Children's Commissioner for Wales Bill

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Ms Julie Morgan: On amendment No. 10, it is important not to underestimate the power of secondary legislation, and the powers that the Assembly has at the moment. Yesterday, in the Assembly's Health and Social Services Committee, it was made clear that, although consultation continues, community health councils will not be abolished in Wales. School league tables and tests are also being reviewed, and Wales may dispense with that form of assessment. It is important to remember that, under the Bill, the commissioner has the power to comment on huge areas.

As my hon. Friend the Member for Bolton, West (Ms Kelly) mentioned, specific parts of primary legislation are different in Wales. For example, the amendment to the Care Standards Act 2000, which created the post of commissioner, was specifically different, and my hon. Friend the Members for Bridgend and the hon. Member for Brecon and Radnorshire mentioned education.

I am glad to be among those who support amendment No. 45. It is the key to the impetus that produced the commissioner. The Waterhouse report showed that the failure of many different bodies to act resulted in what was already a tragedy becoming a much worse tragedy. Schedule 2B, which applies to persons whose arrangements are subject to review by the commissioner under section 73, refers to the Assembly, any county or county borough council and any health authority—all the bodies that have been responsible for looking after children who have been in terrible situations about which we all know. It would be good if the Minister would clarify whether the commissioner has the power in the existing legislation to consider any omission by the Assembly.

Mr. Hanson: I am grateful to hon. Members on both sides of the Committee. I hope that I will be able to reassure hon. Members with regard to the Government's intentions on the issues that they have raised. Clause 3(1) will allow the commissioner to review the effect on children in Wales of the Assembly's exercise of its functions. Clause 3(1) inserts new section 72B into the Care Standards Act 2000, which covers the points made in relation to amendment No. 45. The commissioner will have a similar power to review the exercise of functions by the wide range of bodies listed in schedule 2A. The points have been well made by my hon. Friends the Members for Bridgend and for Cardiff, North, and the hon. Member for Brecon and Radnorshire, and the Government are confident that the Bill as drafted will meet the intentions of amendment No. 45.

I hope that the Committee will forgive me if what I say sounds somewhat legalistic; that is not my intention, but it is worth explaining the point by means of an example. The Assembly has strong powers to issue directions; in any given case, the Assembly must decide whether to use that power and, after taking into account the facts of the case, the Assembly might, quite properly, decide not to issue a direction. That would not be a failure to exercise its functions, but would simply be a case of the Assembly having taken a conscious decision not to exercise that function. In that case, the commissioner would be able to review the Assembly's decision not to issue a direction. Similarly, if the Assembly failed to exercise its powers under the Bill, I believe that the commissioner would have the power to say, ``You, the Assembly, have a particular power. You have not chosen to exercise that power. I reserve the right to review your responsibilities in that area.''

I hope that hon. Members will accept that the commissioner's review power will cover cases in which the Assembly and bodies responsible to the Assembly decide not to take action. That should address the points of concern about some of the circumstances surrounding the Waterhouse report in its original format. Many of those issues related to the failure of public bodies to act in any given circumstance. I believe that the Bill as drafted will meet the concerns of hon. Members. The failure to act is covered by the fact that the commissioner can review, as it states in the Bill,

    the exercise or proposed exercise by the Assembly of any function, including the making or proposed making of any subordinate legislation.

I hope that that satisfies hon. Members, but I would be willing to hear other concerns if they want to press the matter further. I believe that amendment No. 45 comes within the spirit of what the Government are doing and that would not add to the Bill, despite dealing with an area of concern.

With amendment No. 10, to which the hon. Member for Ribble Valley spoke, we are in familiar territory, as our discussions this morning and on Tuesday dealt with similar issues. The commissioner may be called upon at any time to comment on particular issues, and he must exercise his judgment as to how he responds to those issues. I tried to tease out from the hon. Gentleman whether he felt that highly charged political issues should fall within the remit of the commissioner, and I believe that we have reached an agreement, now on the record, that it is inappropriate for the commissioner to comment on such issues.

