Examination of Witnesses (Questions 224
- 239)
MONDAY 10 JANUARY 2005
MR NIGEL
WILLIAMS, MR
PETER CLARKE
AND PROFESSOR
KATHLEEN MARSHALL
Q224 Chairman: Good afternoon ladies
and gentlemen. We mainly cover, but not entirely, English education.
We always feel particularly privileged in this Committee when
we have the opportunity and privilege to hear from the experience
of the devolved partners of the United Kingdom. Certainly, we
found a great stimulation of interest when we looked at student
finance, for example, that was great fun. I do not think we have
had anyone from the devolved assemblies or the regions, so welcome
indeed. There are certain drivers of the timetable tonight but
we have a reasonable amount of time. Can I ask if any of you would
like to have a few minutes of introduction to say how long your
experience has lasted and what you have learned, just to give
us a setting?
Mr Clarke: My name is Peter Clark
and I am from Wales. I have been in post almost four years now,
so I am the longest serving—which probably shows from the
lines around my eyes—Children's Commissioner in the United
Kingdom. Also, for my sins, I am the President of ENOC, the European
Network of Ombudsperson for Children, which was mentioned earlier.
Focusing on the proposal for the English Commissioner, which I
think is your main interest, I would just reinforce everything
that Peter Newell and Mary Marsh said over the concerns, which
we have expressed also, about the degree of independence and,
as we see it, the lack of emphasis on children's rights in what
is being proposed and therefore, in a way, the difference between
that and what would be deemed a conventional model of a Commissioner
for Children. I have particular concerns, which I will outline
very briefly, to do with the way in which devolution issues or
non-devolved matters have been dealt with. I have a general power
under the Acts which set up my post to deal with any matter affecting
any child in Wales. This really gives me a device by which I might
raise matters, which children have raised with me, for the attention
of central government where issues are not devolved in the National
Assembly for Wales. The way in which the model of the English
Commission has been set up has given that person, also, the powers
within Wales over non-devolved matters. To me that appears to
be a recipe for confusion and particularly confusion in the minds
of children. I think one of the most important ways in which we
utilise our independence is, hopefully over time, to get children
to understand that there is one person who is there meant to be
championing their rights and looking out for their welfare and
interests and now there are going to be two within Wales with
very different powers and very different remits. Obviously, I
will work with the post holder to try and minimise the confusion
and disruption that might cause, but it is an objective problem
and one which I have concerns about.
Q225 Chairman: Mr Newell, thank you
very much for that.
Mr Williams: I have been in post
since 1 October 2003, that is a little over a year now. I was
responsible for co-ordinating the short memorandum which we sent
to you. I think the message I would like to put to the Committee,
just to begin with, is that we have all expressed significant
concerns about the powers and independence of the English Commissioner
and concerns about how it is going to work out in each of our
countries, our regions of the UK, in relation to the practical
relationships with the English Commissioner. I find it particularly
contradictory and ironic that, in relation to seeking children's
views, the English Commissioner has to consult with us if they
are looking at an issue in relation to our own regions, but in
relation to the power to hold an inquiry, the English Commissioner
can hold an inquiry without coming near our offices in terms of
the legislative responsibility. I think they would be very foolish
to do that and I hope that they will not, but the statute is what
the statute is and it has put some duty to consult in one area
and not in another. Having said that, I think all of us feel that
children are more important, at the end of the day, than simply
our concerns, we want to try and make this work as best as we
possibly can and to co-operate with the English Commissioner,
but the Government has not made it very easy for us in terms of
the way it has been set up. The final point I would like to make
in opening is the question was raised earlier about, was it not
a good thing that there was such an emphasis on seeking the views
of children within the English Commissioner's office, I take that
as read within my own responsibilities. Indeed, it is expressly
stated within my legislation, but I simply could not do my job
properly unless every day of the week, in some way, I was seeking
to be in touch with children's views. I think, in a sense, the
emphasis has come out the wrong way in the legislation, you cannot
do the job of being a Commissioner without listening to children,
it is an absolute priority. But, in my view, that sits underneath
the responsibility of safeguarding and promoting children's rights
and best interests, which I seek to do by listening to their views,
one is a means to an end.
Q226 Chairman: Thank you for that,
Mr Williams. Of course you are in out pay week at the moment,
are you not?
