Official Report: Minutes of Evidence

The Chairperson (Mr Nesbitt): We welcome the Bill's sponsor, Steven Agnew MLA, to the table. We also welcome Ross Brown, the researcher for the Green Party. Steven has provided a response to issues raised in the clause-by-clause table, and we thank him for that written response. You have just heard from the officials, Steven, so the logical thing to do is to ask for your reaction.

Mr Steven Agnew (Northern Ireland Assembly): There is nothing surprising in what I have heard, because engagement with OFMDFM has been consistent and considerable. We held a number of joint meetings at which all parties were able to be there at the same time. I appreciate that diaries do not always allow for that but, as much as possible, we are trying to go along, step by step, together.

The Department has outlined its proposals. At this point, there is nothing with which I have major concerns. I have said from the outset of this process that I want to work collaboratively and have sought to do so. That is subject to seeing the draft of the amendments, and I think that that is true of all parties, including OFMDFM. We are in agreement with the aims of the Bill. We see areas for improvement in the drafting. Subject to seeing how the amendments look, we support the direction of travel that OFMDFM is proposing at this point.

The Chairperson (Mr Nesbitt): Clearly, OFMDFM wants a new clause 1, which is a sort of statement of intent. I know that Daniel Greenberg said that, if you want to know what a Bill's sponsor intends through his Bill, the best thing to do is to say, "Steven, what is the Bill is supposed to do?".

Mr Agnew: First and foremost, it is supposed to improve cooperation in delivering services to children. It is about ensuring that more resources go to the front line through more efficient working, that organisations delivering services to children are not having to run between Departments and that there is a central point through which to work.

The Chairperson (Mr Nesbitt): There is a suggestion that clause 1 would change to a general duty at departmental level. Are you content with that?

Mr Agnew: I actually intend and have organised to meet Daniel Greenberg. It is a new form of drafting to what I am used to. As stated in the last session, it is not common within UK law. My understanding has always been that the place for it is in the explanatory and financial memorandum and then the legislation is separate.

I have no problems with the intent. Obviously, Mr Greenberg is an expert in his field. I intend to meet him, but, at this point in time, I see no concern in that. It could be an opportunity. Concern has been raised in this Committee about the ability to enforce high-level outcomes because they are broad, and deliberately so. Perhaps, a better place for them to be, potentially, is in the general purpose clause. I am interested in exploring that possibility as a way forward to ensure that the six high-level outcomes are included in the legislation, which would perhaps get round any legal problems they might create.

The Chairperson (Mr Nesbitt): What is your current thinking on sanctions and the lack of them for those who do not comply?

Mr Agnew: I suppose the feedback is coming from both sides on this. Some are saying that we require more direct sanctions while others are saying that reporting is already too onerous. Sometimes, when your point of view is in the middle, that is the right place to be.

I still have not got a concrete example from anyone of what a sanction could look like, other than fines. I do not see how fining a Department for not delivering services to children will help children. I think that the ultimate sanction is always judicial review, which is not in anyone's interest. It is always the ultimate sanction. The Department should work cooperatively to avoid such a sanction.

Reporting is there to keep accountability. That is why I defend the need for reporting without it being necessarily over-bureaucratic. Reporting is there to ensure accountability and that we have oversight, both within the Assembly and for outside agencies, to ensure that cooperation is happening, is seen to be happening and indeed can be evidenced through the reporting. In that regard, this is how we ensure that cooperation has taken place, as I say, with the ultimate option of judicial review always being there. Beyond that, I do not see a workable form of sanction that would be helpful. Through all your consultation and mine, I have not seen a proposal that would improve the Bill in that regard.

The Chairperson (Mr Nesbitt): One organisation said that, rather than name the six current high-level outcomes, the form of words should be more flexible and say whatever high-level outcomes are effectively live and in play at the time. Are you content with that?

Mr Agnew: That is what is proposed with regard to linking directly to the children's strategy. The only concern I have — and I have said this to the Department and it has asked the drafters to look at it — is that this was never meant to be specifically about the children's strategy: there will be other strategies, whether it is the childcare strategy or things like the SEN Bill which has recently come forward, that would impact considerably on children and would still require cooperative working. If the Bill is linked solely to the children's strategy, I would be concerned, but, if it is linked to the children's strategy and others relating to children, however that would be drafted, I would be content.

