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Barren sections, jelly orphans and ghost clauses

Nothing more than a ramble, I’m afraid.  In fact, candidly, if you’re pushed for time, I wouldn’t bother. It contains nothing you need to know.  In an age of information overload, at least I’m telling you up front that you can cheerfully skip this.

I had cause last week to look up some of the fine detail of section 22 of the Children Act, which is about the duty of the LA to safeguard the welfare of children they are looking after, to try to get them placed at home with parents, to promote education and to ascertain their wishes and feelings and give regard to them.  In looking at it, I found a peculiar enabling clause within it, that allowed the Secretary of State to pass Regulations.

s 22 (7) If the Secretary of State considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, he may give such direction to the authority


(and then s22(8) Where any such directions are given to an authority, they shall comply with them even though doing so is inconsistent with their duties under this section)

 What a peculiar power  – the Secretary of State in certain cases, having the power to tell the LA how to look after a particular child in a particular way and the LA have to follow that, even if it is acting in a way that doesn’t safeguard and promote the child’s welfare.

The mind boggles at the thought of a Secretary of State who had such a hand on the tiller that they considered they might one day want to micro-manage an individual child’s case.  My best guess is whatever the 1987-89 equivalent of ‘feral children’ was being some live political fear at the time.  

It is hard to imagine any situation where the power would ever be used  (my best guess would be, if for some reason the State had not dealt with Venables and Thompson in the criminal justice system and done so purely as welfare, the way Norway did in a similar case) and for that reason, my quick check to see if any directions had ever been given under s22(7) has shown no positive results.

(They wouldn’t be regulations, so it is theoretically possible that all manner of s22(7) directions have been made and are just not recorded anywhere, but I doubt it)

And that led my brain, which you may have spotted is not averse to tangents, to wonder about those clauses in legislation that enable Secretaries of State to bring about this or that Regulation, and sit there all shiny and proud alongside all of the other clauses in the Act, only they end up never ever being taken down and used, nor revoked and just wait there, enabling provisions that never enable anything.

I don’t know if there’s a formal Parliamentary draftsmen term for that, but the best I can think of is “barren clauses”   – ones that anticipate giving birth in due course to Regulations or guidance, but never produce anything.

[Barren clauses reminded me of an old fact-oid that jelly babies had originally been named “jelly orphans” but that people had felt too sad to eat them, and thus they were rebranded, but although I distinctly recall coming across this fact somewhere, a quick check has just told me that they were initially called “peace babies” having been introduced by Bassets in 1918, and only when the concept of peace was either distant or bitterly ironic as yet another war loomed did they get rebranded.  

Shame, because I really wish the original story was true; but as ever, I find comfort in John Steinbeck  “There are people who will say that this whole account is a lie, but a thing isn’t necessarily a lie even if it didn’t necessarily happen” ]



And lo and behold, with a little more flipping, I came across another oddity in the Children Act. 

Clause 19.

Once upon a time, Parliament debated clause 19, and polished it to a fine glistening sheen, and the Lords peered at it and decided that it could live, and the Queen looked at what the Commons and the Lords had wrought and gave it her blessing.  I like to think that she touches the goatskin bound Bill with the blade of a sword and it becomes an Act, but I suspect in reality, her involvement in the process is delegated out and her contact with legislation is remote, tenuous and dull.  [* just as it is with Fish Royal, but that’s a digression too far for today]

And now, section 19 is blank. Repealed by s149(2) of the Education Act 2002.  And so it sits, a constitutional chasm, a legislative valley,  a blank space between clause 18 (7) and section 20; like the thirteenth floor in a superstitious hotel. 

And even with all the new bits and pieces that have been pushed into the Children Act since its introduction –  exclusion requirements (remember those?), care plans, leaving care provisions, inspection of boarding schools, the huge sweep of childminding (which turns s79 into quite the longest section in the Act, running from s79A right up to s79X at fourteen pages)  and special guardianship; nobody has thought to use  poor section 19 to bring in these shiny innovations. 

It has been there, ready to come to the aid of the legislators, but gets overlooked, in favour of abominations like s26ZB (which comes before s26A, if you can conceive of such nonsense)

Unless  a topic emerges that sits squarely between day care for children and provision for looked after children, section 19 is cursed, doomed forever to be a ghost clause, a space of infinite potential but no impact.

But still worse than poor ghost clause 19, is the fate which befell sections 71-78 of the Act, which vanished completely and without trace.  Worse even than that, is that together, those sections used to make up Part X of the Act, which no longer exists, although those cocksure newcomers s79A-s79X now have now seized all of that real-estate and rebranded it Part XA, the saucy beggars.   By all that is good and holy, why did we get rid of Part 10 and bring in a Part 10A?  

[Fish Royal, if you must know, is the legal term for whales, which like swans, all belong to the Queen, if they are on UK land. If a whale washes up ashore, it can’t be moved until the Queen gives permission. I once  had, amongst other peculiar roles, the responsibility of contacting the Queen if a whale washed up on the beach of our county which had a North Sea coastline. And there’s a lovely pretence, where you speak to an official and ask for the Queen’s consent for attempts to be made to save the whale, and the official pretends to go off and get instructions from the Queen before agreeing it.  They may even not actually leave the room and just do that fake footsteps on the floor thing that you do.  It was the most archaic, and yet charming,  thing  I ever did. By tacit agreement, none of us ever mentioned that whales aren’t even fish]


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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