Mr Williams: Yes, technically,
indeed, I am responsible to the Secretary of State for Northern
Ireland, who, of course, is a member of the Cabinet here.
Q227 Chairman: Recently, we had a
very useful and interesting visit to Northern Ireland where we
were very well received. Professor Marshall, it is your turn.
Professor Marshall: Obviously,
I have had the least time in the post. I have been in post for
eight and a half months now, so there is a certain extent to which
I am still gearing up, although I have been involved in a number
of issues. First of all, I would like to say that I agree with
a lot of what has been said both, by Mary Marsh, Peter Newell
and my fellow Commissioners here. I think there is potential for
confusion in having two Commissioners operating in each country.
To me it does seem strange that, in a sense, it contradicts one
of the aims of Every Child Matters which was to have one
person in charge. We have created a system where, as far as the
Commissioners are concerned, we have two people and we are going
to have to be very careful about how that is publicised and how
the message gets over to children and young people in our respective
countries. Also, there is confusion, I think, which we will have
to work through about things like terminology. We have got different
remits about things like inquiries, investigations, what is an
investigation in one area might be an inquiry in another, et cetera,
what do we mean by reviews and, I think, when we are working with
the English Commissioner, we will have to be very careful to try
and map out what is going to be quite a complicated mosaic of
different terminologies and different remits and work out how
we work together on that. Also, for example, the fact that the
children and young people covered under the remits are different;
mine, for example, covers anyone in Scotland up to the age of
18 or up to 21 if, at any time, they have been in care or looked
after. The English one is anyone up to 18 or anyone up to 21 who
has been in care or looked after since attaining the age of 16
and anyone who has a learning disability. Again, there are slight
differences in the different parts of the UK which we will have
to be concerned about. In terms of taking account of young people's
views, my legislation also has a very strong emphasis on that.
In fact, in my annual report, I must submit to the Scottish Parliament
a strategy for involving children and young people in my work
and consulting them. I cannot get away with waffly words about
that, I have got to put down in black and white what I am going
to do to consult them and to involve them in my work. Also, I
think there is another important issue about my role and vis-a"-vis
the English Commissioner in that my legislation does not embrace
dealing with individual cases either. On the other hand, there
is nothing that bans me from this "investigation" but
I am not quite sure what exactly that is going to mean for the
English Commissioner because I am quite clear, for example, that
inquiries for individual cases will come my way. I am already
recruiting for someone who is going to deal with them and try
to make sure that they get dealt with appropriately by appropriate
agencies, map out gaps and inform me on policy, so there are a
number of issues. As you see we already have different interfaces,
but I should say that, certainly with the greatest goodwill, we
will be working with whoever is appointed in England.
Q228 Chairman: Can I ask you, Mr
Clarke, because you have been there the longest, so you are more
of a target, how much added value you have given as a Children's
Commissioner in Wales? What do you think you have added which
was not there before?
Mr Clarke: I will give you my
impressions and then answer the question directly in a moment,
but just to say that I am setting up a research project to find
out the answer to that question also. They will be independent
of me, although we will be paying for it, they will be going and
asking children on a random sampling basis what they think of
the Children's Commissioner and also, they will be interviewing
key decision-makers and key agencies within Wales. I think what
my post has been able to do in the four years that I have been
in the post has been to act as a focus and a catalyst with a much
higher emphasis on children's rights and listening to children's
views and voices. I have been pleased to see the National Assembly
now adopt the UN Convention on the Rights of the Child and, therefore,
every document that comes out of the Assembly has reference to
it. This may just seem like words but I think it is beginning
to change, quite genuinely, the orientation of a lot of the policy
which is coming out of the Assembly. I think I have had some degree
of success in terms of being part of a general shift in public
mood towards children in Wales as well. These things are hard
to measure. One problem we all have in these posts is who is to
say what is down to us and who is to say what is down to anyone
else. The Clwyd Inquiry—which in my Act is called an examination,
the right to hold an inquiry and I learnt very early on that this
meant I was subject to the full Public Inquiry Acts and the rest
of it, so it was where I used the strongest powers—was where
we investigated allegations against a teacher who had committed
suicide a few days before he was due to appear in court on very
serious charges of child sex abuse. We held a full public inquiry,
we called witnesses who had to give evidence or oath and we came
out with a whole series of recommendations. I think there we have
genuinely added value to the education world because of the recommendations
we made about governorship, about the way in which children's
complaints should be investigated and they should be given voice
to and a range of other issues. There are some specifics like
that but, generally, I think we have started to improve the consensual
view in Wales about children. It is very hard to establish facts
from that.