The Chairperson (Mr Nesbitt): I sense tension between you and the Department on this. I picked up the impression that it is linking it very tightly to the strategy.

Mr Agnew: We have no problem with the strategy. In fact, one of our earlier drafts had a direct link to the strategy. However, we thought that it was too prescriptive and might scare the horses somewhat. The Department's coming forward and saying, "Let us link this to the strategy" is something that we welcome. Our concern would be if it were exclusively the children's strategy. This is supposed to be an overarching piece of work regarding how children's services are delivered. If it were linked solely to the strategy, I would have concern.

I would not say that there is tension. Indeed, my understanding is that OFMDFM raised that concern with the drafters to see whether other strategies can be encapsulated. Again, subject to seeing the draft of the amendments, I think we are coming from a similar direction of travel.

The Chairperson (Mr Nesbitt): Some witnesses who came to us talked about the need for statutory guidance to be developed to accompany the Bill. Are you in tune with that?

Mr Agnew: Absolutely. However, that is out of my hands as the Bill's sponsor. It is not something that would appear in the legislation. I am sure we will come to it. However, the pooling of budgets would need to be accompanied by statutory guidance, undoubtedly.

The Chairperson (Mr Nesbitt): Who would draw that up?

Mr Agnew: If we take the example of pooled budgets, then that would have to be done in cooperation with DFP. However, OFMDFM, as the overarching Department at this point in time and subject to any changes in Departments, would be responsible, as it is now for the amendments, for pulling that information together. My understanding is that it would be required to put forward the guidance.

As I said, it is not uncommon for legislation to be followed by statutory guidance. As the Bill sponsor, I would say that it is outside the legislation, so, barring me and my party getting into government any time soon, I would not have oversight of that.

Mr Spratt: No chance, Steven. Do not build up your hopes.

The Chairperson (Mr Nesbitt): Do not rise to it.

There has been a suggested amendment that would define the term, "functions". What would that read like?

Mr Agnew: It is something we are content with in principle. We would have to see what it would look like. I suppose that this is the advantage of having OFMDFM and a direct link, through it, to the Office of the Legislative Counsel so that we can take its expert advice on that. Where greater definition is required, we are open to that.

Mr Spratt: I have a number of issues to raise, Chair, if you can bear with me. It is important to give Steven the opportunity.

You mentioned Daniel Greenberg. I am a bit surprised that you have not had a meeting with him yet, given that he has made quite a number of criticisms. The Chair raised one of them with you in relation to ascertaining the impact it would have on young people, and you answered that. However, he also raised issues, and I will go through them one by one and give you an opportunity to answer questions on them. He said that including policy outcomes in the legislation is inappropriate and would be better placed in the strategy document, which you have just discussed. He said that using them in legislation could lead to misinterpretation, challenge and judicial review. What is your reaction to that?

Mr Agnew: The first thing to say is that we came from a point of view of looking at similar legislation to the Children Act 2004, which has high-level outcomes. It has obviously been in place for over 10 years now, and there have been no such problems.

The wording of our high-level outcomes is different, because it reflects the policy in Northern Ireland more accurately. As we discussed, the direct link into the children's strategy is something that we are sympathetic to if it allays concerns about the practical applications of the outcomes. We are keen that the statutory duty to cooperate and the outcomes continue to be linked, but we are not precious, and I have said that consistently since the initial drafting. If there is a way of doing this that allays concerns that some people have, we support that approach.

Mr Spratt: I assume you would be concerned about leaving any opportunity open for increased judicial reviews, given their cost.

Mr Agnew: Yes, absolutely. Judicial reviews should come forward only if Departments are not actively cooperating.

Mr Spratt: Also, Daniel Greenberg said that the interpretation of the way in which you have presented the Bill could leave it open. He is not saying Departments; he is saying your Bill.

Mr Agnew: No, absolutely. My intention is that, where there is a failure to meet the objectives of the Bill, it is always the last resort in terms of making sure that cooperation happens. That is why we are going through this process and why we are working with OFMDFM. Indeed, we are meeting Daniel Greenberg, and it is only for diary reasons that that has not happened sooner. We are working constructively to amend the Bill to ensure that there are no unintended consequences, such as you and Daniel Greenberg have outlined.

