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Standing Committee D
The Committee consisted of the following Members:
Chairmen:
†Mr. Joe Benton, Mr. David Amess
Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
†Brooke, Annette (Mid-Dorset and North Poole) (LD)
†Cawsey, Mr. Ian (Brigg and Goole) (Lab)
†Coffey, Ann (Stockport) (Lab)
†Eagle, Maria (Parliamentary Under-Secretary of State for Education and Skills)
†Gibb, Mr. Nick (Bognor Regis and Littlehampton) (Con)
†Goodman, Helen (Bishop Auckland) (Lab)
†Greening, Justine (Putney) (Con)
†Hesford, Stephen (Wirral, West) (Lab)
†Hughes, Beverley (Minister for Children and Families)
†Kirkbride, Miss Julie (Bromsgrove) (Con)
†Loughton, Tim (East Worthing and Shoreham) (Con)
†Miliband, Edward (Doncaster, North) (Lab)
†Riordan, Mrs. Linda (Halifax) (Lab)
†Russell, Christine (City of Chester) (Lab)
†Selous, Andrew (South-West Bedfordshire) (Con)
†Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Mark Egan, Sîan Jones, Committee Clerks
† attended the Committee
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Thursday 15 December 2005
(Morning)
[Mr. Joe Benton in the Chair]
Clause 35
Applications for registration: early years childminders
9 am
Amendment made: No. 141, in page 17, line 27, leave out ‘register’ and insert ‘be registered’.—[Maria Eagle.]
Miss Julie Kirkbride (Bromsgrove) (Con): I beg to move amendment No. 19, in page 17, line 32, after ‘give’, insert
‘, which relates directly to prescribed matters,’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 22, in clause 36, page 18, line 13, after ‘give’, insert
‘, which relates directly to prescribed matters,’.
No. 31, in clause 53, page 26, line 32, after ‘give’, insert
‘which relates directly to prescribed matters,’.
No. 34, in clause 54, page 27, line 13, after ‘give’, insert
‘which relates directly to prescribed matters,’.
No. 44, in clause 61, page 31, line 19, after ‘give’, insert
‘, which relates directly to prescribed matters’.
No. 47, in clause 62, page 32, line 8, after ‘give’, insert
‘which relates directly to prescribed matters’.
No. 276, in page 32, line 32, leave out ‘may’ and insert ‘must’.
No. 204, in clause 98, page 49, line 24, at end insert—
‘(ae) an order under section 35,’.
No. 207, in page 49, line 25, at end insert—
‘(ah) an order under section 53,’.
No. 209, in page 49, line 25, at end insert—
‘(aj) an order under section 61,’.
No. 210, in page 49, line 25, at end insert—
‘(ak) an order under section 62,’.
Miss Kirkbride: These are probing amendments to check whether the Government have got the right balance when it comes to the registration requirements for child minding. We clearly see the need for an inspector, a registration process and a central register. Conditions might well need to be set in certain circumstances to ensure that children are kept safely and properly while absent from their parents. However, we also want to see a light and transparent touch, which is why we would like the Government to reassure us that the right balance has been achieved.
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Amendments Nos. 19, 22, 31, 34, 44 and 47 relate to the applicant being required to give information by the chief inspector. They would specify that the information should directly relate to prescribed matters. In seeking to include the extra phrase in the clause, we are trying to ensure that those who make an application will be aware that there is some limit to the information that the inspector can request. They will know exactly what pond the inspector will be fishing in. The amendments would mean that there was a rational and transparent limitation to the way in which the inspector could go about his business.
The change would apply to clauses 35, 36, 53, 54, 61 and 62, which deal respectively with applications to the chief inspector to register as early years child minders, early years providers and later years child minders, for children under eight; with other later years providers making an application in respect of premises; with child minders making voluntary applications to register; and with child care providers making voluntary applications to register. We have tried to cover the clauses under which, quite rightly, the inspector plays a role in the registration. As I have said, we would like to be reassured that that role is limited to what is relevant as opposed to covering a wider perspective. If the Minister has examples of when the inspector might wish to take a wider perspective into account, I would be grateful to hear from her.
We are keen that there should not be a fishing expedition for no good reason. A reasonable test is that the information should relate to prescribed matters. That seems to get the right balance and would mean that the information was relevant to registering as a child minder, but was not overly bureaucratic because of the broadness of the test. In other words, there would be a boundary to the questions that could be asked.
Amendments Nos. 204, 207, 209 and 210 would ensure that the provisions in clauses 35, 53, 61 and 62 would be subject to a statutory instrument and that they would return to the House before the Secretary of State could make changes to the regulations on registration. We want the affirmative resolution procedure to apply to ensure that the House has some control over the way in which such processes might be changed in the future.
