Examination of Witnesses (Questions 240
- 259)
MONDAY 10 JANUARY 2005
MR NIGEL
WILLIAMS, MR
PETER CLARKE
AND PROFESSOR
KATHLEEN MARSHALL
Q240 Jonathan Shaw: You have raised
potential difficulties that you foresee with the appointment of
a Commissioner for England in terms of the Devolution Settlement.
Are you not whingeing really and complaining about nothing? The
fact is we have devolution, it has been embraced, and it does
throw up anomalies whether it is with Children's Commissioners,
such as yourselves, or in other areas. What you went on to articulate
is these are issues we will have to embrace, grapple with, in
a mature way as to how we have devolution as it evolves within
this country.
Mr Clarke: From my point of view—
Chairman: Mr Clarke, you are whingeing!
Jonathan Shaw: It is a fair thing to
level at you.
Q241 Chairman: He often levels it.
Mr Clarke: If I may respond? All
I am saying is it could have been done much more simply. The only
extent to which I am whingeing is why on earth have they gone
for such a really complicated, muddle model when they did not
have to. It would have been perfectly simple to say that in each
of the countries of the UK the Children's Commissioner has responsibility
for this, this and this. That would have been simple for us poor
souls who are going to have to struggle with it and, much more
importantly, simpler for the children. The only residual element
of my whinge is that it is going to be difficult for children
still. Sure, I am a grown-up, we all are, we will work out our
relationships with the English Commissioner and the rest of it,
but what worries me is it is not going to be so easy to give that
clear message to children that "Here is someone for you".
For instance, I am going to have to say, "Here is someone
for you except if it is to do with that part of your life and,
by the way, they cannot deal with it as an individual then because...."
and on we go. It could have been so much easier. That is the end
of my whinge.
Mr Williams: I would accept that
we have made our views known on this and if you want to call that
whingeing, fair enough. The reason we have done it is precisely
as Peter says, it could have been done better. The Devolution
Settlement was not followed to the letter in relation to my responsibilities.
The Northern Ireland Assembly pleaded with the Secretary of State,
and won the case, that I should take responsibility for criminal
justice matters, even though those had not been devolved to the
Northern Ireland Assembly in the past when it was sitting and
has been the responsibility of Westminster Ministers. The Devolution
Settlement is not simply a neat and tidy thing that has been set
in concrete that cannot be worked around. What we have got to
remember is what is children's experience, how do they experience
things. You cannot go along to a child and say, "Show me
the devolved bit of your life, show me the reserved bit of your
life and show me the excepted bit of your life in terms of constitutional
powers", they would think you were mad. Children are children
who have whole lives. What we are doing all the time is trying
to get the different authorities to see that so that the education
and health bits of children's lives actually can be seen as one,
and that is what Every Child Matters in many ways was all
about. Again, what we will strive to do as this rolls forward
is to ensure that children's lives are seen as a whole and we
will not hesitate to try and work that out with the English Commissioner
and force the pace on it.
Professor Marshall: I think whingeing
is a very negative word.
Q242 Chairman: It is eliciting some
very good answers.
Professor Marshall: We have not
travelled here today to whinge, we have accepted an invitation
to talk about what difficulties there are. We are very willing
to talk about that and to move towards some constructive resolutions
of it. I would say that none of us have ever been precious about
our own powers or empire building, we all want to do what is best
for the children and young people throughout the United Kingdom.
We are all very committed to making the best of what we have got
and that is what we will be working together to do.
Chairman: Excellent. We are getting a
third way commissioner. Jonathan, do you want to carry on with
that?
Q243 Jonathan Shaw: Just on this
issue about the independence and your concern that the post holder
will not be independent but will be at the behest of a politician.
In your post in the years to come, if you become unpopular and
people do not like the things you are investigating, people think
that you are investigating the wrong types of things, children
think you are investigating the wrong types of things, are you
going to fire yourself? You say it is political interference but
it is also democracy as well, is it not?