Mr Spratt: OK. One of his criticisms was on the duty to cooperate. He said that it could mean that Departments would have to prioritise the interests of children and young people over existing functions. What is your reaction to that?

Mr Agnew: That was a drafting flaw that he pointed out. In the last oral evidence that I gave, I think that I said to the Committee that we saw that as a drafting error and would correct it as part of the process that we are going through now with OFMDFM.

Mr Spratt: So, you will correct that when you bring the final —

Mr Agnew: Yes.

Mr Spratt: You were at the back of the room and will have heard the conversation about additional reporting that we had with the OFMDFM officials, and I think that I raised the point of increased bureaucracy with you before. Daniel Greenberg said that additional reporting duties are unwelcome, especially when there is no obvious added benefit and a potential for duplication with existing reporting measures.

Mr Agnew: Again, I said from the outset that it does not have to be a discrete report. Based on my engagement with OFMDFM, I think that they do see opportunity. If we are tying it in with the children and young people's strategy, there will already be action plans for that strategy and reporting on those action plans etc.

Mr Spratt: Tell us what you see as the yearly reporting mechanism.

Mr Agnew: My original proposal was for three-year reporting and review. The Children's Law Centre has asked for an annual report. That would be more along the lines of a statistical report and would use some of what is being done by the Northern Ireland Statistics and Research Agency (NISRA) in that regard. So, it would be almost a progress report on the numbers that shows where we were and where we are year on year. The three-year review would show whether it was working, how it was working and how it could be made to work better. That is more in line with what we have outlined in the current drafting.

Mr Spratt: So, we are talking about a three-year review as opposed to a yearly review.

Mr Agnew: Yes. We are talking about annual reporting with a three-year review. As I said, it will be a progress report up to the three years when it will be reviewed. That is certainly where the Children's Law Centre was coming from — at least that is how I understand its proposal — and I would be sympathetic to that.

On the overall picture, as I said, OFMDFM has a number of reporting requirements. Again, it would be for the OLC to confirm, but there is nothing in the legislation that says that it has to be a discrete report over and above what is being done. It would just mean that existing reporting requirements would have to conclude how cooperation was taking place.

Mr Ross Brown (Green Party): Could I come in, Chair?

The Chairperson (Mr Nesbitt): Yes.

Mr Brown: I just want to add that clause 4 actually reduces the reporting requirements. It reduces the current requirement to annually review the children's plan to a review once every three years. The Bill outlines some reduction in bureaucracy.

Mr Spratt: The focus on reporting is mostly based on cooperation as opposed to outcomes, and that was certainly a criticism that was made by Daniel Greenberg. Have you done anything to address that to improve the outcomes?

Mr Agnew: In the replacement of clause 4, we have looked at what is in place with children's services planning. This is what I mean about it not having to be a discrete report. There is already reporting on children's services plans, and it would add to the reporting that is being done and report on cooperation. It is the Children's Services Co-operation Bill; we are not writing the children's strategy or the children's plans into legislation. It is really saying that, in addition to what is happening, there will be reporting on cooperation — if it is happening and how it is happening — and on the benefits and improvements from that. We will also review how it can be done better. By necessity, the Bill is about cooperation, and the reporting contained within is specifically about cooperation. That will fit in with what is happening, which looks at performance and outcomes.

Mr Spratt: OK. You will have heard the discussion earlier about pooled budgets and the difficulties that that would create with accountability, risk management and the rest of it. That was certainly something that Greenberg raised as well. How do you see accountability, authority for payments, cost control and risk management being dealt with between the Health Department, the Department of Education, DSD to some degree, the Education Authority and other bodies that have delegated budgets? Where is the accountability? What accountability mechanisms would be put in place? Are you suggesting a memorandum of understanding (MOU) between bodies? Do you really think that MOUs work?

Mr Agnew: I am starting from the basis that the current situation is not working efficiently. The structures —

Mr Spratt: But it does work efficiently in some areas, Steven, such as for children in special education. I named a special school earlier that I have done a lot of work with. There is evidence of the Department of Education working hand in hand with the Health Department and the then education and library board — it will now be the Education Authority — to develop a plan for an individual child on physiotherapy, educational needs or wheelchair or appliance needs. There is evidence of a system that works.