Q229 Chairman: In terms of an inquiry
like that, where you come up with recommendations, would these
recommendations be directed at, for example, the health authorities
in Wales for action, perhaps, for new legislation in the Welsh
Assembly and would some of your recommendations come here to the
UK Parliament?
Mr Clarke: Precisely so. In the
case of that inquiry probably the majority of recommendations
were aimed at local authority educational departments and, also,
schools—and under local management of schools, as you will
know, that is not the same thing—aimed at governors and
also, aimed at the media—in a particular case of a drama
teacher -. I do not have a power but we still made recommendations
to them about the way in which young actors are safeguarded when
they are acting a drama of any sort. There were one or two recommendations
which would require primary legislation and, therefore, hopefully,
would come to this place eventually. The recommendations are made
to those bodies. I do not have the power, except in the case of
the media, to require them to reply within a three month period
to what they are going to do about that. Then, the ultimate power
is to name and shame, in that if they do not comply with the recommendations
I can go to any media of my choosing and articulate my views about
what I think about the fact that they have not complied and there
is a degree of immunity to slander and liable built into that.
That is how reviews actually work out. As I say, they are called
an examination, they are called an inquiry in the English Act
and so on. As I have got the floor, if I might just briefly say
the one thing that concerns me about the Secretary of State being
able to instruct the English Commissioner to hold such an inquiry
is I have a clear understanding now of how much time and resource
it takes to conduct such a thing. Given the concerns already that
we have about the size of the budget and, therefore, the staffing
that will be available to this person and taking on board the
fact that there are 10.5 or 11 million children in England, I
am very concerned that such an instruction would seriously silt
up or make it unlikely that the Children's Commissioner for England
would be able to do very much else, unless, of course, they go
and ask what was the Lord Chancellor to lend them a judge to do
the hearings, but then I do not understand why the Children's
Commissioner need be involved at all as the Government could do
that on its on volition in any case or it could—as it did
with Climbié—appoint somebody to do it. I have a
number of concerns around that.
Q230 Chairman: What about the people
who look at your caseload and individual cases you take up and
say: "How on earth does this man ever get the chance to be
really strategic?". Is that not a criticism and where do
you get time?
Mr Clarke: It is a criticism that
has been voiced and, I must say it is devoid of any basis in fact.
I think we have to be clear here what we are talking about when
we say, dealing with individual cases. If a child rings up my
office, my staff are going to answer, we are then dealing with
a child and whatever it is they want to share with us. The law
is very similar to what is being proposed in England, surprisingly,
in that we will refer on to the other systems which are locally
available for the child to get redress for whatever their complaint
is. But having noted the fact that they have come to us, we are
then in a good position to evaluate how well those systems are
doing. We do not carry a large present caseload, we are not an
ombudsman in the sense of having to come to a resolution of cases,
but we are someone who when children come in touch with us we
will refer them on to the right people. We ask them to keep in
touch with us and in that way we have been able, for instance,
to come to the conclusion that the system of special educational
needs tribunals and a lot of those services that should be in
place are not there. It is absolutely gold dust for me to be able
to get that information from children experiencing these things
in their everyday lives. I think we could get distracted by this
individual cases thing if we are not clear what we are talking
about. Unlike Norway, I do not have an ombudsman function in the
sense that I have to investigate, it is not a responsibility to
investigate, it is a power that I can do it.
Mr Williams: Chairman, if I could
take up that point of individual cases because probably I have
the most extensive powers in relation to individual cases and
yet, also, very, very wide powers in relation to general issues
affecting children. I would accept fully that it would not be
reasonable for the kind of powers that I have to be imposed on
the English Commissioner in relation to individual cases for the
figures that were quoted earlier, it makes it clear that it would
be too onerous. However, I would say that in relation to my own
office, I am very clear about the function of individual cases.
They are there to allow us to try and assist children and young
people to resolve matters which they are concerned about, but
then to use those individual cases to inform us about issues which
are going on in relation to children's relationship with Government
and to seek then to address, in a more general sense, those issues.