Mr Williams: There is accountability
built in our legislation. In my case, the accountability comes
in a number of ways. My appointment is for a limited term, I simply
cannot go on and on. After four years, as the legislation requires,
there has to be a review not only of my appointment but of the
office as a whole and how it is working and how effective we are
being. That is a relatively short period of time and I think the
message will get across very clearly to public representatives
who will be doing that and through the system as to how we are
getting on.
Q244 Jonathan Shaw: Who appoints
you, Mr Williams? Sorry to interrupt.
Mr Williams: It would have been
the First Minister and the Deputy First Minister.
Q245 Jonathan Shaw: Ah, a politician.
Mr Williams: Their responsibility
is for the process and then for the actual instrument of appointment.
In effect, it was children and young people who had the major
say in that appointment process. I might say one of my concerns
is I do not think children and young people are being given enough
say in the appointment process for the English Commissioner and
I would have liked to have seen more. I would have liked to have
seen them being treated as equals in the appointment process,
but that is another matter you might want to pursue. Accountability
is also through the audit arrangements, the annual report arrangements,
and ultimately I would say that if I cannot look the children
and young people of Northern Ireland in the eye, particularly
those who were involved in my appointment, in three or four years'
time and say "We have secured change", then I should
not continue in the job.
Q246 Jonathan Shaw: The English Commissioner
might be able to do the very same as well, might he not?
Mr Williams: For the English Commissioner
in terms of aspects of their role, there is direct interference
by Ministers.
Q247 Jonathan Shaw: Direct interference?
Mr Williams: Yes.
Q248 Jonathan Shaw: If something
comes up, if there is a big issue that comes up and the public
are concerned about it, what is wrong with the Secretary of State
asking the Commissioner to have a look at that? What is wrong
with that?
Mr Williams: I will just say two
sentences. I am sorry, I have got into my stride here. It is the
Commissioner being asked to undertake a formal inquiry, being
directed to do so. There is a difference between that and being
asked for advice or invited to consider what would be the appropriate
response to an issue.
Q249 Jonathan Shaw: In the way that
Ofsted do now.
Mr Williams: I think that is the
difference.
Mr Clarke: After four years you
can imagine that we have membership of all sorts of working groups
within the Welsh Assembly Government where we have observer status
and I meet regularly with the link Minister every three months
or so, we have discussions, so there is a lot of work that goes
on. What worries us here is that there is the possibility built
into the statute of operational interference in what the person
is doing and I think that is quite distinct from accountability.
Q250 Jonathan Shaw: Do you think
that is the intention?
Mr Clarke: Why else is it there,
with respect?
Q251 Jonathan Shaw: No, that is fine.
Mr Clarke: So the answer must
be yes. I can imagine it might come out of thinking "Oh,
well, what if we have another case like Climbié and we
need someone to do an inquiry", but my point would be that
the Government already has the powers to appoint someone to do
an inquiry of that sort. I think the other difference is often
in this discussion I have heard Ministers use the phrase "my
Commissioner, our Commissioner", but we are Children's Commissioners.
Q252 Jonathan Shaw: That is being
precious, is it not?
Mr Clarke: Not at all, I do not
believe so. What it shows is a Government acting with confidence
and with a degree of statesmanship because they are saying, "We
are setting up this post for a group of people who need a particular
champion at a particular time and we realise that because of the
other constraints upon us we cannot do that. Therefore, we are
setting up these posts in a way that gives them the room to manoeuvre
to champion on behalf of this group of young people and children".
I think that is part of what are called the Paris Principles for
independent human rights institutions generally. That is where
I am coming from. I do think it is a serious point and I do not
think it can be casually put aside by saying "What is wrong
with a Minister?" It is not that they are going to ask, they
are going to tell, and I think that is a very different thing.
That is my view.
Q253 Jonathan Shaw: It does feel
a bit conspiratorial, that the Ministers have dreamt up these
particular words to put on to the face of the Bill in order that
they might avoid something. That seems to be the collective impression
that you are presenting to the Committee.
Mr Williams: I think conspiratorial
is not the word that I would use at all about this, Chairman.