Mr Agnew: I would say that there is evidence of good practice. There is no evidence of systemic good practice, which is what this Bill is seeking to move us towards. There are counter examples that I would give, which have been highlighted in some of your own consultation as well as in mine. Parents are having to go and meet somebody in the Education Department and then the Health Department, and they develop two separate plans for the same child. Everything happens in parallel rather than together. That sort of thing is inefficient for the family and the system.

Look at the report of the Northern Ireland Commissioner for Children and Young People (NICCY) around transitions. Parallel planning, for, say, a child with autism, where the Education and Health Departments are developing different plans, would increase the number of transitions that that child has to go through in moving from child to adult services. Take even the Special Educational Needs and Disability Bill. We had the situation in the Assembly when we had legislation for the Education Minister to have to work with agencies of the Health Department, but there was no reciprocal duty because it was a Department of Education Bill and not a cross-departmental Bill. We see those problems in the system.

In terms of how it would work practically, I shared with this Committee the guidance from the Department for Communities and Local Government in England, where they use pooled budgets. The evidence from that is that, where the culture of cooperation improves, pooled budgets happen almost organically. It would, of course, be for DFP to set the parameters of reporting and accounting. I know that, in the Minister's response, the early intervention transformation programme (EITP) has been cited as an example of pooling budgets. However, look at that guidance from the Department for Communities and Local Government. I would say that EITP is more of an example of aligned budgets whereby each Department keeps its pot of funding but they agree, through shared objectives, who will spend on what and who will do what. That is the kind of halfway house, as I see it, whereby everybody keeps their own accounting mechanisms and accountability, but they agree shared objectives and who spends what where.

Under pooled budgets, you would have only one set of accounting. You would have only one application process to receive that funding. Rather than having that across three, four or five Departments, you would have one point that you go through. That is inevitably more efficient. Yes, new accountability structures and systems would have to be worked out but, once you have done that, you would have a much more efficient system and more resources could go into services.

Mr Spratt: Would there be costs involved in that?

Mr Agnew: In terms of the transition, the costs would be around getting people in a room to thrash out how we make this work. That is the initial cost. Once that is set up, there are savings in the medium term because, rather than five different accounting officers, you have one, and, rather than several application processes for funds, you have one. Ross, did you want to come in on that?

Mr Brown: I wanted to come in on a couple of things. You mentioned the memorandum of understanding, and I suppose that, any time services are contracted out from government, there is generally a memorandum of understanding. The same rules of accountability would apply in that regard.

Bringing it back to what Steven said about administration and duplication: that is essentially what the pooled budget is designed to combat. One partner acts as the host, and you have a single accountancy officer rather than a host of them.

The other situation in which such budgets may be perceived as necessary is when services fall between the cracks in the responsibilities of Departments. One such example was language services for the parents of deaf children. The Health Department said it was the Department of Education's responsibility, and it said it was DCAL's responsibility, who then said it was the Health Department's responsibility. When something like that falls between the cracks, who picks it up and consolidates everything? It is an example of how a pooled budget could operate effectively to bring something into place where everybody has some level of interest but nobody is taking the overall responsibility for driving it forward.

Mr Spratt: There are two other areas that I want to raise, sticking with what Daniel Greenberg said. He said that the balance of powers between the Health and Social Care Board and other public bodies outlined in clause 4 is inappropriate. What is your reaction to that?

Mr Agnew: We always felt that we are simply placing the reporting duty where it already sits for the children's services plan, which is with the Health and Social Care Board. It has come up a number of times from different sources. The proposal we are working on with OFMDFM would elevate that to Executive level. The outworking might still be that a lot goes through the Health and Social Care Board and that its role does not change considerably. However — and Mr Maskey teased this out — the direction would ultimately come from the Executive, through OFMDFM, on the requirement for cooperation. I anticipate that the ultimate channel for that will still be through the Health and Social Care Board, but it will legislatively satisfy those who have raised concerns about those powers.

Mr Spratt: I have one final point. One of the issues that he raised was the potential impact on the Children (Northern Ireland) Order 1995. He said that would need to be considered. What consideration have you given to it?

