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First Standing Committee
on Delegated Legislation
Thursday 16 January 2003
[Mr. Nigel Beard in the Chair]
Draft Commissioner for
Children and Young People
(Northern Ireland) Order 2003
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): I beg to move,
That the Committee has considered the draft Commissioner for Children and Young People (Northern Ireland) Order 2003.
I am delighted to welcome you to the Chair, Mr. Beard. The draft order was laid before the House on 19 December 2002. Its importance is principally that it establishes an important new public office, the Office of the Commissioner for Children and Young People for Northern Ireland, whose main aim will be to safeguard and promote the rights and best interests of children and young people in that jurisdiction. Other jurisdictions in the United Kingdom have considered this issue: Wales was the first to appoint a Commissioner for Children, doing so in 2001, and the Scottish Parliament is considering a Bill to establish a Scottish commissioner.
This is the most important piece of Northern Ireland legislation affecting children and young people since the Children (Northern Ireland) Order 1995. It represents a watershed in society's attitude to children and young people, marking the point at which we move beyond the traditional, narrow and somewhat paternalistic focus on the welfare of the child to a broader, more rounded appreciation of the importance of children's rights and best interests. The order will place Northern Ireland at the leading edge of international best practice in safeguarding and promoting the rights and interests of children and young people.
I shall briefly outline the provisions in what is in some senses a complex order. It has 27 articles and three schedules. Articles 1 to 4 deal with the title, commencement, general interpretation and the interpretation of the phrases ''child or young person'' and ''relevant authority''. Those provisions set out a comprehensive role and remit, encompassing young people from birth to the age of 18 or, very importantly, the age of 21 in respect of children with disabilities or those who have left care. The remit will include every public authority whose activities affect children in devolved and—quite unusually—non-devolved matters, including juvenile justice.
Articles 5 and 6 establish the Office of the Commissioner for Children and Young People and set out its principal aim, which is, as I have said, to safeguard and promote the rights and best interests of children and young persons. The term ''rights'' is not defined in the legislation, but will include all the rights recognised by the law of Northern Ireland. Article 6
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also sets out a number of guiding principles for the commissioner, making it clear that, in deciding whether or how to act in respect of a particular child, the best interests of that child are to be the commissioner's main consideration.
Articles 7 to 15 set out the functions—the duties and powers—of the commissioner. They allow for a comprehensive, wide-ranging set of functions, more extensive than any exercised by any comparable body of which we are aware. Those include promoting the rights and best interests of children and young people; acting as a watchdog in relation to public authorities; and ombudsman and advocacy functions. Those functions will give the commissioner the flexibility needed to ensure that the rights and best interests of children and young people are properly considered in situations ranging from individual cases to the development of policy and legislation. It is a measure of the importance that we attach to the functions that many are proposed as statutory duties of the commissioner, rather than merely optional functions.
Rev. Martin Smyth (Belfast, South): I appreciate the Minister's giving way so early. I seek a clarification beyond all reasonable doubt. The commissioner will have an extensive role, but I understand that the education inspectorate is not within his remit. How will that affect young children who require statementing, but who have not had that? Will they be able to go to the commissioner, or must they go through the education inspectorate?
Mr. Browne: I am grateful to the hon. Gentleman for that specific question. I may return to that issue later in today's deliberations, but my understanding is that the only limit in respect of education, so far as the normal functions of the commissioner are concerned, is that he will be constrained not to duplicate the work of any existing authority. Consequently, I think that the answer to the hon. Gentleman's specific question is that, if it is appropriate under the remit of the commissioner's office and he does not duplicate the functions of, for example, the education inspectorate, he will have a role and a responsibility in this sector. As I have suggested, however, where those roles and responsibilities are properly fulfilled by an existing office, the commissioner will be constrained not to duplicate that process. If the hon. Gentleman catches your eye later, Mr. Beard, he may wish to expand on that point. In turn, towards the debate's conclusion, I may be able to deal in more detail with any other issues that concern him in this regard.
