Standing Committee F
Tuesday 30 January 2001
[Mr. Bowen Wells in the Chair]
New Clause 3
Right of Commissioner to comment on court decisions
`(1) Section 77 of the Care Standards Act 2000 (restrictions) is amended as follows.
(2) In subsection (1) the words ``, or has been determined by,'' are omitted.'.[Mr. Win Griffiths.]
Brought up, and read the First time.
Motion made [this day], That the clause be read a Second time.
The Chairman: I remind the Committee that with this we are taking new clause 4Right of access to institutions
Mr. Win Griffiths (Bridgend): I am delighted to welcome you back to the Chair, Mr. Wells.
When the Committee adjourned, I was in full flow and about to deal with the commissioner's ability to initiate inquiries into matters of public concern, which, without the new clause, might be restricted. If, for example, the Secretary of State for Health had not decided to initiate an inquiry into the circumstances surrounding Anna Climbie's tragic death, and if that death had occurred in Wales and the National Assembly had decided not to initiate an inquiry, under current legislation would the Children's Commissioner have been able to initiate an inquiry of his own, despite the case having already been subject to legal proceedings? I ask the Minister to reflect upon that, or whether section 77 of the Care Standards Act would apply in such a case.
A more diffuse issue relating to the commissioner's ability to inquire into matters where there may be related or other legal proceedings is exemplified by the inquiry into alleged child abuse in north Wales. In similar circumstances, would there be restrictions upon the commissioner's ability to inquire into all aspects of alleged abuse if one or more of the alleged abusers were subject to legal proceedings, of if they had been convicted of abuse within the scope of an inquiry, such as the Waterhouse inquiry?
The first recommendation of the Waterhouse inquiry was the appointment of a children's commissioner to act swiftly in dealing with allegations of child abuse. Would the Care Standards Act prevent the commissioner from making such inquiries on behalf of children if legal proceedings were under way connected with at least some of the people involved in the allegations of child abuse?
I have made inquiries with the Library. It is standard practice that ombudsmen cannot make inquiries in a large number of areas where options are already available for people to obtain redress. However, looking at the English local government's ombudsman's rules, there is a let-out in that, if there is a good reason why someone may not reasonably be expected to follow some other procedure laid down in law, he could still appeal to the ombudsman. Would that sort of let-out allow the Children's Commissioner to consider cases that have such legal and tribunal parameters, which would usually prevent him from carrying out an investigation? As in the case of the English local government ombudsman, could the Children's Commissioner consider whether that would be reasonable?
New clause 4 is designed to ensure that the Children's Commissioner has the right of entry into children's institutions and can obtain all the information that he requires from such institutions if he is conducting an inquiry relating to children. At present, under the Care Standards Act, he would be denied such access. Our amendment would add to section 74(3) of that Act the words:
``(a1) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies''.
Does the Bill gives the commissioner that untrammelled right of entry and questioning, or are there some areas where the Government believe that that is not appropriate? If so, the issues raised by new clause 4 deserve to be examined in detail.
I anticipate that in virtually every case the commissioner would gain access to an institution caring for or involved with children and obtain the information from the people responsible without any trouble. But as the law stands, if the people in an institution want to be less than helpful, that right of access and right to information would not be granted because they would have the right to say, ``Sorry, you cannot come in here.'' The right that I am talking about is common to children's ombudsmen in other European countries. I hope that my hon. Friend will give a positive response on the issues that I have raised in new clauses 3 and 4.
Mr. Richard Livsey (Brecon and Radnorshire): It is good to see you here this afternoon, Mr. Wells.
New clause 3 deals with the right of the commissioner to comment on court decisions. That that is not possible at the moment is incompatible with the fact that the commissioner is a children's champion. That is serious as such matters can adversely affect children in Wales.
New clause 4 deals with the right of access to institutions. There has been a serious development recently in the lower courts with a court ruling that children's advocates, who speak for children who are unable to speak for themselves, may not work with children who are subject to any legal proceedings. That is extremely serious. A child with learning difficulties might have misbehaved or even committed a minor offence. He might be unable to respond adequately in a court and yet he could not now have an advocate to assist him. In Wales, we do not have adequate resources to detain children. Childrenyouthscan end up in jail, where the commissioner may not be able to visit them.
I have a case in my constituency at the moment, which reflects what I have said. I cannot give any details, but it involves a young person with learning difficulties, who has found himself in a similar situation. I wish that the Children's Commissioner already had the powers contained in these two new clauses to strengthen his ability to assist in such a situation.
I wholeheartedly support new clauses 3 and 4. In certain circumstances, the commissioner needs to be able to comment on court decisions or to obtain access to institutions where children are detained, and may, because of their situation, be adversely affected by their detainment.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I, too, welcome you to the chair this afternoon, Mr. Wells.
