Examination of Witness (Questions 80-99)
23 JUNE 2004
RT HON
MARGARET HODGE
MP
Q80 Lord Plant of Highfield: We suggested
that it would be a good thing to specify the powers of the Commissioner
in much more detail and in your response you said that in practice
the Commissioner will have most of the powers described, but when
you are establishing a new institution such as this is it not
important to be very clear about the scope, its powers, and what
is the objection to including a general provision stating that
the Commissioner has power to do anything which is necessary to
discharge his or her function? If such a general formula is not
used, do you agree that it is necessary to spell out the Commissioner's
specific powers? It is a new job. Perhaps it ought to be a bit
more specific in terms of the articulation of the powers. I appreciate
that might cut a little bit across the strategic and discretionary
role that you want the person to have, but I think we are still
a bit troubled by your response that he/she will have most of
the powers that we have talked about without them being very clearly
specified.
Margaret Hodge: This goes back
to an earlier part of the conversation. I think the more you specify
the more you constrain, and our desire was not to constrain. I
think we have given the Commissioner pretty broad powers within
the reservations that I articulated on the Convention to pursue
what she or he wishes to do. There were issues you raised in your
letter to me around access to premises to interview children and
those which we thought were valid issues have been raised, which
is why we pursued amendments in the House of Lords around those
issues. Where you raised a power, something that we need to specify
in order to extend the powers and the remit of the Commissioner,
we have responded. To have gone further I think would have been
to constrain rather than to let free.
Q81 Lord Campbell of Alloway: Is there
not one fundamental exception to that? The essence of the problem
is not that the information is not there but that it is not shared.
On that issue, there is an amendment down and it has been moved
and withdrawn. It got an extraordinary dusty reception from the
Government front bench that made no attempt to understand what
it was about. Do you not think that if you are going to go to
the heart of the matter, which is the sharing of information,
first of all you should specify certainly in some detail for this
purpose, not any other purpose, the parameters of his job? We
heard yesterday from the Home Office that they were thinking in
terms of whether there should be an affirmative or negative resolution
which involves Regulation. Only in this context of the separation
of powers is this a crucial matter. I am seeing my lot tomorrow
at 1.45 and I do not know what the Liberals are doing or saying,
but I know that Lord Laming is wholly supportive of this in this
limited way. You will be asked at some future time to comment
on this. What do you think?
Margaret Hodge: There are two
issues. Insofar as the Commissioner is concerned, I think the
amendments that we have brought forward ensured that the Commissioner
can have access both to information and to children and the right
of entry. Insofar as sharing information among professionals is
concerned, that is a different issue, and that is Clause 8. This
area of policy development is probably one of the most complicated
bits of the jigsaw that we are trying to put together. We start
from the basis that in both the Laming inquiry into Victoria Climbié's
death and in every other single report you could ever read about
a child's death the failure to share information is one of the
key issues that emerges that leads to an unnecessary tragedy.
So what we are determined to do is to try and establish a tool
through which professionals will share information more readily
and at an earlier stage in relation to issues of concern arising
around a child; that is the objective. It is not that we want
to set up massive databases that can interfere with confidentiality
and privacy and all those sorts of things, we actually want to
provide a tool for the professionals to enable them to work together
and share information. In looking at developing the detail of
that we have to look very carefully and we are doing a number
of things. As you know, we have a number of trailblazers who are
experimenting with establishing data sharing protocols and information
systems and we are learning from them as to what should go on
the information system, how professionals should access it and
how you can get proper protocols going which will enable people
to share information earlier. We are also doing quite a lot of
feasibility studies so that we set up something which is simple
and straightforward and which works.
Q82 Lord Campbell of Alloway: We agree
there are rules, but do you agree that they should be on the face
of the Statute? Secondly, if they are broken then ought there
not to be enforcement provisions? This is what it is all about.
Margaret Hodge: We have laid amendments,
which you have yet to come to in the House of Lords, which will
put on the face of the Bill the basic data that will exist on
the information system. It is very, very basic things like name,
address, GP, health visitor, educational setting, parental responsibility,
I probably have not covered the lot, but it is as basic as that.
