Examination of Witnesses (Questions 1-19)
20 APRIL 2004
MR PETER
CLARKE, PROFESSOR
KATHLEEN MARSHALL
AND MR
BARNEY MCNEANY
Q1 Chairman: Welcome to this meeting
of the Joint Committee on Human Rights. First of all, welcome
to our witnesses today, Peter Clarke, the Children's Commissioner
for Wales, the longest-serving of the Children's Commissioners
in the United Kingdom, Professor Kathleen Marshall, Commissioner
for Children and Young People in Scotland, and I gather you take
up your post officially next Monday, and from the Northern Ireland
Commissioner for Children and Young People we have Barney McNeany,
who is deputising today for Nigel Williams, the Commissioner,
who I gather is unwell and we hope he will soon return to good
health. In the Ninth Report of the last session of Parliament
this committee did recommend the creation of the office of a Children's
Commissioner for England. The government announced last September,
following our report and specifically in its reference to the
Victoria Climbié inquiry by Lord Laming, that a Children's
Commissioner for England was to be established, and we felt that
it would be remiss of us not to take advantage of the fact that
the three Children's Commissioners were in London today so we
seized the opportunity to invite you along. What we intend to
do is put on record your views on the powers and functions that
are proposed to be given to the new Commissioner. If first of
all we can leave what I would like to call the patchwork of how
all the various powers fit in, can I begin by asking each of you
whether you believe that the functions that are outlined in Part
1 of the Children Bill cover what is needed and whether the powers
that are associated with it will enable the new Children's Commissioner
to operate effectively?
Mr Clarke: I am just reminding
myself about which was Part 1 and which were the other parts,
so please interrupt me, madam Chair, if I get this wrong. I have
serious concerns about what is being proposed and I feel I have
a degree of locus to express an opinion because of the
overarching role across the United Kingdom that the English Commissioner
will be given. In particular I have concerns about the independence
of the office that is being proposed and the fact that the power
to investigate is dependent upon instruction from the Secretary
of State for Education. That seems to me to be a serious compromise
of the full independence of the office. Secondly, the powers in
general seem to me to be very weak compared to the other models
within the United Kingdom and indeed within Europe. The powers
seem to be confined in the main to researching issues around children's
views and participation whereas my colleagues can speak for themselves
but at least I have powers to review, to make recommendations
and to monitor the outcome of those recommendations and to require
anyone providing a service in devolved areas to children to give
me any information that I require in undertaking such a review.
I am seriously concerned that no such powers seem to be in the
Bill for the proposed English Commissioner. The third point I
would like to make is that I am also concerned about the fact
that the English Commissioner only may take into account the UN
Convention on the Rights of the Child whereas I am required to,
and I believe that such a rights-based approach is both implicit
in the Paris principles which are applied to most independent
human rights institutions for children and I have found it a considerable
boon and benefit and guide to my work. Those are the three major
concerns I have, plus a whole number of them as this Act applies
to Wales, which no doubt we will move on to.
Q2 Chairman: Professor Marshall, have
you anything to add?
Professor Marshall: I would like
very much to echo what Peter Clarke has just said about the independence,
the power to investigate, etc. In particular the phraseology of
the general function of the Commissioner appears to me to be very
weak. For example, here it is "promoting awareness of the
views and interests of children", whereas in my Act it is
"to promote and safeguard the rights of children and young
people". It is not even awareness of the rights; it is the
rights themselves, and there is a very positive duty to promote
and I have to keep under review as a very proactive role. One
of the implications of having a much weaker role in England, especially
the extent to which it is part of a UK-wide jurisdiction, is that
it is going to make it difficult for us to work together, and
a lack of focus on the Convention on the Rights of the Child is
going to mean that there will be a difficulty in having a very
common focus. At the moment the three of us have a clear joint
focus on the rights of the child and the Convention on the Rights
of the Child. If the English Commissioner, who also has partly
a UK remit, has a different focus then that is going to be very
difficult for us to work with. Those are my main concerns.
