The rule of law is no rule at all if it changes on demand ~ Kathy Evans, chief executive, Children England [First published in CYP Now on 30th August]
The Children and Social Work Bill is becoming the focal point for important sector debates about whether statutory duties are an impediment to innovation in children’s services. So it feels timely to examine the nature of statutory duties and the Government’s approach to them.
In English statute law (ie Acts of Parliament) the creation of a duty on a public body is the mechanism by which people are assured a ‘right’ to certain standards of treatment, or an ‘entitlement’ to certain services. Even our human rights and freedoms under the Human Rights Act 1998 are made enforceable by a statutory duty on public bodies to act in accordance with them. Every essential legal right for children (like their right to an education, to be protected from harm, or to have their wishes and feelings taken into account in assessments) is expressed in statute law not as a right, but as a duty on those who must ensure it. Every day in courts up and down the country lawyers acting for children and families are seeking to uphold their rights, push for better treatment, or get justice for failures, by challenging whether statutory duties were upheld in their case.
Because statutory duties are such fundamental and powerful ‘laws of the land’ in English jurisprudence, parliament has traditionally been wary of creating them on a whim, without weighing up and thoroughly debating the diversity of views, evidence of need, and whether they could be counterproductive. Sometimes the reason for creating or amending a duty has been the result of case law and High Court judgments that mean statute must be updated to apply everywhere. Sometimes duties have been created as a result of campaigning or embedding tried and tested practice innovations. Sometimes they have been the result of learning from failure, like the Victoria Climbie Inquiry which led to the Children Act 2004. In the case of the Children Act 1989, its careful design of interlocking duties was the result of many years of dedicated cross-sector work to streamline a previously chaotic and incoherent patchwork of children’s legislation. Both of those pivotal Acts will be opened up to selective local duty-dropping by clauses 29-33 of the current Bill, on the grounds that it might enable greater ‘efficiency’ in children’s services.
Most governments (of all parties) have been wary of creating new statute that isn’t necessary, or that is overly restrictive of local freedoms to determine their best practical arrangements. All governments know that meeting a new statutory duty usually incurs a new cost to the taxpayer. Meeting our duties towards children does cost a lot of money and we shouldn’t flinch from that fact – supporting children in need and at risk is our moral duty as a society, not just our legal duty as a sector. If any part of society must ‘feel the pinch’ of austerity in order to rebalance the economy, surely it should not be the nation’s most vulnerable children. But after the recent DfE report on cuts to local children’s services budgets, can anyone really doubt that it is too little money, not too much law, that poses the greatest problem for children’s services today?
The DfE recently stated to the Education Select Committee that it was refusing to create a new statutory duty on schools to tackle sexism because they do not believe in imposing new duties on schools for anything other than safeguarding. In the Queen’s Speech, however, the Government announced it would put the National Citizens Service on statute and create a new duty on all schools to promote it. Not only is this the first time a specific government practice initiative will be put on statute (not even Sure Start or Troubled Families appear in statute!), but Government seems quite happy to use their strongest legislative power to insist that all schools promote one particular out of school activity.
The Children and Social Work Bill will create a new set of statutory principles for corporate parenting – something that is welcomed across the sector. They describe in law how every child in care – without exception – should expect to be treated. At Committee Stage, however, Lord Nash said that even those legal principles could become optional for a council who applies for an exemption. It appears that, to twist a common cliché, ‘one child’s right is another man’s burdensome duty’.
Are there ever grounds for rethinking or scrapping duties? Of course there are! That’s exactly how we got the statutory duties we have today, and it’s our collective duty to keep questioning how the law could be improved, and putting those ideas to our democratic law-makers. Secondary legislation (regulations) can already be changed far more quickly than primary legislation, and where regulations really are getting in the way of better practice they can be rewritten or scrapped. But when we make primary legal duties variable from one locality to the next the very idea of ‘the law of the land’ is turned into legal Swiss cheese, full of holes. And that weakens the rule of law for everyone.