This is a probing amendment. We are not concerned about any obvious issues at the moment, given that what the Government propose is reasonable, largely speaking. However, as a brake on making future changes we hope that the process might be subject to the affirmative resolution procedure in the House. That would mean that the Secretary of State would not wish to go through the process unless it was felt that there was a need to change the existing regulations.
The amendment would mean changes to the way applications have to be made to the chief inspector to register as an early years child minder or a later years child minder. Changes to the voluntary registration of child minders and other child care providers would have to be determined by statutory instrument rather than the stroke of a pen on the Secretary of State’s
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desk. That is part of the light-touch approach we would like to see and dealing with the matter in this way would mean that such changes would be less likely to happen. On the whole, the way in which the Government have set out the case is perfectly reasonable, so we would like to know why they want the power to change it in the future. If they want that power, why should it not be subject to the affirmative resolution procedure in a statutory instrument Committee? On that basis, I am interested to hear the Government’s view of the amendments.
Annette Brooke (Mid-Dorset and North Poole) (LD): I support amendment No. 276. I do not feel inclined to go into a long debate about “may” and “must”, and I am sure that no one else would want me to. I will not because I have done it so many times in relation to local plans and goodness knows what. The amendment refers to clause 62, which is quite a way on in the Bill. Subsection (6) states:
“The prescribed requirements for registration may included requirements relating to—
(b) the premises on which the childcare is being (or is to be) provided”,
and so on. It is vital that that provision should say “must” rather than “may”. I leave that for the Minister to contemplate. If we are seriously talking about a system of registration and regulation to improve quality, we should not be rather casual—that is implied by the word “may”—about the sort of information that has to be lodged in the register.
The Parliamentary Under-Secretary of State for Education and Skills (Maria Eagle): I hope that I can satisfy the hon. Members for Bromsgrove (Miss Kirkbride) and for Mid-Dorset and North Poole (Annette Brooke) on the amendments. The hon. Member for Bromsgrove said that they were probing amendments, so I hope that I can convince hon. Members that they are not necessary. I shall do my best.
The first group of amendments—Nos. 19, 22, 31, 34, 44, and 47—would require the chief inspector to restrict the information that he seeks to that which relates directly to prescribed matters. They would mean that the chief inspector could reasonably require the applicant to give only information that relates directly to matters that are prescribed.
The hon. Lady will have noticed that information requests are already limited to those that are reasonable. “Reasonable” is a well-known concept in the law, even if there is occasionally debate about what on earth it means. It sets a boundary beyond which the chief inspector cannot go. The hon. Lady perhaps feared that the clause would allow a fishing expedition. My first point to her is that the word “reasonably” already restricts any sudden desire by the chief inspector to go on fishing expeditions for unnecessary and unreasonable information.
Miss Kirkbride: I respect the Minister’s point. How would that then be enforced by the applicant? If the Bill were to say that a request for information was to
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be for only prescribed matters, the applicant could make a case direct to the inspector. If it is a test of reasonableness, will the applicant have to go to court?
Maria Eagle: The ultimate arbiter of the meaning of reasonable is of course the court. That is one reason why we sometimes debate what it means. I suppose that the ultimate authority would be a judicial review, which is one way to test reasonableness, but that is rather over the top unless the applicant is very rich and has money to burn. It is a well-known fact that public office holders in this country do not abuse their office by going too far. That is because statutory powers contain the word “reasonable”.
The clause does not limit, as the amendment would, the information that the chief inspector might seek, beyond reasonableness, to prescribed matters. In certain eventualities, if he is to carry out his duties sensibly, he will need enough flexibility to be able to ask for information in addition to what is prescribed. That will then enable him to decide whether a person is suitable to be registered, so he does not need to go on multiple fishing expeditions and intrude into people’s lives. Were we to accept the amendment, in some instances the chief inspector might not have enough power to obtain that further information. That would not be helpful to the industry or to the person who has applied to be registered. I hope that the hon. Lady will accept that, as the chief inspector’s powers are bound by reasonableness, which is the safeguard sought by her amendments, that will normally be sufficient.
Amendments Nos. 204, 207, 209 and 210 require the affirmative resolution procedure for regulations on the requirements that all childminders must meet for registration and group care providers must meet to be registered on the voluntary register. The hon. Lady makes an important point. The Committee must take seriously, as the Government do, the need to ensure appropriate parliamentary scrutiny of delegated powers. The Bill contains a number of delegated powers.
There are key orders in the Bill that will be subject to the affirmative resolution procedure, but these powers are the kind of regulations that are normally, and have been for some time in parliamentary custom and practice, subject to the negative resolution procedure. Therefore, we are not stepping out of line. Even though the regulations are being made under the negative procedure, they are laid on the Table of the House. Anybody with a concern about them can pray against them and ensure that there is a debate and that they are scrutinised more actively. Therefore, it is not necessary to have the affirmative procedure for every set of regulations to ensure proper parliamentary scrutiny.