Mr McNeany: I would add my views
to those of my two colleagues from Wales and Scotland.
Q3 Chairman: Thank you very much. Mr
Clarke, you have been around longer than anyone else in this area.
Can you tell us which statutory functions that are available to
you have been most important to you in the work that you have
done and has there been any way in which you have been hampered
by the lack of other functions or powers that you would like to
have?
Mr Clarke: Apart from the ones
I have mentioned to do with the UN Convention, I would like to
expand on the statutory powers that I have to review services
for children, and indeed policies for children, not just services,
and in particular the right to require people to furnish my office
with information. From the child's point of view, which after
all is the most important thing, that has given the clear message
that there is a champion with powers and some teeth. Last year
we conducted a review in all 22 local authorities in Wales of
complaints, whistle-blowing and advocacy services for children
and we were able to get all the authorities to fill in our questionnaire,
to meet with us and be interviewed. We also met with groups of
children in some of those authorities. We then made recommendations
and they are given a degree of weight by the fact that we have
this statutory power to make them, and we have had the statutory
power to demand information and this power to monitor, to look
at whether or not they are being complied with and then to make
comment. All those powers are based in the statute and I find
it hard to understand how one might proceed without them because
it would be a simple matter for one, two or any number of the
local authorities merely to refuse to participate. I have not
had to use the powers but I have had to quote them on occasion
just to help focus the minds of those we are addressing. That
power is a very important one. The strongest power that I have
is to hold what in essence is a public inquiry and I did so last
year and I am putting the finishing touches to the report as we
speak. That enabled me to call witnesses who had to give evidence
to me on oath and it is about matters pertaining to the death
of a teacher who killed himself, sadly, two days before he was
due to appear in court on very serious child abuse charges. There
was no other obvious body who could pick that other set of issues
up and look at them and therefore that power has been very important
to me as well. The power to intervene in individual cases I personally
find very useful. It keeps me in touch with how children are actually
impacting on services and the things that are concerning them.
It establishes and reinforces my credibility in their eyes because
I do not have to tell them, "No, I cannot deal with you as
an individual, only with the issues in the round". For those
two reasons that is a very important statutory power that I have
as well. Those are the main ones and I have deliberately picked
the ones that are in contradistinction to what is being proposed
in the Bill.
Q4 Chairman: Is there any power that
you think you ought to have, the lack of which hampers your effectiveness?
Mr Clarke: Yes. If I may answer
that slightly at a tangent, I do have a general power to comment
on any matter affecting any child in Wales, and this was deliberately
put into the Bill which established my post in order to deal with
non-devolved matters. I am concerned that the English Commissioner
in the part of the Act which talks about their UK function that
there will be a direct overlap of responsibility there. My major
concern is again from the perspective of a child, how confusing
that will be, so I have felt a degree of lack of powers in those
non-devolved areas. In the public inquiry I talked of the police
were giving evidence to me but I could not require a copy of an
internal report that they had about a previous investigation they
conducted. Similarly, whenever I converse with children their
conversation ranges over matters devolved and non-devolved and
I sometimes find myself in the curious position of having to say,
"Well, yes, I can really go on this issue but not the one
about the police moving you on from the bus stops" or some
such thing. There are a number of areas over non-devolved matters
where the task would be easier were the powers similar.
Q5 Lord Lester of Herne Hill: On this
point, my understanding is that the Children Bill is not significantly
different from the devolved commissioners in respect of access
to information. It is worded differently and I am not an expert
but am I not right in thinking that under clause 4.7 of the Bill
the English Commissioner, as I will call him, would have the power,
for the purpose of an inquiry, to use section 250 of the Local
Government Act, which in effect means that he or she can summon
people to give evidence and produce documents and so on? I can
see that it is not worded the same but what are the really substantive
differences as between what is proposed for the Children Bill
and what the three commissioners under the devolved scheme have,
because they look to me in that respect similar?