Mr Agnew: One of the issues that came up about the Order in the development of this Bill was that this Bill is about all children, and the Order very much talks about vulnerable children. There would be some confusion were we just to amend the Children Order. What is proposed instead is that we have a stand-alone clause whereby, for example, if the children's services and the planning required are restated in this Bill, the elements of the Children Order that duplicate that will be repealed. Rather than amend the Order, which is about vulnerable children, we would have it stand alone because, ultimately, this Bill is about all children and the outcome is intended to be that vulnerable children, through a catch-all, get improved services and are less at risk of falling through the cracks.

Mr Spratt: That is all for the minute.

Mr Maskey: Thanks, Steven and Ross. In the first instance, I was pleased to hear that you, as the sponsor of the Bill, were, broadly speaking, satisfied with the direction of travel that the officials outlined earlier. Obviously, we have not had time to think about all that because we are in the middle of taking evidence and working our way through it. I am pleased to hear that the work is going on and at least there is agreement, so far, that it is going in the right direction.

It is important that we have a clear purpose for the Bill, and I think you have agreed with that. We should all be mindful that we are not saying that it will do more than it might actually do. Everybody around the table, including me, has made it clear that we want it to be successful and we want to see all the agencies and Departments cooperating properly in the interests of children and young people.

There are some arguments around that I do not really see as valid, which does not cloud my judgement in wanting to support it in the first place, but to talk about ending up with one set of accountants instead of five — there is no basis in that. Every penny spent in every Department will have to be accounted for. The Departments do not currently have a single, stand-alone accountant for money to spend on young people. I am only pointing out that I would not add it as a selling point, because it will be knocked down fairly quickly.

The other thing is around the notion, which I think Ross suggested, that, if they pool budgets and there are grey areas of provision, the Health and Social Care Board might decide, "We have £100. We have spent £80 of it. We will spend £20 because there is a crack in there and we will sort that out". I do not think that board could do that. This is a cooperation Bill; it is not policy setting. It would not decide to skew budgets, I do not think. We might need to tease that out.

Mr Agnew: Can I just make a point on that? When we met one of the agencies of a Department, it said that sometimes what currently happens is that a Department will agree to surrender money for the monitoring round that another Department will bid on to deliver a service. One of the opportunities presented through a pooled budget — it is a "may" clause; it is not a "must" clause — would be, rather than waiting until the monitoring round to surrender that and bid for it, you could have that pooled arrangement whereby Departments could put into a pot where a gap in services is identified.

The evidence from England is that that does not happen overnight, but where that culture of cooperation grows, the pooled budgets can be almost an organic outcome. We recognise that the problem needs solved. We have got the money, you have got the delivery mechanism, we will put it in through the monitoring round. That seems onerous. To go back to the point that I made about being inefficient: pooled budgets, to me, seem to be a more efficient way of doing that.

Mr Maskey: Yes, you can pool budgets, but you might not necessarily cede authority over policy. That is the point that I am making. We need to be clear and, hopefully, it will be set out in the purpose clause that it is not a body that will determine policy; it will discharge policy. It is about cooperating, and you made that point. It is an important distinction. It will be interesting to see the purpose clause and, hopefully, you will agree to that. Hopefully, we can get an agreed purpose clause from you and others who are working on it.

It is interesting that you have put forward the monitoring process and review on a three-year basis, whereas, a number of the contributors said that they wanted it on a one-year basis, and there are others who want to go further than you have. I think that you explained very well what your intention was behind that. I get the impression that, in some ways, in fairness to you because you want the Bill to work, the proposals in the Bill are relatively modest. Based on the officials' presentation the other day, the Department, in my view, seems to be thinking that it almost wants to try to enhance at least the enabling aspect for the care board, which is fair enough, insofar as it says that, if you are not getting cooperation for somebody for whatever reason, you go and there is a pathway. So, the Executive will hopefully compel it to do that. That is an enhancement, as I read it. It would probably be welcomed.

Mr Agnew: Absolutely. In some of our considerations, we put forward proposals that we thought were realistic, and, in some cases, we have almost been too modest, as the Department is saying that we could go a bit further with this, which, from our point of view, is very welcome. In that regard, having that collaborative working with it has been very constructive.

The Chairperson (Mr Nesbitt): Steven, the officials made it clear that, in their view, the way forward for a new clause 4 would be to have the central role resting with OFMDFM, and it would facilitate what will be an Executive strategy. Are you content with that?