In relation to secondary legislation, I refer to the core function issues that we discussed earlier. The provisions of clause 3 supply a clear route for the commissioner to review the effects on children of secondary legislation such as the Assembly can bring forward. There will be occasions on which primary legislation provides a framework: the Care Standards Act 2000 is one example of primary legislation passed by the House forming the framework, but the secondary legislation—the implementation of the Act—being a matter for the Assembly. In that case, the commissioner has a duty to comment upon the impact of that secondary legislation and the Assembly's involvement in it.

As my hon. Friend the Member for Bridgend said—he covered the point well—the commissioner will be involved in many areas of secondary legislation that have an impact on children in Wales. He will examine the National Assembly's exercise of that function—indeed, he has a duty to examine it. As for primary legislation, the commissioner has no formal role. I believe that that is right: primary legislation is a matter for this House. We risk straying into political comment about significantly controversial matters.

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My comments on many of the amendments are in the same tenor as previous debates. If the commissioner considered that he should comment on proposals or legislation that had a bearing on his functions as a Children's Commissioner, given the passing of the Bill in both Houses in due course, he would be free to make representations to the National Assembly on such matters. Last year's Care Standards Act 2000 provides an example of the commissioner's role in respect of primary legislation. In theory, the commissioner could, via the Assembly, comment on the secondary elements of that primary legislation and make some general comments about the overall tenor of the Bill. However that would have to be done within the framework of the Children's Commissioner considering his functions—again, we come back to core functions—the role of the Assembly and the impact of secondary legislation on his role.

I am confident that the Assembly would seriously consider any comments that the commissioner might make in respect of the Assembly's response in considering that legislation under section 33 of the Government of Wales Act. Part of my daily role is to discuss with Assembly Ministers and Members current and potentially forthcoming legislation in this House. Therefore, there would be a framework that allowed the commissioner to address such matters, and I am sure the Assembly would occasionally ask the Children's Commissioner for his view.

I take the point made by the hon. Member for Ribble Valley. Paedophile policy, swimming and the youth opportunities fund are all issues that the Assembly may examine; at certain times, it may ask or be asked for a view. There may be issues on which the commissioner wants to comment, but he should do so within the structure of his functions, his role and the Assembly's responsibilities.

I was also struck by the comments made by my hon. Friend the Member for Bolton, West. She asked a very valid question: do we see the role of the Children's Commissioner as that of a regional lobbyist on UK policy issues that are to be determined by the UK Government. We need to think very carefully before we expand the role to cover issues that would then create potentially difficult policy issues in respect of on non-devolved matters across the UK. The points made by my hon. Friend are well worth considering in the context of the amendments.

The hon. Member for Ribble Valley mentioned race relations. There is an independent race relations commission to deal with such matters, and it will deal with the impact of race relation issues on children as well as a range of other individuals. The Commission for Racial Equality is in place and it would not be appropriate for the Children's Commissioner to undertake and duplicate the role of other commissioners. Again, those aspects must be taken into account.

The new opportunities fund is the responsibility of the Department of Culture, Media and Sport. Although the Assembly is consulted and has the ability to propose different directions, new opportunities fund activity in Wales is a matter for that Department. I accept that the Assembly will want to comment on many related issues, but the Children's Commissioner should be looking at his core functions and dealing with those matters accordingly.

Finally, mention has been made of the budget for the Children's Commissioner and the £800,000 that is there. I can assure the Committee that the First Secretary for Wales, my right hon. Friend the Member for Cardiff, West (Mr. Morgan) has undertaken that the funding of the commissioner will be reviewed after the first year, in the light of experience. That is not a commitment to increase the budget, but a commitment to review the issue in due course. I hope that those points are helpful, that hon. Members will reflect on my comments and that the hon. Member for Ribble Valley will withdraw the amendment.

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Prepared 25 January 2001