Mr Clarke: Can I just as a preamble
say that I pretend no legal knowledge, and particularly of constitutional
law matters like this, but my reading of it was that the word
"review" is a strong word which is understood by the
people who I am requiring documentation and such like from. If
it is the case that this is in effect the same then I will obviously
moderate what I am saying about the Bill but the advice I have
had is that it was a weaker power. I will obviously check that.
Q6 Lord Lester of Herne Hill: I do not
know the answer. That is why I asked the question.
Mr Clarke: I am afraid I cannot
illuminate that.
Chairman: We will no doubt find the answer
in due course.
Q7 Mr Stinchcombe: All three of you in
your preliminary comments to the Chair mentioned the importance
that you attribute to the legal framework being rights based and
centring on the Convention on the Rights of the Child. What steps
do you take to promote the text of that convention directly to
children?
Mr Clarke: I suppose I had better
answer as Kathleen is not in post until Monday. I have a team
of staff called "Communications" and their primary task,
as the name suggests, is to communicate to and fro between my
office and children and young people. Whenever we are engaged
or involved in discussions with children through our website,
through our e-mail club, through the very many talks and meetings
that we have with them, wherever possible we will bring up the
issue of the UN Convention on Children's Rights. More specifically,
whenever a child or young person or group of children approach
us we try and look at what they are bringing to us within the
framework of the UN Convention and feed that back to them so that
they have an awareness in that way. I am also just about to talk
to the National Assembly about the possibility of using some of
their networks for providing information through the educational
system so that the UN Convention can achieve a higher degree of
profile for children themselves. I do not pretend that is an area
of work where in three years I have got nearly as far as I would
like but we do see it as being a matter we talk to the children
about directly.
Q8 Mr Stinchcombe: You also drew attention
to the fact that the proposed Bill only empowers the future Commissioner
to have regard to the UN Convention whereas you are obliged to
have regard to it, the difference between a duty and a discretion,
and that is also something that has been commented on in a number
of the representations we have received. To what extent do you
think that is significant?
Mr Clarke: I personally believe
it is very significant. Like any other adult, when thinking about
children, even though I am a Children's Commissioner, I often
have a temptation to think that my understanding of their welfare
is more important than theirs in some way. Having a very clear
focus on children's rights helps to act as a counterpoint to that
way of thinking. I also think that having a clear focus on children's
rights, and my colleague will probably say more on this, helps
to clarify some of the issues and whereas people often think that
a focus on rights will mean that we are necessarily getting immediately
into a conflict of rights I have found that the opposite is the
case and that when we clarify the rights of the child it helps
others around to clarify their own role within any particular
set of circumstances. I do not know if Kathleen wants to say anything.
She knows a lot more about this than I do.
Professor Marshall: It is certainly
my experience, having worked in the children's rights field since
1988, that a focus on the rights of the child can defuse hostilities.
I have mentioned before my experience, for example, of the Orkney
inquiry some years ago which was very emotive for all parties
and I found that focusing there during the inquiry process on
the rights of children brought people together and moved them
away from their hostilities. I also find the Convention and its
focus on children's rights very useful in things like the multicultural
issues that arise because the fact that almost every nation in
the world has ratified this Convention means that it provides
a common language for dialogue on difficult issues. It does not
mean you necessarily always come to the same conclusion because
there is room for interpretation and application, but at least
you can talk. It gives an international language for addressing
children's issues and, as I said in my answer to the earlier question,
amongst the four of us it would be helpful if the four commissioners
had the same focus and were able to use the same language as a
common reference point.
Q9 Mr Stinchcombe: Can I just progress
it slightly further on two points, first as to whether there is
any practical significance and difference that it will make, and,
secondly, whether there is any legal difference in the terminology?
As far as the law is concerned, these are statutory posts with
a person exercising statutory functions. In order to do so they
have to have regard to all relevant considerations anyway. I cannot
conceive that it could be arguable that they would not have to
have regard to the UN Convention in any event.