Mr Agnew: Absolutely. The draft for clause 4 that we are currently working on is something like draft 10. I think that every draft alternated between the Department and the Health and Social Care Board because we kept getting different advice. So, raising that to a higher level is something that we welcome and something that we grappled with. I am getting a very clear direction from the Department that that is where it would be happier seeing it.

The Chairperson (Mr Nesbitt): So, you have no difficulty with OFMDFM taking the lead on behalf of the Executive.

Mr Agnew: No, no difficulty at all.

The Chairperson (Mr Nesbitt): Even though, under the proposals for the nine-Department model, responsibility for children and young people no longer rests with OFMDFM.

Mr Agnew: Presumably, that responsibility would shift to the Department of Education. I know that is where the —

The Chairperson (Mr Nesbitt): Why not place it with the Department of Education now? The change is coming within a matter of 12 months.

Mr Agnew: As structured, I do not think the Department of Education would be the appropriate place. It has to be OFMDFM because it has that oversight role. My understanding is that the children's strategy will move to the Department of Education, as currently proposed and, obviously, subject to it going through the Assembly. This element of the Bill needs to go where the children's strategy goes because, again, that is more where we are trying to direct it.

The Chairperson (Mr Nesbitt): So, you would want it to go to the Department of Education should the nine-Department model come into being.

Mr Agnew: From what I have seen of the proposals, that would be the most appropriate place post-departmental reform.

The Chairperson (Mr Nesbitt): The other area I would seek comment on is the concerns raised by the Health Minister.

Mr Agnew: In terms of?

The Chairperson (Mr Nesbitt): His concerns, to a large extent, were around clause 4, so maybe they have been addressed, but do you think his concerns are valid?

Mr Agnew: We worked with the Health Department on clause 4. I had two meetings with the Department, and OFMDFM met the Health Department and, indeed, had two meetings with the Health and Social Care Board. So, I think those concerns have been addressed.

I have one disagreement with the Health Minister. He describes the EITP as a pooled budget. By my understanding of pooling, it would be more an aligned budget. Indeed, we have a response from the previous Health Minister going back to November 2012 saying that legislation was not being passed that would enable the establishment of a pooled budget. That answer from the then Health Minister was part of our decision-making in bringing forward a clause on pooled budgets because there seemed to a lack of legislative certainty around pooling. That is why we have an enabling clause. I always said that, if it was not necessary, I would be happy to have pooled budgets, but I have not received that certainty from the Finance Department or the other Departments in terms of their ability to pool budgets. That does not seem to have happened or to be happening, so we still believe that that clause is necessary.

The Chairperson (Mr Nesbitt): A number of people who responded to our call for evidence were surprised that there was no explicit reference to consulting children and young people. Is that a fair criticism?

Mr Agnew: I think it is. In the discussions with OFMDFM, the proposal seems to be that any linking to the children's strategy would include a requirement to consult with parents and young people as well as the community and voluntary sector.

The Chairperson (Mr Nesbitt): You have been working closely with OFMDFM officials and officials in other Departments. Superficially, it looks as if everybody wants this to work. Reshaped, yes; perhaps significantly reshaped from the first draft, but it is the outcome that maybe counts. Should we as a Committee consider tabling our own amendments, or do you think we can rely on OFMDFM officials and the rest to reshape the Bill effectively?

Mr Agnew: OFMDFM has outlined its case, and I have cited my agreement with the direction of travel and where we might propose amendments. Amendments have been proposed as a result of your consultation, and we could decide, at least through correspondence, how we could proceed in that regard. We stated in our response to you which of the proposed amendments we agree with. We are happy for them to come forward from the Committee. It is almost first refusal to the Committee, because your consultation is the feedback you have had.

Not having been through this process, I am not sure of the usual practice. However, where the Committee agrees with proposals, I would have thought it would then be for the Committee to propose amendments. In a scenario in which the Committee did not agree with a proposal and we did, maybe we would follow on. I suppose that we would accede to the Committee in that regard and leave it to you to table those amendments, bearing in mind the response we gave about the proposals.

The Chairperson (Mr Nesbitt): I appreciate your response. For the Committee, that is a decision for another day. Ross and Steven, thank you very much indeed.

Mr Agnew: Thank you.