would be free to do so.

The 1970 act, like the other acts within the scope of the clauses, was put in place for a reason. Any amendment to this statutory scheme should require careful consideration and debate by parliament rather than secondary legislation. The safeguard of parliamentary approval for the amending regulations would be more theoretical than real. Only a tiny fraction (0.01%) of statutory instruments are rejected by parliament – just 17 in the past 65 years. Ministers may say that the scope of the exemptions made under this new power will be much more limited in practice. However, if this is the intention then it should be reflected in the legislation.

The contrast between the statutory schemes for disabled children and disabled adults will be made even sharper if these clauses go through. Disabled adults now have the benefit of modern, coherent primary and secondary legislation governing care and support under the Care Act 2014, including national eligibility criteria. By contrast, disabled children and their families and those advising them already have to pick their way through a patchwork of legislation dating back decades to understand their entitlements. If these clauses go through, these entitlements will start to vary according to which side of a local authority boundary a child or family happen to live.

As the local variation increases, we will lose the legal transparency and certainty required by both the common law and the European Convention on Human Rights. This differential treatment between disabled children and disabled adults would also raise issues under article 14 ECHR.

If the clauses go through, the complex task of advising children and families as to their rights and entitlements will become virtually impossible. Every piece of advice will require a caveat – ‘your child has a right to an assessment as a child in need, except they don’t because they live in Durham/Doncaster/Dudley’. Even worse, the secretary of state could choose to vary rather than disapply certain requirements, leading to even greater confusion. It is hard to think of anything which could more significantly undermine a culture of respect for children’s rights than a provision which allows those rights to vary on the basis of local geography.

The clauses would be a bad idea at any time. At a time when local authorities are already struggling to provide the minimum required by the statutory scheme they are positively dangerous. How many ‘innovative’ proposals will be seen by children and families as simply cover for further cuts?

In a well-publicised lecture given in April 2016, Lord Judge stated that ‘parliamentary sovereignty is the antithesis of executive sovereignty’. In this lecture, Lord Judge criticised the sweeping powers to amend the law contained in the Childcare Act 2016. The secretary of state appears to have been unconcerned by this, given that these clauses work in a similar way. They offend against the spirit if not the letter of principle of parliamentary sovereignty as pithily stated by Lord Judge: ‘It is the exclusive responsibility of parliament to make, or amend or repeal, the laws which govern the country. It is the responsibility of the executive to govern the country in accordance with those laws’.  

Hopefully, on this occasion, parliament will resist the further aggrandisement of powers by the executive in the guise of promoting innovation. Tomorrow (18 October) the Lords have the opportunity to do this when the bill returns for report stage.

Steve Broach is a public law barrister at Monckton Chambers with a specialism in children and disability rights

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