Professor Marshall: That makes
it all the more striking that the Bill says "may have regard".
The argument would be that in that sense somehow it seems to be
deliberately moving away from what is a commitment in international
law to respect the rights of children and that is why it is so
worthy of comment. If it is so obvious that the Commissioner must
have regard to the Convention why say "may" in the Bill?
It is as simple as that.
Q10 Mr Stinchcombe: Can I move on to
the practical side of it? Can you think of any circumstances at
all where the Commissioner would not have regard to the UN Convention
on the Rights of the Child and the circumstances in which that
would make a difference to the child itself?
Professor Marshall: You are then
focusing on the Commissioner and what this person is going to
be like and whether this person is going to have a rights focus
in themselves and that seems to me to be a strange way to do it.
It seems to me that Parliament should be setting the standards
which the Commissioner should be following in accordance with
its own international commitments rather than leaving something
very vague in the understanding that of course this person is
appointed in respect of international law. It seems to me the
wrong way round to do it. I do think in the legal sense, if you
are talking about rights, that rights are a claim upon a society.
It is very important to express it in that strong language that
when a government ratifies a convention like the Convention on
the Rights of the Child we are making a promise to children that
we are going to respect these standards and it is up to us to
keep these promises. Children then have a claim on us and we have
to have the language that shows that this is actually a claim,
this is a right and not just something that is at the discretion
of whoever happens to be in authority and has all sorts of other
things on their mind.
Q11 Mr Stinchcombe: If we do not change
the language in this particular regard will this Bill comply with
international legal standards?
Professor Marshall: I do not think
so. I think there will be a lot of criticism if there is this
watering down of the commitment to the Convention which we have
already ratified and we are already being held to account for.
It seems to me to be a very strange anomaly that there seems to
be a drawing back and if that is not the intention then what should
happen is to make it clear that there is a commitment in accordance
with international standards.
Q12 Mr Woodward: Just to give this some
kind of context, because the questions I am going to ask might
sound somewhat difficult, it seems to me that the inception of
Children's Commissioners in Northern Ireland, Wales, Scotland
and now to be England is a huge step forward and what we are doing
is now looking very specifically at the context for the way in
which the Children's Commissioners are able to operate. I am very
struck by a letter we have received from the European Network
of Ombudsmen for Children, which says that from a consultation
with their member institutions it appears that the legislation
for the creation of an England Children's Commissioner does not
meet the criteria for membership of the Network nor its standards,
and you, Kathleen, have already spoken about standards this afternoon.
My questions are going to relate specifically to the powers of
investigation that you have and the Children's Commissioner it
is proposed England would have. It seems to me that initially
one has to observe the fact that what is extraordinary is that
whilst all children may be the same and the needs of all children
across the nations may be the same, we have a structure at the
moment and a proposal for a structure which will give you as Children's
Commissioners and already gives you as Children's Commissioners
different powers which begs the question why a child in Scotland
should be less or more protected than, say, a child in England
or in Wales or in Northern Ireland. I refer to the very brilliant
document produced by the Commissioner Campaign Co-ordinating Group
which covers all the major children's charities in this, and their
summary document points out that in relation to the power to access
relevant information necessary for a formal investigation or for
initiating a formal investigation in a general matter, Wales,
Northern Ireland and Scotland all have those powers but England
for some reason is going to be denied those powers. Peter, you
referred to an investigation which you are carrying out in Wales
at the moment into the death of a teacher. If you did not have
that power very obviously you would not have been able to conduct
that investigation. Do you believe that is an investigation that
a departmental minister would have carried out anyway if you had
not done so, and, secondly, what do you think, without discussing
the specific conclusions of your report which I understand you
cannot comment on, would be the impact if that report were not
to have been conducted?
