Examination of Witnesses (Questions 20-39)
20 APRIL 2004
MR PETER
CLARKE, PROFESSOR
KATHLEEN MARSHALL
AND MR
BARNEY MCNEANY
Q20 Mr Woodward: How would you respond
if the government said you were not able to publish a report?
Professor Marshall: I would be
horrified. I actually do not know if I could maintain this position
and put myself forward as an independent person with a duty to
promote and safeguard the rights of children if I were not allowed
to publish reports into areas where I believe that these rights
have been transgressed. To me it undermines the whole process
and personally I would find it very difficult to operate with
a clear conscience and with my own sense of personal integrity
under that system.
Mr McNeany: I agree. It would
completely undermine the independence of the office. I do not
know how we would be able to follow up review work if we could
not publish results independently.
Q21 Lord Judd: I would like to come back
to this point about individual complaints. I totally understand
the aspiration and the principle. We have recently been visiting
Strasbourg and what is very interesting there is that the expectation
which has now grown across Europe that this is the court to which
ultimately everybody can go is swamping the court, making the
court inefficient in its rate of progress on complaints, and all
the energy seems to be going increasingly into how you produce
a sifting mechanism to ensure that too many individual complaints
do not come and to try and correct the balance between individual
complaints and general policy. Do you not think that your success,
which I am sure will come, may lead to the same danger, that there
is a paradox here, that on the one hand of course one understands
the strength of the argument but on the other hand the results
may handicap the objective?
Mr Clarke: I do acknowledge that
and it is a pressure we have even felt within the scale of Wales
on occasion, this balancing. What was achieved in the Acts that
set my office up was this power to review in particular systems
for complaint and advocacy on the one hand and the need to be
in touch with children's direct impact with services on the other.
I am meant to be the place that children come after they have
gone through the complaints procedure. Of course, we are in the
early stages yet. We have only been able to review a very small
segment of complaints procedures, so right now we are having to
deal perhaps with more cases than we will ultimately do once those
local systems for complaint resolution are in place. Even then
I think it is something we need to keep constantly under review.
My personal experience at the moment is that again from a child's
perspective it is hugely helpful to my credibility that I can
pick up an individual case and run with it because otherwise the
dialogue would be much more difficult because I would have to
say, "No, we cannot do that. I can talk to the people who
make the policies for you".
Q22 Lord Judd: But down the road you
have to count that against the frustrations of the children who
will not get a proper service in the future as the expectations
grow. It is interesting, and some people are arguing at the moment
that the European court should have emphasised an auditing role
on the processes that are there rather than a route for individual
complaints. I just wonder whether you have any comments about
balancing these two cultures.
Mr Clarke: I am not that far down
the road yet but I would be perfectly open if we get to that point
to saying so. I think it would be important to take the responsibility
and integrity is a word that has been used already. I think though
that if we can get the complaints system within all the other
services right we are far more likely to have the latter role
that you have just talked about, which is monitoring and auditing
those systems, and only on occasion and by exception will we have
to intervene in an individual case. That is my hope. It is doable,
I think, within the scale of Wales. I understand there are genuine
issues on the scale of England but I think we could resource it
adequately to achieve it there also.
Q23 Lord Lester of Herne Hill: Going
back to reporting on the investigations, the problem of privacy
and identifying particular children, the way the Children Bill
deals with it, as you know, is to give the minister the power
to censor the privacy considerations before the report is published.
The way that is dealt with in the discrimination legislation is
to give the Commission a duty not to publish in a way which would
invade privacy. Under your devolved schemes how do your reporting
functions properly respect privacy? Is it left to you as Commissioners
to do that as it could be under the Children Bill, or is it just
vague at the moment because that is a practical point that we
will have to think about?
Mr Clarke: It is in my Act and
it is my responsibility to safeguard privacy where appropriate.
I cannot remember the exact phrasing of the Act but I have to
have due regard to privacy and in any report be careful of that.
Q24 Lord Lester of Herne Hill: Can you
think of any good reason why the new commissioner should not have
the same obligation rather than leaving it to the minister to
act as censor in that respect?
Mr Clarke: I can think of no good
reason whatsoever and every good reason why it should be with
the commissioner.
Q25 Baroness Prashar: I want to move
into the area of recommendations and guidance. As I understand
it, you can make recommendations on law, policy and practice but
clause 2(2) of the Bill says that the new commissioner may "encourage"
service providers to take account of the "views and interests
of children", or "advise" the Secretary of State
on the "views and interests" of children, and "consider
or research" the operation of complaints procedures. Do you
have any reservations about the terminology such as "advice",
"consider" in relation to the principal functions of
the new commissioner?
Q26 Professor Marshall: I think the "advise",
"consider" terminology in the Children Bill is much
weaker than what I have in the Scotland Commissioner's Act but
it is all about "promote", "review", etc.