That was brought home to me, very forcefully, by a couple of experiences
we have had with individual cases where, effectively, we were
getting the same kind of case coming and we were able to resolve
it for the individual child in relation to a particular form of
health treatment, but then the case was cropping up again. It
was obvious that, in fact, it was a system problem. There was
an issue about the allocation of resources and the priority being
given to a particular type of condition that would only be resolved
by addressing that at a higher level within the system and looking
at how our health trusts were dealing with it and, indeed, the
policy of the Department of Health. The case triggered an action
on our part to try and help the individual but then it flowed
on to an issue of policy which we needed to address. Certainly,
I have taken a lot of steps to ensure that my own office—which
does have a responsibility to support individual complaints right
up to taking legal action, if necessary, on behalf of individual
complainants—does not get us as the phrase goes, "bogged
down" in individual cases, but rather becomes a springboard.
In the way that I have approached this within Northern Ireland,
we have put a lot of emphasis on trying to identify—which
I know the Minister for Children and Families is so concerned
that the English Commissioner should take up—what are the
general issues affecting children and we really need to address?
The very first thing I did when I was appointed was to instigate
a major research study to look at what were the issues in Northern
Ireland that really were affecting children and young people where
their rights were not being addressed in an appropriate way or
were being underplayed or were not being met, using the United
Nations Convention as a kind of template to do an audit of how
Government currently is behaving in relation to children. That
produced a list of 52 issues that, if you like, is the shopping
list for me and we are now in the middle of a public consultation
to narrow that down, to prioritise the general issues that we
need to be dealing with, and our casework is one of the factors
that has informed that priority setting exercise.
Chairman: Thank you for those opening
remarks. I will hand over to Helen Jones now.
Q231 Helen Jones: I want to look
at the issues of rights in a moment, but can I ask you a very
practical question first of all. We have got these different pieces
of legislation representing different parts of the country and
I was born and brought up in Chester and it is quite common for
people to live in Wales, go to school in England, use the primary
health care services in Wales and use the hospital in England
and so on. How is a problem concerning a child in any of those
border areas going to be dealt with in practice?
Mr Clarke: If I can respond?
Q232 Helen Jones: It is probably
more for Mr Clarke and Professor Marshall than for Mr Williams.
Mr Clarke: I genuinely do not
know the answer. Once the person is appointed I will be ringing
him up very early and asking for a meeting precisely to discuss
some of these things. For instance, tomorrow I am going to Bristol
to look at a juvenile justice institution where I understand 70%
of the inmates are from Wales. This is a classic example of where
this interplay between my role and the English Children's Commissioner
is going to be complex. A lot of those young people at some point
will have been under the auspices of a youth offending team and
a youth offending team is part social services, which is devolved
to Wales, education perhaps, which is in the main part, and then
it will have probation and the police maybe that are not. There
are all sorts of geographical and organisational complexities
that are going to arise. I tend to have gone along the lines that
I will do something until someone tells me I should not, and I
am sure the English Commissioner will do likewise, but we will
meet early to try to resolve some of those issues. It is not just
the example I have given, you are quite right, in Powys people
are using health facilities in Hereford, Shrewsbury and the rest
of it. We have got a lot of children from England who are being
placed by private fostering agencies within Wales and vice versa,
so we are going to sort out something, be it a Memorandum of Understanding
or whatever, so the children do not miss out. That is the most
important thing. It is nothing to do with our empires, it is all
to do with the children. Are those children in that Bristol unit
aware that they have got a Commissioner? If so, which one do they
go to? That is the simple question, the practical question that
they will need answered and it is our responsibility to work together
to make the answer as simple as possible. I think the Government
could have been a lot more helpful.
Q233 Helen Jones: Professor Marshall,
do you want to comment?
Professor Marshall: I think exactly
what Peter was saying. I have not come across that yet but I am
pretty sure that we will because also we have people who are within
the childcare system but, for example, placed in England et cetera.
I think we will have to co-operate and work out how we are going
to deal with these issues and keep it child centred.
Q234 Helen Jones: What will be the
position if, for example, one of you investigates a case arising
from something brought to you from a child in Wales or Scotland
but which leads on to the necessity for recommendations to be
made about the way the Health Service operates in England? Do
you have the powers to deal with that or will you have to deal
with it through the Children's Commissioner for England?