Mr Clarke: One of the things that
I had to explore before announcing that I would undertake this
public inquiry was to ensure that no-one else was intending so
to do. Also there was a partake review under the Children Act
into some of the circumstances that was limited by the Part 8
review under that Act. I do not believe that that inquiry would
have taken place had I not used the powers that the Acts give
me to take it forward. I believe what would have been lost, which
I think is the second part of your question, would be the opportunity,
without discussing the detail, that that presents me with to examine
the evidence, come to conclusions about the ways in which systems
might be improved in Wales, particularly for children in schools,
and to bring those recommendations forward with the degree of
force that comes from the office that I hold. Given what I have
learned that would have been a considerable opportunity to miss.
I do not think therefore, firstly, that anyone would have picked
up the issues and, secondly, they would not have been able to
deal with them in the manner that I have if they did not have
the specific powers that I have. I would have been very concerned
if that power to hold an inquiry of that sort were left at the
goodwill or otherwise of a particular minister in government.
A critical part of what the independence of this office means,
and I think as a member of the European Network what most offices
across Europe mean, is that we should be able to act in children's
interests rather than a politician who may be subject to all sorts
of other pressures going on and there may be all sorts of reasons
other than the child's welfare or rights that come into play when
looking at issues that are of public concern.
Q13 Mr Woodward: But remembering that
the government said at the time of the Climbié inquiry
that the purpose of the creation of an England's Children's Commissioner
was because they believed it was the potential to better protect
children, do you believe that that power that you and your colleagues
enjoy better protects children and do you believe that without
that power children in England would be better or worse protected?
Mr Clarke: Yes, I do believe that
it helps better protect children and it does a lot more as well.
Secondly, yes, I do think that without that power English children
will not enjoy the same degree of contribution that could be made
by a Children's Commissioner and I believe should be made and
indeed can be made in the three countries represented before you.
Professor Marshall: One of the
things about the Convention on the Rights of the Child is that
all of the rights are inter-related—protection, provision,
participation. One of the things I very much hope to do is to
use the investigation process sometimes to further issues that
children have brought to my attention, that children have put
on my agenda, have put in the public agenda. There is this issue
about them raising things themselves that from their point of
view are going to further their protection. The other issue about
the investigation being directed by ministers is that I would
not like to have an investigation or an inquiry foisted on me.
One of the things I plan to do in my first year is work on drawing
up a template for an investigation so that I can assess before
I undertake anything what it is going to cost me in time and resources,
what it is going to mean that I am going to have to set aside,
and I want to have control over that. Otherwise, if someone comes
and says to me, "You are directed to have an inquiry"
into an issue that I do not think really respects the rights of
children in the correct order of priority, I think that could
be very difficult. You could tie up the whole organisation, so
there are a lot of issues about the way this investigation provision
is currently written that cause me great concern and I would not
like to be in the position of being on the receiving end of that.
Q14 Mr Woodward: As the Children's Commissioner
for Scotland, if tomorrow the government said, "Having really
thought about this we are going to take away your powers to initiate
an investigation", do you believe you could do your job?
Professor Marshall: I think it
would make it much more difficult because, apart from anything
else and, as Peter has said, the fact that you have the powers
does not mean to say you always necessarily use them but it gives
you the status and people know you have got that power, I have
already found, although I have not taken up post yet that there
are people who are willing to tell me things because they know
that I have a legal status, that I have got legal powers to get
information and they therefore feel more justified in giving me
information that perhaps they would not give out to other people.
It is not just the actual occasions on which you use those formal
powers. It is the whole status and credibility that it gives to
the post that is very important.
Q15 Mr Woodward: So what is the benefit
to the protection of children by not giving a Commissioner these
powers?
Professor Marshall: I do not think
it is a benefit at all. If you do not give the Commissioner those
powers it will certainly not make things better for children.
I cannot say it is going to make things worse because you are
basically at the status quo, but it is certainly not going to
make things better and I think we are all in the job of trying
to make things better for children and give options for respecting
their rights.
Q16 Mr Woodward: Would Northern Ireland
agree with that?