It is very much more proactive. I just think it is very weak language.
I am not quite sure what else I can say about that. You were talking
about recommendations.
Q27 Baroness Prashar: I want to move
into the area of the obligation to make recommendations but here
the terminology seems to be much weaker.
Professor Marshall: Yes. I endorse
that. As I say, I am happy that I have got the strong responsibility
to promote, to safeguard, to keep under review, rather than just
encouraging and advising, which is much more of a sideline activity.
I feel that I have a much more proactive duty to go out and do
these things and be a real participant in them.
Q28 Baroness Prashar: Would you all agree?
Mr Clarke: Totally and wholeheartedly.
Mr McNeany: Yes.
Q29 Baroness Prashar: How do you expect
to use your own powers and functions to bring about immediate
change in government or in service provision for children?
Mr Clarke: There are so many different
levels on which I can answer that so I will just give indications.
We obviously get consulted on anything coming forward from the
Assembly and therefore we have a point there to have influence
and we try and involve children and young people in informing
our view on that. We do systematic reviews, and I have alluded
to one already. We also can do investigations under our powers
to review into a more geographically confined service and it might
be in a particular area that we have concerns but we can again
make recommendations and monitor those recommendations. There
are some single issue things that come to us from children too.
In the first three years I can think of a couple, Tetra masts,
for instance. I have been written to by children who have been
concerned about the potential impact of microwaves on their development.
They show very great awareness of these sorts of issues. In all
those I can use these strong powers and go in straight from the
prompting of children and young people. Like you, I think this
language is far too weak.
Q30 Baroness Prashar: How do you expect
to use your functions?
Professor Marshall: It will be
a mixture of persuasion, argument and very strong statements.
Persuasion obviously has to come first and part of the debate
leading up to my appointment was about changing the culture. That
is a very important role because I believe, as I have said already,
that, just as a focus on the rights of the child can sometimes
be a cohesive move rather than a confrontational divisive move,
most people do want what is best for children and if you can present
the issues and the possibilities in a way that engages people
you see that you do actually have a common agenda, although perhaps
you have been using different language. You can move on in certain
matters. This persuasive, changing the culture thing will be the
first part. If that did not work I would then go into arguments
about rights and claims and things. Moving on from that, one of
the ways I would see myself doing it is almost mimicking the Human
Rights Act, statements of incompatibility, but if I felt I had
gone so far, I had given every argument and something that was
happening was a clear breach of the Convention on the Rights of
the Child I would make a statement of incompatibility and present
that to the UN Committee on the Rights of the Child. If I used
that carefully and selectively and with force I think that could
have a strong moral force.
Mr McNeany: Following on from
our powers in respect of general review and formal investigations
our power to make recommendations based on best practice and issuing
guidance on things we find in our reviews, following up on them
and publicising our findings. Making the recommendations clear
to as many people as possible to ensure that they are acted upon
and followed up with the appropriate individual authority.
Q31 Baroness Prashar: If you look at
the list of priorities in clause 2(3), and I will read them out
to save you looking at it, they are physical and mental health,
protection from harm and neglect, education and training, the
contribution made by them to society, social and economic wellbeing,
do you regard this list of priorities as the right list?
Mr Clarke: I would not consider
it exhaustive. The Bill encourages me and certainly my office
is oriented to hear what children see as the most important issues,
and that list is not exhaustive even from an adult perspective.
I would want also to have a more prominent role given to the Commissioner
working on issues that children themselves have identified as
being of great importance and significance.
Q32 Baroness Prashar: Would you all agree
with that?
Professor Marshall: Yes. I found
it strange that we then have a narrow agenda instead of just the
Convention, quite honestly. The Convention has all of these things
in it so why are we picking things out that were significant in
a particular report? This is meant to be a more enduring piece
of legislation and I would rather have a broader agenda.
Q33 Baroness Prashar: It inhibits flexibility?
Professor Marshall: Yes.
Q34 Baroness Prashar: Would you agree
with that too?
Mr McNeany: I would indeed.
Q35 Baroness Prashar: My next question
is on the interpretation of the phrase in clause 2(5) of the Bill,
which is "children who do not have other adequate means by
which they can make their views known". I think a similar
phrase appears in the Scottish legislation. Which group does it
particularly include and exclude in your view?
Mr Clarke: Some are specified
in the regulations accompanying my Act. I tend to talk about groups
of children who we adults find it hard to reach, putting a responsibility
with us rather than the children. The groups that we keep under
constant awareness, and I meet regularly with, are children from
black and ethnic minority communities, children in care, increasingly
children from refugee and asylum seeking families, young carers.
There is a whole raft of them and we add to them as we think fit.