What that will help us to do is it will ensure that every child
has its unique identity. One of the most shocking elements of
the Victoria Climbie« report was that in one local authority
alone—and it is ten short months that she was in England—she
had five different case files with five different case numbers.
So this is a system which will enable us, through a unique identity
number and with that information, to provide a unique identity
to the child that everybody can access and use. We have also specified
on the face of the Bill those agencies that will be expected to
contribute to the information database. We have then got to work
out—and we want to do this as openly as we can both with
all the stakeholders and certainly building on the experience
that we get from the trailblazers and the knowledge we get from
the feasibility study—a system whereby if one professional
has a concern about a child and is taking action and then another
professional comes along and has a concern about that child, we
ensure that those two professionals talk to each other. That is
complicated. We are not there with the full answers yet, which
is why some of the powers in the Bill seem a bit wide. We have
tried to limit that to give the assurances that you wanted and
the House of Lords wanted and that everybody else wanted by saying
we will do as much as we can through Regulation rather than through
guidance and we want to pursue this in a very open and consultative
way. There are very difficult issues that we need to confront,
there is not a straightforward right and wrong answer to many
of them, so the more that we can learn together and the more open
we can be about developing this system the better. What I am determined
to do is not to say, "This is so difficult we're going to
run away from it," and not have a system for sharing information.
If we do that we will genuinely be failing the memory of Victoria
Climbie« and others.
Q83 Chairman: Before we move on, Minister,
I would like just to call into question the phraseology you have
used in rejecting the notion of a Commissioner focused on individual
complaints. You have talked about a "rights based" Commissioner
and I take it what you mean by that is that you do not want the
Commissioner to focus on individual complaints because it gives
the impression that what you are talking about is someone not
being focused on the rights of the child and they are very different
things.
Margaret Hodge: Yes. If I have
misled you on that, I apologise. That is indeed what I mean.
Q84 Mr Woodward: Minister, it is possible
for people to get things wrong. The Government and its predecessor
for a number of years got the idea of creating a Minister for
Children and Young People quite wrong, it resisted it for years
and I think you have shown in a year what can be done and why
it was absolutely wrong in the past to resist it and why it was
absolutely right to create this post. That was a response to all
those children's groups saying what they did and eventually, following
another tragedy, a response that said we need to do something
about it. In relation to the creation of a Children's Commissioner
for England we have got something of the same situation where
again we have a lot of advice coming in from the children's charities
and I am a trustee of one of them, Childline, which is still concerned,
even though it sees the Government having made major concessions
in the last few weeks to improve the Bill and everybody would
approve of that, about the independence still of the Children's
Commissioner in England. That independence first strikes at the
question of the power to investigate, and there is very real concern
about the kinds of things that the Children's Commissioner in
England might be able to investigate compared with his or her
counterpart in Wales or Northern Ireland. At the moment you have
reached a judgment on this issue, but there are many in the field
who still think that the specific question of whether or not the
Commissioner can investigate an individual case or only a group
case matters a great deal. You indicate in your response to our
letter that the Commissioner will now be granted power to conduct
an investigation into cases which appear to affect a number of
children on his or her own initiative. Can the Children's Commissioner
for England open an investigation independently of the Minister
for Children?
Margaret Hodge: Yes. We would
expect the Commissioner to consult with us.
Q85 Mr Woodward: Would you be able to
say no to the Commissioner?
Margaret Hodge: No.
Q86 Mr Woodward: These are two specific
instances raised by the Children's Alliance. There has been a
lot of pressure to have a public inquiry into the fatal shootings
of four young people, including two 17-year olds, at Deepcut Army
Barracks. That might be an issue which the Children's Commissioner
for England felt should be investigated because it affects a number
of young people. Would they be able to do so?
Margaret Hodge: I think the answer
is, if you look at what I said to you in my letter, it would be
if it was an individual case which has wider public policy significance.
Q87 Mr Woodward: This would be a good
instance of a number of young people whose deaths had been somewhat
mysterious and clearly these are not touching just on specific
instances. You did say that the Commissioner would have the power
to investigate this without being closed down by the Minister.