The House recognises these order-making powers as suitable for the negative procedure, so we are not stepping out of line or doing anything unusual. The Delegated Powers and Regulatory Reform Committee will consider whether there are any concerns about or dangers in the powers proposed in the Bill for the negative procedure. The only other thing to say to the hon. Lady is that if there were an affirmative procedure for such regulations, we would all be doing a lot more
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hour-and-a-half debates in Standing Committees, and we would probably need to open a few more Rooms and have a few more Chairmen available to enable us to do all the work. I hope that I have reassured her.
9.15 am
Under amendment No. 276, the requirements for the registration of group care providers, such as out-of-school clubs, would cover all matters listed in clause 62(6)(a) to (e). The hon. Member for Mid-Dorset and North Poole referred specifically to that clause. It covers applications for group care providers who are not required to register but who choose to register on the Ofsted child care register. Clubs for the over-eights would be the most obvious example.
Clause 62 states that registration requirements may relate to the applicant, the premises, the arrangements for children on the premises, the person caring for the children and other persons on those premises. It clearly indicates what we propose to deal with in the registration requirements.
The hon. Lady wants “may” to be “must”. She deliberately decided not to have a proper philosophical discussion about the difference between “may” and “must”, which was a bit disappointing because I should have liked to get to the bottom of why she feels so strongly that “may” should be “must”. There is no doubt that the inspector will consider the information to which I have referred. “Must” is unnecessary; “may” is sufficient to give him the power to ensure that he considers the right information.
The hon. Lady should recall that providers will be subject to the requirements set in regulation. She will have seen the paper that my right hon. Friend the Minister for Children and Families provided for the Committee about the proposed regulations, as well as a paper outlining the proposals for the Ofsted child care registers. We intend to emphasise the importance that we place on those particular matters. She should have a sense of how we envisage the regulations developing.
We will also consult on the regulations underpinning the Ofsted child care register prior to implementing them. Having “may” means that the proposed consultation will be real. If we were to prescribe in primary legislation precisely what provisions should be included, and then consult on what they should be, we would prejudge the consultation. Having “may” in the primary legislation will enable us to take into account in the regulations any comments made in the consultation that the industry and others who are involved want to bring forward.
Annette Brooke: Is the Minister honestly suggesting that those requests should not be made? Surely, we need that information on the register. Nothing is on it that should not be provided. We need to know where the premises are and who runs the extended club, or whatever the particular provision is. “Must” does not
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prohibit additional points being made, and it is difficult to foresee a situation in which any of that information should not be made available.
Maria Eagle: The hon. Lady is right that the inspector will want such information to be available when he decides whether to register a provider. However, there will be consultation with all those who have an interest in what ought to be included in the regulations underpinning the register. If, before the consultation, we were to prescribe what must be required, we would be prejudging the consultation’s outcome. There is no enormous difference in principle, but because we are going to consult, the flexibility of the current wording is helpful. She may disagree with that violently, or strongly enough to want to vote on her amendment, but that is our position. She appears unconvinced. Perhaps I have unconvinced her again, as I did on an earlier amendment, but that is as much as I can say. We may have to agree to disagree.
I also hope that the hon. Member for Bromsgrove has had sufficient reassurance to withdraw the amendment.
Miss Kirkbride: I am pleased to tell the Minister that she has largely persuaded me of her arguments, not least because the idea of spending more time in Standing Committee is quite a killer. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35, as amended, ordered to stand part of the Bill.
Clause 36
Applications for registration: other early years providers
Amendment made: No. 142, in page 18, line 7, leave out ‘register’ and insert ‘be registered’.—[Beverley Hughes.]
Clause 36, as amended, ordered to stand part of the Bill.
Clause 37 ordered to stand part of the Bill.
Clause 38
Conditions on registration
Miss Kirkbride: I beg to move amendment No. 24, in page 19, line 8, after ‘he’, insert ‘reasonably’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 25, in page 19, line 9, at end insert
‘, provided such conditions relate to prescribed matters.’.
No. 26, in page 19, line 14, at end insert
‘as he reasonably thinks fit.’.
No. 37, in clause 57, page 28, line 31, after ‘he’, insert ‘reasonably’.
No. 38, in clause 57, page 28, line 32, at end insert
‘, provided such conditions relate to prescribed matters.’.
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No. 39, in clause 57, page 28, line 37, at end insert
‘as he reasonably thinks fit.’.
No. 50, in clause 65, page 33, line 39, after ‘he’, insert ‘reasonably’.
No. 51, in clause 65, page 33, line 40, at end insert
‘, provided such conditions relate to prescribed matters.’.