Any group we think we are going to find it difficult to communicate
with we try and make special efforts so to do.
Professor Marshall: It is the
same for me. I am looking, for example, at the socially excluded.
I want to work with detached youth workers to find out how we
can engage the youngsters who are socially excluded. Children
with special needs obviously have to engage with people working
with them to work that out; children who are detained for whatever
reason. For example, we have children in Scotland who are detained
in the Dungavel removal centre which is not subject to the regulation
of the Scottish Care Commission. How do you find out what their
views are? If they cannot come to me I feel I have to be able
to go to them. For very young children as well it would be primarily
through their parents and through nurseries and other people who
are working with them. There is a whole raft there, but I certainly
intend to do a lot of going around and listening to people and
I am sure a lot more will come up that I will have to take account
of.
Mr Clarke: We have a rule that
if we cannot get to speak to the child for any reason we go to
the nearest available adult who has their best interests at heart
in our judgment.
Q36 Lord Judd: The legislation talks
about the involvement of children in the whole process. What has
been important in the involvement of children in the setting up
of the work that you are doing?
Mr Clarke: In my own appointment
I think it was helpful that I was appointed with panels of children
directly and meaningfully involved. I get up on a foggy Monday
morning in Wales at least empowered by the knowledge that this
particular group of children wanted me and I think that is really
important. All my 24 staff have been appointed by similar means
with young people directly involved in the appointment panels.
Q37 Lord Judd: There are some people
who feel that in the presentation of legislation there is too
much emphasis on children and not enough on young people as well.
You keep speaking, all of you, about children and young people.
Do you think there is a point here that needs to be emphasised,
because it comes up in various contexts?
Mr Clarke: Are we thoughtful about
how we approach people—
Q38 Lord Judd: I should declare an interest.
I am National President of the YMCA in England and there is a
good deal of discussion in YMCA circles, for example, about the
fact that we are talking all the time about the Children Bill
but this by implication seems to downgrade young people.
Mr Clarke: I suffer from the title
Children's Commissioner and the "Children" bit is sometimes
problematic and the "Commissioner" bit often causes
knitted eyebrows among young people and children. I find myself
using "children and young people" as a matter of course
now but in our work we try and differentiate between age groups
and interact in a language and a medium that is going to be most
effective to that particular group we are going to. You have quite
thrown me from what I was in full flight about, which is probably
just as well.
Q39 Lord Judd: It is the involvement
in the process.
Mr Clarke: Again, I am briefly
picking an example because these are helpful. We did a review
of the 22 local authority social services departments, and we
then picked at random some of those authorities and talked to
groups of children in the care of those local authorities and,
as you can imagine, we got a very different perspective from their
viewpoint about these very same systems which was very informative
and helpful for us when we came to frame our recommendations.
We are trying to immerse our office in and with young people.
We have three posts within our budget for 16-21-ish year olds
who will be on fixed term appointments so that we will have young
people in the heart of our office. I think it is the biggest single
challenge of our office, the extent to which we communicate properly
with children and involve them in our office. That is something
I have not made nearly as much progress on yet as I would like.
Professor Marshall: I too have
"young people" in the title of my job but people keep
on shortening it to "Children's Commissioner", apart
from anything else because "children" goes with "champion"
and I have yet to find something that starts with YP to be an
alternative. People keep talking about children's champion, Children's
Commissioner, and for the very reasons you have mentioned I keep
trying to focus on what the original title is. Children were involved
in my selection as well. I was interviewed by two groups, a group
of primary school children and a group of secondary school young
people and they gave a report to the MSPs who gave me the formal
interview. I certainly plan as well to have young people as part
of my staff. I was thinking of having gap year young people in
two posts out of my 15 posts that I have available. I also have
to draw up a strategy for involving children and young people
in the work of the Commissioner and I have to report on that strategy
in my annual report. I find that quite helpful because that gives
me a very clear focus but I cannot just do little bits here and
there. I have to have a proper strategy for involving them and
that also has to include those hard-to-reach children and young
people, so that is going to be a priority for me, having a very
clear strategy in mind for involving children and young people.
Mr McNeany: We have already set
up an advisory panel to ensure that young people are actively
involved in all aspects of our work. One of the first key tasks
the Commissioner, Nigel Williams, undertook was spending a long
time speaking to children in Northern Ireland. They were involved
in his appointment and then the appointment of the senior team.
Like Peter, we are considering the appointment of three posts
within the organisation which will be specifically targeted at
younger people. Also our participation staff, who are going to
be locality based will have as their focus participation work
directly with young people. We have also commissioned a piece
of research from Queen's University Belfast to establish a benchmark
on the UNCRC in Northern Ireland and that is heavily involving
young people in that process. Right throughout our activities
we are involving young people in our work.
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