The draft order sets out the powers at the commissioner's disposal, which are comprehensive. They include provision for three different types of investigation. The first is informal general investigations, and the relevant provisions are set out in article 8. These can be used in relation to any of the commissioner's functions, but there are no set procedures or associated formal powers to enter premises or obtain evidence.
The second category concerns investigations into the adequacy and effectiveness of the law and practice relating to children's rights and welfare, or the adequacy and effectiveness of services—article 7 and schedule 3 contain those provisions—or general
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reviews of arrangements for advocacy, complaints, inspection or whistleblowing relating to authorities that are not the responsibility of the devolved Administration. I refer the Committee to article 9. Those authorities are listed in part II of schedule 1. That intermediate type of investigation has set procedures, but few associated formal powers.
Articles 16 to 23 provide for the third type of investigation. These relate to the investigation of complaints, or the review of arrangements for complaints, inspection, whistleblowing or advocacy, in relation to individual cases, or to general reviews where they relate to authorities that are the responsibility of the devolved Administration. The authorities are listed in part I of schedule 1. In this respect, there are set procedures, formal powers of entry and evidence gathering, sanctions to deal with obstruction, and safeguards for the disclosure of information.
Article 24 provides for reviews of the order, and articles 25 to 27 deal with supplementary matters, such as privilege and the order's application to relevant authorities with mixed functions, and in relation to matters arising before commencement. Schedule 1 further defines the term ''relevant authorities'', and schedule 2 provides for staffing, funding and other procedural arrangements. Schedule 3 sets out the procedures in relation to investigations under articles 7 and 9.
The draft order is closely based on the Bill that reached Committee stage in the Northern Ireland Assembly before suspension. However, a number of changes were made in response to suggestions that were made by the Assembly Committee scrutinising the Bill and had been agreed by the Office of the First Minister and Deputy First Minister before suspension. Examples include broadening the definition of ''parent'' in article 2 to include all those with parental responsibility, and including in article 7(1)(b) a requirement for the commissioner to promote respect among children and young persons for the rights of others. With one exception, any other changes to the original Bill are minor and technical, and do not alter the intended effect of the provisions.
The exception is somewhat more complex, but it is a significant point, and I ask for the Committee's indulgence while I explain it. We have removed provisions that would have prevented the commissioner from acting, firstly, as an ombudsman in relation to an individual case and, subsequently, as an advocate on behalf of the child or young person involved. The provisions were inserted to ensure that there is no breach of natural justice in the exercise of the commissioner's powers, but having examined them, I concluded that they were unduly restrictive and I decided to remove them. I will explain that further.
I consulted the Office of the First Minister and Deputy First Minister in my capacity as an Under-Secretary of State for Northern Ireland with responsibility for some of the authorities that were to be included within the remit. I was concerned, and I believe that my concerns were shared with others, that the dual functions of ombudsman and advocate might
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have occasioned breaches of natural justice, especially if the commissioner—as ombudsman—had certain powers to investigate. The Committee will understand that it would be unacceptable in natural justice for someone to enter a process as an advocate for either side of an argument and subsequently to move to the position of judge or ombudsman who was judging the issue. Having expressed a partial view, one should not be put in a position where one ought to act impartially.
That discussion led to a conclusion—wrong, I think—that the functions should be separated, and that if the commissioner had acted on one side, he or she could not act on the other. On further reflection, the Office of the First Minister and Deputy First Minister and Members of the Assembly came to a view that, in relation to potential breaches of natural justice, the conclusion did not cut both ways and that there was no reason why a person could not enter a process in the impartial position of an ombudsman and subsequently emerge as an advocate on either side. I agree with that and I do not think that there will be a conflict in allowing the commissioner to exercise those powers. That is a significant change to the Bill that was before the Assembly, but I am sure that it will be welcomed by those who have advocated for a long time for those powers and for a commissioner in Northern Ireland. The change will meet with the unanimous—or, since that is a bit extravagant in terms in Northern Ireland, almost unanimous—approval of the people of Northern Ireland and their representatives.
I am confident that the change will meet with the approval of the Assembly and the Executive and I emphasise that the Order still contains provisions that would prevent the commissioner from acting first as an advocate and subsequently as an ombudsman.