No. 52, in clause 65, page 34, line 2, at end insert
‘, as he reasonably thinks fit.’.
No. 208, in clause 98, page 49, line 25, at end insert—
‘(ai) an order under section 58,’.
No. 211, in clause 98, page 49, line 25, at end insert—
‘(al) an order under section 66,’.
Miss Kirkbride: My arguments are similar to those used on the earlier group of amendments, but there is an interesting dimension. In the discussion on clause 35, the Minister persuaded us that the key test is one of reasonableness, and some of the amendments would introduce such a test. They would go further, however, and, as in the previous ones, require that the information that the chief inspector requests relates to prescribed matters. Given that debate, I am interested in the Minister’s arguments as to why the amendments that would introduce a reasonableness test should not be made.
Clause 38 allows the chief inspector to
“impose such conditions as he thinks fit”
at any time, and to vary or remove conditions at any time, on compulsorily registered early years providers. Such conditions should be reasonable and related to prescribed matters. Clause 57 introduces the same power to
“impose such conditions as he thinks fit”,
but on compulsorily registered later years providers, and clause 65 does the same thing for voluntarily registered providers.
The clauses are similar to those that we just debated, but they impose conditions on providers who are on the register. There should be a test of reasonableness, for all the reasons that the Minister set out. It would be unreasonable not to be reasonable and therefore the test should be included, even if she will not go as far as our other amendments on prescribed matters.
I could make similar arguments about the “prescribed matters” amendments. They are about ensuring fairness, transparency and a light touch, and preventing the chief inspector from going on fishing expeditions. Obviously, child care providers do an important job, and parents wish to be reassured about conditions. Nevertheless, there has to be a test of reasonableness for those providing that facility.
If the Minister wishes to resist the amendment, will she give an example to show why we should not limit the test of reasonableness to prescribed matters? I am interested to know why clause 28 is more open-ended. It sets out conditions that might relate to the cost of providing facilities, the range of equipment and all sorts of other things. It could involve a considerable expense for those already registered who are creating an environment for children. There should be a test of reasonableness for what is expected of them.
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I am less enthusiastic about amendments Nos. 208 and 211, which would also require the affirmative resolution procedure for the provisions. I heard what the Minister said and I dare say that she could persuade me again. I am interested to hear her observations on why the provisions should not be subject to that procedure. If she wishes to stand firm against the amendment, that is all the more reason why the Committee should be able to consider such matters further if the Secretary of State wishes to make changes.
Maria Eagle: I hope again to convince the hon. Lady that her amendments are not required. The group as a whole concerns the conditions that can be attached to registration and the procedure for making regulations governing the activities of providers registered on the general child care register. Amendments Nos. 24, 26, 37, 39, 50 and 52 propose that the word “reasonable” be inserted in the provisions, allowing the chief inspector to impose conditions on registration.
Amendment Nos. 25, 38 and 51 would limit the conditions that a chief inspector may attach to registration to conditions relating to prescribed matters. He currently has powers to impose conditions on the registration of providers. Those are important because they give him the flexibility to ensure that the requirements that providers have to meet are appropriate to their circumstances.
The amendments would limit the conditions that the chief inspector may attach to the registrations to conditions that relate to prescribed matters. We have had a bit of a canter around that, but it is important that the chief inspector continues to have the flexibility to impose the conditions on registration that he thinks fit—rather than to have that flexibility limited to prescribed matters—to ensure that children are appropriately safeguarded in all situations. The clause will allow Ofsted to take into account individual circumstances that might require control over and above the general registration and regulatory requirements.
Perhaps an example will help. The chief inspector might want to impose conditions of registration that take into account the facilities available. He might decide that a provider may not care for children under the age of two because there are no nappy-changing facilities, which are necessary to meet hygiene conditions and requirements, and to ensure the privacy of children.
In addition, conditions are used to limit the number of children who can be cared for, or to say that the provider cannot care for children overnight. Those conditions, made by Ofsted, are printed on the certificate of registration that providers have to display so that parents can see the conditions and ensure that they are met. It is neither helpful nor necessary to restrict the conditions that can be placed on registration to prescribed matters because there will be circumstances in which the inspector is unable to impose the limits he thinks necessary to provide a safeguard. We cannot possibly prescribe all the instances in the Bill or in regulations, and the inspector needs to be able to exercise his professional judgment.
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Conditions are placed on registration for entirely sensible reasons: to support the safeguarding of children and the improvement of their outcomes—that is what the Bill is about—by making provision comply with rules appropriate to the situation.
9.30 am
In respect of that wonderful word “reasonably”, amendments Nos. 24, 26, 37, 39, 50 and 52 make the sensible point that, if reasonableness is so important, why is it not in the Bill? It is a good argument, except that—
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