Mr McNeany: Our experience in
the use of these powers is that we can achieve and effect change
significantly just by saying that we will use them. It is also
important, we believe, to persuade departments and agencies to
collaborate whereas before they perhaps were not prepared to do
that, sometimes passing the parcel in terms of responsibility
or budget. We are able to get people together and say, "We
will investigate this", and in doing that they will respond
more quickly.
Q17 Mr Woodward: In relation to investigation
some people say that one of the reasons that Scotland, Northern
Ireland and Wales can be allowed to enjoy these powers, or indeed
take up the power to access relevant information to an individual
case is because you have only got a few children to look after
and that when it comes to England there are so many children that
it really would be a bit like dealing with India, an impossible
task, and would so burden and handicap the system. I think that
could be a genuine observation but, despite the genuine observation,
do you believe that is one that in the interests of better protecting
children we should stick with?
Mr Clarke: My personal view is
that there are issues of scale in England which do not apply in
the three countries represented before you but then there are
lots of European countries where there are issues of scale also
and more use could perhaps have been made of some of the models
there. I also think that if one is serious about having an independent
human rights institution with some teeth then one will need to
resource it and that may require a regional structure. There are
better minds than mine no doubt who could come up with very good
structures to cover the geographical area and the numbers of children
involved in England but I do not think that should be any reason
to weaken what I see as the essential components of such an office.
Professor Marshall: I am in a
slightly different position because my general remit applies to
all children and young people in Scotland and I can advise them
on their rights and put them in the correct direction and monitor
that, for example. The formal investigation powers do not apply
to matters that relate only to a particular child or young person.
This was an issue that was much debated when it was going through
the Scottish Parliament and there was concern about being swamped
even in Scotland. It is one of these things that we just have
to keep under review. I have already indicated that I am going
to keep two lists and one is the "if only" list where
I might come across situations where I wish I had more powers,
and the other one is, if you will forgive the language, the "thank
God" list where I say, "Thank God I do not have to do
this and I am not going to get swamped by it". I do not know
how that is going to work out at the moment. It is something that
I am aware of and I am going to have to keep under review.
Mr McNeany: I agree, there is
an issue of scale and there is a larger number of children but
I agree with Peter that methods could be established, perhaps
regional offices or perhaps a tighter focus in terms of supporting
test cases.
Q18 Mr Woodward: In terms of the outcome
of these investigations, again, one of the powers which all three
of you enjoy, which it is not envisaged the England Children's
Commissioner will have, is the power to publish a report from
a formal investigation. How important do you think for the better
protection of children it is that you have the power to publish
your own formal investigation and how significant would it be
if again the government were to say to you, "Jolly good report,
Children's Commissioner for Wales into the death of this teacher,
but you cannot publish it"?
Mr Clarke: It would completely
remove the raison d'etre for the exercise in my view. Clearly
the publication of the report and particularly the recommendations
that it will contain are the most important thing in the matter
of protecting children. The idea that someone could interfere
with whether or not this report was published seems to me completely
inconsistent with my understanding of what independence means.
I am almost speechless at the idea that someone could intervene
in that way because it simply would not be worth the effort. The
other thing about writing and publishing a report is that it enjoys
a general confidence; it can be widely distributed. Transparency
is another word that is very important for our sorts of offices
and the publication of a report and the processes being open and
transparent are critical parts of our credibility. We have also
had now increasingly numbers of professionals working in organisations
who are willing to share information with us in private which
might well lead to the improved protection of children because
they see us as being independent and trustworthy in that way.
The less independent we are the less we will be able to enjoy
that sort of confidence. We now have a formal status under whistle-blowing
anyway but we get informal contacts from a whole range of people
involved with children who are letting us know things that they
would not do if they felt we were under some form of control,
particularly of a political sort.
Q19 Mr Woodward: In terms of the power
to publish, is that a view shared by Scotland and Northern Ireland?
Professor Marshall: Yes, absolutely.
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