Examination of Witnesses (Questions 60-70)
20 APRIL 2004
MR PETER
CLARKE, PROFESSOR
KATHLEEN MARSHALL
AND MR
BARNEY MCNEANY
Q60 Professor Marshall: I think sometimes
there are some economies of scale, but in the difference in the
way in which the commissioners operate it is quite difficult to
do a sheer equivalent. I found that when I was involved in the
beginning of the Scottish Child Law Centre and I tried to compare
our figures with the Children's Legal Centre in England. I found
that they had advantages in some things and I had advantages in
others. So it was not just a simple arithmetical thing. I think
taking that basis as a starting point and setting the parameters
would be a good starting point, but you have to look at the way
the commissioner is going to have to work, and what they are going
to be doing within that; it is not just an arithmetical calculation.
Mr McNeany: I would think that
a simple arithmetical calculation would not be the way to do it.
The extent of powers is going to have an impact on the staffing
and also what the commissioner does. So I think that would be
a very important factor to be taken into consideration.
Q61 Chairman: Thank you. In Wales, in
particular, what restrictions do you think have been placed on
you by your budget? Is there anything in particular you think:
"This is something really important that I would have liked
to have done but cannot because there is not the money for it."?
Mr Clarke: There are two things.
One is something I would have liked to have done earlier. We are
now engaged in a joint research project with Funky Dragon, the
Young People's Assembly, the University of Swansea and Save the
Children Fund, and we are doing random sampling by children of
children in Wales to find out how many of them have even heard
of the children's commissioner and understand what my role and
function is. I would have liked that baseline to have been established
earlier. The other thing which I wanted this year was to expand
our investigations team because we have about 12 quite serious
matters that I would like us to be looking into in more depth
than we are able to. So there are some inhibitions, even in the
budget that we have. Otherwise I cannot complain.
Q62 Mr Woodward: Given that one of you
has established over a couple of years this office and the experience
in relation to the budget and the questions that the Chair was
asking, do you believe that, given that the government created
the position of an England's children's commissioner as a response
to the Climbié inquiry, specifically with a sense of, "This
is how we better protect children", that it is realistic
to think that a budget of around £2.5 million is actually
going to allow the children's commissioner's office in England
to do that job?
Mr Clarke: I do not, no. I do
not think it would. Even making allowance for the different powers,
I do not think so.
Mr McNeany: I do not either.
Professor Marshall: No.
Mr Woodward: So none of you believe it
is going to be possible to do the job. Thank you.
Q63 Chairman: If we may finally turn
to issues relating to devolution. We all know that within Clause
2 of the Bill the functions of the new commissioner are expressed
as extending to "children in the United Kingdom". It
then goes on to restrict these functions by reference to the powers
and functions of the three of your office holders. Do you accept,
as a preliminary point, that the devolution settlements themselves
will make it impossible for you to pursue non-devolved matters
affecting children in your countries, even using all the powers
available to you?
Mr Clarke: Shall I start? I have
already mentioned that non-devolved matters, I have the general
power to make representations to the National Assembly for Wales.
My understanding is that those people, when my Bill was first
being sought—I call it my bill, I know it is not mine, but
it is for seven years—was going through parliament, they
took quite senior legal advice that there was no good reason in
law why the commissioners in each part of the UK should not have
their full powers over all matters, including non-devolved matters.
There were no legal reasons why that should not happen. Taking
the child's perspective it seems to me that that is by far the
simplest system because the child wants to know they go to the
Wales commissioner for Wales if they are in Wales, and Northern
Ireland and Scotland accordingly. Therefore, I am still somewhat
perplexed that that option has not been more vigorously pursued.
I am even more perplexed by the option that has been gone for,
which is the English commissioner having a UK-wide remit in these
non-devolved areas. As I said earlier, I think it will cause an
objective overlap between that general power I have and the English
commissioner. It causes confusion in the minds of adults, let
alone children and young people, and I simply do not understand
why that model has been adopted. I understand that the argument
is put forward about consistency, but for me the only consistency
that matters is the consistency in the mind of the child, rather
than any department or any particular initiative or even any particular
Bill. So that is my answer.