Professor Marshall: I have no
hesitation about commenting on anything to do with children in
Scotland and anything that impacts upon their rights basically,
which includes their interests, their welfare, et cetera. I do
not think you need legal powers to comment on it if you keep it
child focused. My job is to promote and safeguard the rights of
children in Scotland and if there are issues that come from outwith
the boundaries of Scotland that impact on them then I do not think
I need legal powers to comment on that. Having said that, I am
pretty sure that once the English Commissioner is in place that
would be a very obvious place to go initially to start the conversation
and work out how we are going to address this issue together.
Certainly it will make a change in my own practice from that point
of view, that certainly I would seek to consult the English Commissioner
on any of these issues.
Mr Williams: I have had an interesting
issue raised with me by one of the senior commanding officers
of the army in Northern Ireland about children who are resident
in Northern Ireland alongside their parents who may be involved
in one of the regiments serving there as to what about the issues
affecting children who are on those army camps in terms of their
rights and so on. Clearly there the direct departmental responsibility
is through to the Ministry of Defence but the children are actually
resident in Northern Ireland. You may feel in a sense that is
quite a small number of children but, nonetheless, I think the
issues affecting them are very important and for my part that
is something I would seek to try and work through with the English
Commissioner if there was a general issue that may well be cropping
up in army camps in England, Wales, Scotland and, indeed, outside
the UK where children are going overseas with their parents. I
think we are going to have to work some of these things through
co-operatively and seek to do the best deal we possibly can from
the basis of the children who first contact us.
Q235 Helen Jones: Thank you very
much. Can I go back to the issue that we were discussing before,
the statutory requirement which I think all of you have to protect
and promote children's rights, on which there was a great deal
of debate when this Bill was in the House. Could you give the
Committee some idea of how that shapes your work? What difference
does having that power make to you? How do you think not having
it will affect the English Commissioner's ability to get on with
the job?
Mr Clarke: There are people more
erudite than I on this matter here, but if I could get my bit
out of the way quickly. For me personally, the overarching duty
and responsibility I have is to promote and safeguard the rights
and the welfare of children. If I did not have the rights bit,
if I did not have the UN Convention as the basis of what I do,
I think I would be in danger of lapsing into the very strong paternalism
that often comes with welfare views of what children are all about.
Of course their welfare is important, but I think that very much
needs to be balanced by a view of their rights, that children
actually do have rights. If we look at the UN Convention, a lot
of the way those rights are articulated are phrases like "the
child must have a say", they are not these rabid rights which
sometimes they are portrayed to be. In essence, that is it for
me. It keeps me from falling too easily into the welfare trap.
Once one has done that I think one is in danger of sometimes trivialising
the child's view and the child's expression of what they want
and what they have a right to expect from us. We have a Professor
of Child Law here who will be able to speak much more articulately
on that.
Professor Marshall: Nigel, do
you want to say something?
Mr Williams: I do, but you go
first.
Professor Marshall: I find the
whole rights basis absolutely crucial because the way I explain
it, and I started explaining it to children this way but I now
explain it to adults this way because I think it gives it a moral
authority, is I say that the UN Convention on the Rights of the
Child, for example, is a set of promises that we have made to
children, that we will do certain things to make life better for
them. I think the fact we are saying we have made promises to
them is something that children and young people understand, they
understand about keeping promises and about failing to keep promises.
Also, I think it is important to underline the fact that I do
not make the rights up. The promises have already been made in
our ratification of this international convention and my job,
as I see it, is to keep the Government and the country to the
promises that have already been made. I think that does give it
very much a weight and an objective content. Interests can be
subjective, people can have different views on the interests of
children. In fact, my legislation does not talk about welfare
and interests, it talks about promoting and safeguarding the rights
because the rights include the interests and include the welfare
and I feel it is critical to my role in that moral authority to
keep harping on about that thing that is objective, it is already
promised and I am there to try and make the promises real.
Mr Williams: One could not put
it better than Kathleen has just put it in terms of the promises
and I think that is absolutely right.
Q236 Chairman: She is a professor!
