Children's Commissioner for Wales Bill

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Ms Julie Morgan (Cardiff, North): I do not wish to delay the Committee because all the relevant points have been clearly made, but I strongly support new clauses 3 and 4. It would be difficult if the commissioner could not comment on some of the high profile cases mentioned by hon. Members and it is important for the Minister to clarify the commissioner's position on such cases. New clause 4 also makes important proposals and, again, I should be grateful if the Minister would make it clear whether, under the Care Standards Act, the commissioner could have access to any institution that he felt he needed to enter. Would section 74(3)(b) of that Act, requiring persons who hold or are accountable for information to provide the commissioner with explanations or other assistance, cover that? That could allow the commissioner to have access to institutions. I should prefer the new clauses to be in the Bill, but, if the Minister is not minded to accept them, I should like him to clarify the issue.

The Parliamentary Under-Secretary of State for Wales (Mr. David Hanson): Welcome back to the Committee, Mr. Wells.

Members on both sides of the Committee have made good points. I hope that I can clarify the Government's intentions on the issues raised in new clauses 3 and 4. New clause 3 would remove the specific restriction on the commissioner inquiring into or reporting on any matter that is to be determined by a court or tribunal. New clause 4 would give the commissioner a right of access to institutions that include children to whom part V of the Care Standards Act applies when investigating individual cases. I share the concern of my hon. Friends the Members for Bridgend and for Cardiff, North (Ms Morgan), and of Opposition Members, about the commissioner's investigations and agree that they should not be unreasonably restricted. I genuinely hope that my explanation will enable hon. Members to realise that we will be able to meet the spirit of the new clauses without incorporating them into the Bill.

There are many precedents for having restrictions on inquiring into or reporting on issues that have been determined by a court or tribunal. Courts and tribunals determine specific issues and it is not for the commissioner to try to reopen their determinations. That means in practice that, while the commissioner would not usually comment upon or investigate matters that are sub judice, he would not be prevented from commenting informally on the outcome of court cases or from reporting on related issues within his jurisdiction, such as the performance of social service authorities which have dealt with a case.

My hon. Friend the Member for Bridgend mentioned the case of Anna Climbie. If that case had occurred in Wales, the commissioner would not have investigated the specific issue that was before the court—the guilt or innocence of those charged with the crimes that eventually resulted in the court case. It is not the commissioner's role to decide guilt or innocence, second-guess a jury, or become involved in the legal process. Once the court has reached its verdict, the commissioner can look at the wider issues arising from the verdict.

If that case had occurred in my authority in Flintshire, north Wales, the commissioner would not have been able to examine guilt or innocence, but, once the verdict had been received, the commissioner could have considered whether Flintshire county council social services had acted properly in the run-up to the case. There may have been general lessons about child care protection matters to learn from the case, which he might have wished to investigate with colleagues from the social services inspectorate, or local government. Nothing in the Bill precludes the commissioner from considering the consequences of a particular verdict, but it would be totally inappropriate for a commissioner to consider a case during the course of a trial.

Mr. Andrew Rowe (Faversham and Mid-Kent): During that sad case, there was a moment when one of the social workers wanted to blow the whistle on what was happening. Had the commissioner been in existence, and the social worker had blown the whistle to the commissioner, presumably the commissioner could have intervened to protect the child against the incompetent bureaucratic processes that had allowed her to be abused.

Mr. Hanson: Presumably, if the commissioner had received a whistle blowing comment from a social worker, he would be able to give evidence, if called upon by the court, which is entirely different from making comments during the course of the trial. The commissioner's role does not include second-guessing the jury, but it does include looking at the consequences, post-verdict.

Mr. Win Griffiths: I understand that the commissioner cannot do anything directly relating to the verdict, and I fully support that, but, to improve the system, when the case is over, the commissioner could pore over all the evidence, set-up an inquiry of his own, and call people to clarify matters.

Mr. Hanson: There are subtle but important differences. The commissioner should not comment during a court case, unless he is called to give evidence, as the hon. Member for Faversham and Mid-Kent said, because information was passed to him that led to the court case. The commissioner should not comment as a matter of course. He would not go to the newspapers with his views on issues in order to influence the verdict. Once the verdict is given, the commissioner is free to examine the consequences of that decision.

When X has been found guilty of a crime, the commissioner can examine the agencies involved to see whether there are lessons to be learned. The commissioner cannot—this is a subtle but important difference—re-visit the verdict. Therefore, if a jury finds a person innocent, the commissioner cannot take further evidence and, as a result, say that X should have been found guilty. Those are important roles in terms of the legal system, and those roles are defined.

Mr. Llwyd: I am sure that the Minister is right, as no one in his right mind would seek to comment on the jury's verdict. Without having tried the case and heard all the evidence, such comment would be bound to be somewhat specious.

5 pm

Will the Minister give an example of a situation that would be outwith the commissioner's remit. I will read the section again. It states:

    ``This Part does not authorise 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, a court or tribunal.''

Presumably, that is included for a reason. Without referring to the social services argument—we fully understand that social services will be part of the Commissioner's remit—can the Minister give an example of where that section would come into play and would preclude comment?

Mr. Hanson: I thought I had done that; I apologise if it was not clear. The commissioner could be called to give evidence, as in the case sited by the hon. Member for Faversham and Mid-Kent, if he had been involved in determining part of the evidence on the case. However, he could not comment on the case as a general principle while it was being considered. He could not try to influence the verdict in that general sense. Once the verdict has been given, he cannot reopen it, but he can look at the consequences of the case for the agencies that are involved in child protection or welfare issues generally. I cannot give specific examples of how that would work, but I hope that the general boundary lines are clear.

Mr. Rowe: I have been torn between a Select Committee hearing and this Committee and I apologise for not having been at the early part of the debate. I entirely agree with what the Minister said, but my point was different from the one that he raised. I am seeking an assurance that, if a whistleblower were to speak to the commissioner before any question of legal proceedings arose, the commissioner would, under the Care Standards Act, have the power to look into the workings of the authority about which the whistleblower was complaining. That would have prevented the fatal injuries.

Mr. Hanson: Absolutely. I can give a categorical assurance that that is one of the central tenets of the commissioner's role.

The clarification that I am trying to provide relates to the period of the court case. It is not appropriate for the commissioner to comment upon a court case where he has not been involved in the compilation of evidence, nor is it part of his role to comment on a verdict. It is the commissioner's role to examine the implications for public service and childhood protection issues. I do not think that I can make that any clearer.

Mr. Llwyd: It is not part of my function to delay the Committee but I cannot understand how what the Minister has said is on all fours with the words

    ``or has been determined by''

``Has been determined by'' means a case has been decided by a court or tribunal. The commissioner, therefore, is not authorised to inquire or report on any matter because it has been the subject of legal proceedings that have ``been determined''. I am sorry to put it that way, but it is completely different from what the Minister is saying.

Mr. Hanson: I can only give my interpretation of the Government's thinking on the issue. I hope that that satisfies my hon. Friends the Members for Bridgend and for Cardiff, North and the hon. Member for Meirionnydd Nant Conwy.

Ms Julie Morgan: Can the Minister clarify the statement in section 77(1) where it says that the commissioner cannot

    ``enquire into or report on any matter''

so far as it has been determined by legal proceedings? Is the Minister saying that the commissioner will be able to comment on the local authority procedures that may have caused this to happen, or anything of that nature? That is the key point. As it is written, it looks as if he would not be able to comment on any of surrounding issues. The Act says ``on any matter''.

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