Most of the arguments have already been put. I agree with the hon. Members for Bridgend (Mr. Griffiths) and for Brecon and Radnorshire (Mr. Livsey). The wording of the clause it is quite peculiar. It states:
``the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by,''
the operative words in the amendment``a court or tribunal.'' No one inside or outside the House would argue that the sub judice principle is not perfectly sensible and should not be upheld. However, there is no argument for precluding proper detailed comments on, and investigation into, matters that have already been decided.
The hon. Member for Bridgend asked whether the commissioner would have been prevented from commenting on the awful events dealt with in the Waterhouse report because many of those involved had been the subject of proceedings. A number of people in my chambers in Chester spent three or four years prosecuting those evil people. IfGod forbidsuch a tragedy were to be repeated, I am afraid that the commissioner would be gagged from taking any part in the proceedings, and that is astonishing.
The Waterhouse inquiry, conducted thoroughly by Sir Ronald Waterhouse and the other members of the panel, came to the firm conclusion early on in its recommendations that a commissioner was necessary. There is no mention in the recommendations of judicial proceedings, but, looking at the spirit of what was recommended, I am sure that the inquiry would not have wished the commissioner to have been denied access to decided cases. There are two good reasons for that. First under our present constitution, laws appertaining to children, and anyone else for that matter, are made by the House and by the National Assembly. Secondly, case law precedents develop the law, and decided cases are important. In some areas of family law, they are more important than the actual statute itself. Many decided cases of family law completely change the situation. I will not bore the Committee with examples, but family law can be quite radical. Laws can suddenly be changed on the strength of a Court of Appeal of a House of Lords decision. The commissioner will not be able to feed into that.
None of us want a repeat of the awful events that gave rise to the Waterhouse inquiry, but, human nature being what it is, and given what we read about some of these paedophile rings, there is more to come throughout Wales, I hope not to the same degree, but who knows? We will have a commissioner who will have to say, `I'm sorry, but I cannot comment on that, because one of the number has been prosecuted for a sexual offence.' That is not adequate, and will reflect badly on his office and all who work in it. It will hamper the commissioner in his duties, and I am concerned about that.
The hon. Member for Bridgend said that Children in Wales feels strongly about the matter, and he mentioned the various constituent bodies of Children in Wales. They have worked hard during the passage of the Bill, and previously in lobbying the Assembly, and they were the first to flag up the need for a commissioner. Please can we take heed of their expert advice and opinions? Those people are at the coalface, dealing with children, whether they be in care, in private accommodation or in the public sphere. They know what they are talking about, and they feel strongly about this.
We have previously mentioned the two unfortunate young children from America, who were allegedly bought. I feel awful using that word. There was the high profile murder of young Damilola Taylor and the Bulger case, involving the two boys, one of whose parents allegedly live in north Wales, not that that matters. We have high profile cases involving young children in various spheres, whether in the criminal or the civil courts, and it is ridiculous that the commissioner cannot make comments. Everyone and his brother will be making comments to the press, and it would be unacceptable if an invitation to the expert on children's welfare to comment were to meet with the response, `I am sorry, that does not come within my remit. I cannot comment on anything that has been decided in a court of law.' That will doubtless hamper the commissioner. We are not playing politics with this subject. The new clause has the support of the Liberal Democrats and it was tabled by the hon. Member for Bridgend and his colleagues. I fully support the new clause and I believe that the Government are wrong. I urge the Minister to rethink even at this late stage, and to go back and consider it further for another time.
Curiously, the first thing that the Northern Ireland commissioner did was to investigate the judicial process in the north of Ireland as it impinges on children. Why is there a difference between the way that that commissioner can act and the way in which the Children's Commissioner for Wales would be precluded from considering such an investigation?
New clause 4 is also important. It would ensure that the commissioner has the proper access to various bodies that he requires to carry out his work efficiently. We have heard that he will be entitled to make informal comments. If I hear that a Department or an official body has made informal comments, I often switch off immediately. Informal comments often mean ill-informed comments or `I am sorry, I do not really know half the story but I will give you an off-the-cuff informal comment about it', which would not usually be worth the paper it was written on. Are we seriously saying that the commissioner will have to be invited to comment informally on matters because he cannot gain the proper urgent access that he may require from time to time?
We know that abuse probably continues in some residential children's homes in Wales. It will be some of the people involved in that who will refuse to give access. Those people will be obstructive, and will pose the greatest risk to children. The paedophile rings that operate throughout the UK and beyond are very sophisticated. When they see that a commissioner can be denied proper access to an institution, access will be denied. I fear for the safety of children in those circumstances. Surely we can reconsider that matter. Both the new clauses have been well drafted and have reason and force behind them. I urge the Government to reconsider, even at this stage.