I simply think it is a matter of fact within the legislation that
that is the way it has been constructed. The whole of section
two of the legislation does not have that ministerial involvement
and that will form a very substantial part of the work programme
of the Commissioner. Certainly I would not be alleging that somehow
the Commissioner is going to be under the thumb of the Minister
day in and day out.
Jonathan Shaw: That is certainly
how you presented it to us when you had a great deal of scope
prior to me asking you these questions.
Q254 Helen Jones: I did not get that
impression.
Mr Clarke: I think we were asked
to focus on the problems we had, or the issues that we had.
Mr Williams: I do not think that
is fair.
Q255 Chairman: The Chairman does
not think it was very fair but he specialises in sparking you
off, to put it in context.
Mr Williams: To respond to that,
we have focused, and that was what our paper did, on the specific
comparison of powers and the differences between the English Commissioner's
role and our roles. We have pointed out in a particular regard
in relation to inquiries that there is a ministerial involvement
in two sections of the legislation that in none of our roles do
we have and, therefore, we believe that does lead to a compromise
of the independence. What I was clarifying for you before your
intervention was in relation to a whole other area there is not
that direct ministerial involvement. I wanted to make sure that
you understood that the balance of our comment is to raise a concern
in a particular area about independence and a concern that may
then flow over in relation to other areas but recognising that
in relation to Section 2 two responsibilities the Commissioner
on a day-to-day basis will be able to determine their own work
programme.
Q256 Chairman: We have got some time
constraints. Very quickly, Professor Marshall.
Professor Marshall: Can I just
add something to that?
Q257 Jonathan Shaw: Put the boot
into me even more!
Professor Marshall: My concern
is that power to direct could hijack the agenda because, as Peter
says, it takes an awful lot of resources to do this kind of investigation/inquiry/examination.
One of the things that I have to do that I want to do is involving
and consulting young people about my policy priorities. It may
well be that with what resources I have I may want to have an
investigation into an issue that young people have raised and
get them to identify the questions and get them to ask them. In
terms of encouraging citizenship, there have to be ways for young
people to get their issues on the agenda. I think there are enough
opportunities for politicians to do it and it is very important
that what scope there is in these independent offices is to allow
us to be true champions for the children and young people.
Chairman: We must move on. Paul, can
I ask you to move to the next section.
Q258 Paul Holmes: How far do the
three of you representing children's interests in Wales, Scotland,
Wales and Northern Ireland work together, or does that never arise?
Mr Clarke: We are working together.
We have been at it four years, two years and one year in appointment,
so obviously we are learning as we go along. Personally, I think
that the advent of the Children's Commissioner will mean that
we will have more regular meetings and may constitute ourselves
in some way as well. We have done a lot of phone calls and e-mails
to each other and work together in that way a lot, as well as
all being members of the European Network, which is a very strongly
supportive body. It is not one that has very strong policy directives
or anything, it could not do because we are independent, but it
is a very supportive agency.
Mr Williams: I think Peter's experience
was invaluable in helping me look at how I would set up my own
office and how I would approach the whole task. As I get involved
in the work programme of research on individual issues once my
consultation period is over, one of the questions we will be looking
at in each case is what experience can we learn from Scotland,
Wales and England. There is quite considerable relevance to that
already in a series of areas where there are differences in the
way things are worked out on the ground within our individual
countries where we can learn from the good practice in other countries.
We will constantly be trying to get the best deal for individual
children and then get the best that we can pick from each other's
brains in terms of what we can do in our own countries.
Professor Marshall: It has been
a tremendous help to have two people to ask and e-mail. I do agree
that when the English Commissioner comes on board that will provide
a certain glue in a sense because there is an overlap with all
of us. I think most of our focus, apart from asking for individual
advice and guidance from each other on how to do things, getting
staff to visit et cetera, has been about this potential overlap
with the English Commissioner and that will provide a focus that
we will have to work together.
Q259 Chairman: None of you have never
been politicians, have you?
Mr Williams: I do have to own
up to having been a Liberal Democrat councillor and also a failed
parliamentary candidate, of which there are quite a number, although
they are gradually getting fewer.
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