Would the Commissioner be able to open an investigation into that?
Margaret Hodge: Let me repeat
the two parameters. The first one is that it is a case that has
wider public significance. The second is that it does not duplicate
or cut across any other investigation. If those particular cases
meet those two criteria then it would be open to the Commissioner—I
hope he would consult Government—to pursue an investigation.
Q88 Mr Woodward: You can see why the
children's charities are concerned here. Some might say that,
for example, the Ministry of Defence might have a perfectly proper
reason for wanting to conduct its own investigation and effectively
say, "Look, Minister for Children, we don't really want you
meddling around here. We would like you to have a word with the
Children's Commissioner for England. This is not a suitable area."
Again we come back to the importance of independence, do we not?
If the Children's Commissioner for England felt this was an area,
because it touched on more than one case, which they wanted to
investigate, would they be able to do so?
Margaret Hodge: Can I preface
this by saying that I do not believe life as a Government with
the Commissioner will always be comfortable. Indeed, I think the
Commissioner would be failing in their duties in relation to children
if they did not make our life uncomfortable every now and then
in relation to public policy. So we are not establishing a weak
institution, we are establishing a pretty strong institution as
a champion for children. It could well be that the Commissioner
investigates the Deepcut incident and the only provisos would
be (1) that the incidents have wider significance, and (2) that
it does not cut across or duplicate any other existing investigation.
If it meets those two criteria which would be within the legislation
then it could pursue the case and we would expect, of course,
consultation, but, equally, if the Commissioner is to work, whilst
it will not be comfortable, it will work more effectively if it
works with us on a whole range of issues.
Q89 Mr Woodward: If the Minister for
Children, let us say you or a successor one day, decided they
wanted an investigation to be conducted into something, could
you direct the Children's Commissioner in England to do so?
Margaret Hodge: We could. We have
included such a provision. There may be issues which we think
have wider policy significance for the UK Government and the Commissioner
would be the appropriate vehicle for carrying out those investigations.
We have retained that power. Let me just reiterate again: the
Commissioner has the final say as to whether or not she/he is
satisfied that the conditions have been met.
Q90 Mr Woodward: Who can independently
turn round and say, "Hang on, I disagree with your judgment
here"?
Margaret Hodge: I suppose it could
be judicially reviewed. More of you are lawyers. Am I right?
Q91 Mr Woodward: I am not a lawyer so
I am looking to you for the answer. It is an interesting question.
Margaret Hodge: I think it probably
could be judicially reviewed by somebody. Am I right?
Lord Campbell of Alloway: I am not so
sure about that—"guidance" which has no legal
efficacy is not a strong candidate for judicial review.
Q92 Mr Woodward: I think what you are
illustrating is actually why we need to be very careful before
we close down certain routes here. Another example would be a
case I can think of where a 16 year-old boy died at Stoke Heath
Young Offenders institution. If we deny the Commissioner the powers
to investigate individual cases, that would mean—and the
family in this case want there to be an investigation—they
would not be able to get in on something which actually might
be a much wider issue. Of course, it could be at the moment for
the Home Secretary to determine in either case whether the Children's
Commissioner should even be directed to investigate. Are you absolutely
convinced that we have got this right at the moment in basically
saying that if the Children's Commissioner for England decides
that it is one case and maybe one only at the beginning, nevertheless
one case he or she wishes to investigate, we are right to say
you cannot investigate a single case unless you are sure it has
multiple applications?
Margaret Hodge: Am I convinced
we have got it right? Yes, I am. I would reiterate again that
the final decision as to whether an individual case has those
wider national implications and whether or not this would be duplicating
other existing complaints mechanisms or another investigation
lies with the Commissioner. So I am absolutely convinced that
we have got it right and I am absolutely convinced that enabling
the Commissioner to focus more on an individual basis would distort
the purpose that we have in mind for the Commissioner in this
wider strategic role.
Q93 Mr Woodward: In order for the Commissioner
to do their work and to look at general matters, why is it at
the moment that this is not supported by statutory powers to compel
evidence?
Margaret Hodge: It is. It is one
of the amendments to the Bill.