Mr Williams: Yes. In terms of
the difference it has made to my office, that has been the starting
point. That is why I commissioned that piece of research to look
at how those promises are working out in practice in Northern
Ireland, where have we failed to meet the promises that we made
when we signed up to the UN Convention and where are the areas
that we are not doing as well as we should be. That has determined
what the agenda will be for the office. Then I am going out to
listen and see how children and young people feel about those
promises, what are the things that concern them most, what do
they feel needs to be fixed first and what is the issue that they
are most concerned about. It becomes a holistic effort in trying
to reach out and work alongside children in order to help them
change the world and secure the promises that they want. I feel
that the English legislation is a wee bit back ways up, it has
got the cart before the horse or is the wrong way round. I am
getting my analogies all confused here but you see what I am trying
to say. It is talking about listening to the views and then it
is tacking on at the end in listening to the views and working
out what the interests are that you must have a look at the UN
Convention. That seems to be the wrong way round to me.
Q237 Helen Jones: Can I move on to
another issue which has also been very controversial and that
is about the independence of the English Commissioner. Do you
feel that as the Act is set up, the English Commissioner will
have sufficient independence? Can you give us any examples perhaps
where having greater independence under your legislation has brought
benefits to the work that you do?
Mr Clarke: On a general level,
the independence of my office means that I can say honestly to
children and young people, "I am here for you. I am not here
for anyone else, I do not have anyone else's agenda. As long as
I keep to these broad parameters set down by these two Acts of
Parliament that set up my office, I am here for you." I only
have one boss in a sense. My accountability comes through the
National Audit Office and all the rest of it rather than through
a political accountability. I do think that this power to instruct
the English Commissioner to undertake investigation potentially
is quite a serious inhibition on their independence and a serious
limitation on it. I have already talked about the impact it would
have on their work programme, but from a child or young person's
point of view there are likely, therefore, to be activities that
are being planned to listen to children and re-present their views
which will be knocked off course because a Minister has said so.
To me, that is a serious impediment to real independence.
Mr Williams: I am concerned both
about the requirement that the Secretary of State can instruct
about undertaking an inquiry and the requirement to consult the
Secretary of State if the Commissioner wants to instigate an inquiry
at their own behest. I do not have either of those things. Ministers
can ask me for advice and I can offer advice, even if it has not
been asked for, and that seems to me to be the right way round.
We had a case where ASBOs were being introduced in Northern Ireland
and it seemed to me that they were being introduced with considerable
haste and without thought being given to the views of the children
and young people who are likely to be subject to some of those
orders. The Ministers were very unhappy that I was unhappy and
was being publicly unhappy about it and, indeed, under my powers
I did what I was entitled to, which was to take the Minister to
court for judicial review. I think having that independence allowed
me to do that, even though people did not want me to do it, civil
servants would have much preferred that I did not do that, of
course, and yet I felt I had the basis of independence and there
was no other part of my responsibility over which Ministers had
control which they could then use against me because I had done
something that they did not like. I believe the independence is
crucial and I am concerned about how that will actually work out.
Q238 Helen Jones: Thank you.
Professor Marshall: My legislation
actually says that I am not to be subject to the direction or
control of (a) any Member of the Scottish Parliament, (b) any
Member of the Scottish Executive or (c) any Member of the Scottish
Parliament corporate body. It is made quite clear on the face
of it that I have to be very independent. I think it is important
from my point of view in a sense divorcing me from any implications
of party politics. I have to be completely politically neutral;
I am neither the opposition nor am I part of the establishment.
I have made it quite clear that I will not hesitate—
Q239 Mr Pollard: The third way?
Professor Marshall: I will not
keep away from issues that are politically contentious because
I think to do so I have to be involved in anything where the rights
of children are concerned, but I will not be getting involved
in a political way. As long as I can maintain that non-political
objective stance on the promises that we have signed up to then
that gives me a certain credibility and a certain strength, that
I am not tied into any government, I am not tied into any party
politics and I want to be very clear about doing that, that I
am being objective about the rights of children.
Mr Williams: If I could just add
one further thing. I think the independence actually is a complete
independence because also we have to be careful that we are independent
of the voluntary sector, even though both Peter and I have a long
background in the voluntary sector, and Kathleen too. It is possible
that the English Commissioner may come with some background in
the voluntary sector or he may not, he may come from the statutory
sector. It is important that we are looking at children's interests
completely independently and not simply from the agenda of the
voluntary sector, although we might agree with much of it.
Helen Jones: Thank you, that is very
illuminating.
|