Q94 Mr Woodward: In general inquiries?
Margaret Hodge: In general inquiries
as well.
Mr Woodward: That is what we are seeking
to clarify here. We know that it pertains to some areas. In general
inquiries and in relation to matters of policy does the Commissioner
have the power to statutorily compel evidence?
Lord Lester of Herne Hill: The problem
is that Mr Woodward, understandably, is reading from a brief that
is out-of-date and does not take account of what happened in the
Lords on the first day. What is absolutely clear, if I can answer
the question, is that one of the welcomed amendments made by the
Government was that in its new clause on inquiries there are powers
given under the Local Government Act to obtain information by
compulsion, where necessary, with proper safeguards and that is
why these amendments were welcomed on all sides of the House.
Mr Woodward: You have managed to throw
our team here into big confusion.
Lord Lester of Herne Hill: I took part
in the debate.
Q95 Mr Woodward: Perhaps the Minister
could clarify that for us.
Margaret Hodge: The answer is
yes. I had thought that is what our amendment did. It has been
confirmed. I have now been told where it is. Have you got the
latest version of the Bill? Clause 2(6) says: "Any person
exercising functions under any enactment must supply the Children's
Commissioner with such information in that person's possession
relating to those functions as the Children's Commissioner may
reasonably request for the purposes of his function under this
section provided that the information is information which that
person may, apart from this subsection, lawfully disclosed to
him."
Q96 Lord Lester of Herne Hill: If it
is an inquiry under the new clause, the wider clause—
Margaret Hodge: The clause that
went through the House of Lords or our clause?
Q97 Lord Lester of Herne Hill: Not only
have you done what you have just said, namely the duty to co-operate
in a Clause 2 situation, but in a new clause situation dealing
with the individual case that raises wide issues of public importance
you have there brought in, have you not, the powers under the
Local Government Act which allow the Commissioner to obtain evidence
by compulsion as you could in a local inquiry? That is why you
have covered both situations as of last Thursday.
Margaret Hodge: Thank you for
your help.
Mr Woodward: I think we are all grateful
for the assistance of Lord Lester on this point.
Q98 Lord Lester of Herne Hill: There
are two things I want to raise. The inquiry powers have widened,
the reporting functions you have have widened, but the problem
is that the recommendations are not binding upon anybody and if
they were disregarded then there is nothing that the Commissioner
could do. That is right, is it not?
Margaret Hodge: Yes. In the end
it is the power of influence. One would hope that an effective
Commissioner would seek to publicise and persuade the public and
the decision-makers of the correctness of the recommendations,
but it is power of persuasion, yes.
Q99 Lord Lester of Herne Hill: The next
question I want to ask you I would not expect you to be able to
answer today at all because it is purely a lawyers' question.
It seems to me that, even though that is correct, if the Commissioner
found that a public authority was acting in a way that was in
breach of the law in some way or in breach of the Rights of the
Child Convention insofar as it is part of our law or the European
Convention on Human Rights, there is stop nothing to stop it from
applying for judicial review under its current powers. There is
the usual power in the schedule in which public authorities can
exercise any ancillary powers needed to fulfil their functions.
Am I not right in thinking that there could be circumstances where
the Children's Commissioner would have standing to bring a judicial
review and in some cases could do something about it? If you could
possibly think about that. The other part, which is again pure
lawyers' stuff and I have raised it in the Lords already, is a
lot of us are troubled by giving absolute privilege to any report
by the Children's Commissioner. I know it is in the Scottish and
Northern Irish legislation but that does not mean it is right.
I think one needs to think very carefully, especially when you
are dealing with a Commissioner with these powers, about whether
they should be given qualified privilege, not absolute. In other
words if they act maliciously or in bad faith or recklessly then,
like everybody else, they ought to be subject to the general law
of defamation, unless it is parliamentary privilege or judicial
privilege or something connected with law enforcement. It seems
to me at the moment somebody has copied over what is in the other
legislation giving a blanket immunity which in this case I do
not think is justified. Could that be looked at?
Margaret Hodge: Indeed. If I may
I will write to you having looked at both those issues.
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