Professor Marshall: My basic function
is to promote and safeguard the rights of children and young people
in Scotland, so it is very much focused on the children and young
people rather than whether matters are devolved or reserved to
the Westminster parliament. So the only specific restriction with
regard to these reserved matters is the formal investigation function,
but there are areas in which that could become important. My priority
really is to make sure that all areas of the lives of children
are subject to appropriate scrutiny, for that is something that
should happen, that we should be able to investigate all areas
of the lives of children. So I would not start off from being
precious about something that I have to do, that is not my motivation
about doing it. If it were finally decided that it would have
to be someone with powers over the UK over reserved matters, I
would rather they had strong powers to do it than no one had powers
at all. My preference, like Peter's, would be to have it child
focused and to say that this responsibility for the rights and
the lives of these children is the centre of attention and is
the centre of the responsibilities that we have, so that we do
not have to start dividing up children into bundles of separable
issues because children do not understand that, and it is not
actually the way life works anyway—everything impacts on
everything else. So my preferred option as well would be that
each commissioner was able to have a full range of powers in respect
of the children within their jurisdiction. Failing that, I would
certainly want to see that there is no area of children's lives
that is going to be kept away from appropriate scrutiny.
Mr McNeany: I think we need to
take a holistic view of the needs of children and young people
and not just follow structures, and on the basis of that I think
it would be important that I would support what Peter and Kathleen
are saying in terms of the workability of what is proposed.
Q64 Chairman: There is a requirement
in the Bill of course for the new commissioner to take account
of your views. Why would that not meet your needs?
Mr Clarke: I am not so concerned
about my needs in a sense, except in so far as they are the needs
of the children. I am also not convinced what that means, to be
honest; I am not convinced what "take account of" does
mean. I would be concerned too in Wales. We operate in a bi-lingual
environment too and I am not sure how it is proposed that the
English commissioner in their UK remit is going to deal with that
matter. So I do not think it does meet the need. It also seems
to me anyway to be a sticking plaster over a gaping wound because
I think the fundamental concept is flawed.
Professor Marshall: Again, I think
it is one of these things that will depend partly on how it actually
operates. It is taking account of my views as commissioner, but
the question then is can I go and take account of all the views
of the children in Scotland who have someone remote, who they
are not normally otherwise associated with, who is going to be
taking care of this part of their lives? I think if this process
is set up, this structure is set up then obviously there has to
be a requirement to take account of views, but it will be very
much a second best option.
Mr McNeany: I may be confused
by it but I think the duty specifically excludes formal investigations
requested by the Secretary of State, which again I think is going
to be very confusing in terms of how that is actually going to
be worked, to take account of views in one respect and not on
another. I think it is very confusing.
Q65 Chairman: Peter, do you in particular
have any examples of the way in which the devolution settlement
has frustrated or hampered your work?
Mr Clarke: I think I have already
mentioned the police report that I would have liked sight of.
I have also had cases where individual children have moved in
and out of the criminal justice system and it is very hard to
explain to them that I can be robustly their champion in some
areas, but much less so once they are in a juvenile justice environment.
That comes up in conversations with children, which I do often.
Children range across their lives and they do not really take
note of the boundaries that we divide things up by. So, as I say,
I will be having conversations with young people about school
meals one minute and then it will go into maybe even the benefits
system, which is another area of life that has not devolved. I
will not over blow it, but it does have an inhibiting effect.
In greater degree the more investigative I am becoming really.
Q66 Lord Lester of Herne Hill: I would
like you, if you would, to tell me what you think would be the
best model that fits in with devolution and ensures that there
are no gaps in protection—what you call the holistic view.
Are you saying that there should be four commissioners, one for
each part of the United Kingdom, all of them acting within their
own spheres but working together in cooperation across frontiers,
as it were, and without the complexity of what is devolved and
what is not devolved, except where you are having to keep within
the Scotland and Wales and Northern Ireland legislation? Is that
what you would prefer rather than what I understand to be the
position, which is a UK commissioner who is not really a UK commissioner
in respect of devolved and reserved matters? Or have I misunderstood
your evidence completely? It is quite important to see what the
three of you think would best fit devolution and also UK needs
in terms of children.
Professor Marshall: I think it
is a question of whether you fit the children into devolution
or whether you fit the government structures to meet the needs
of children, which is very much at the heart of what we are doing.
Whereas it may sound a bit messy to have commissioners who have
responsibilities that relate to different parliaments or Assemblies,
that means we are actually placing the potential for confusion
in the minds of the legislators and the civil servants as a higher
priority than the potential confusion in the minds of children
and the public at large. The question is: is that the right way
round to do it? The words "child-centred" have become
very much to the fore in recent years, and I think having the
commissioners is one of these other giant steps in getting a child-centred
approach to things, and the question is whether having this kind
of split is something that works against a fully child-centred
approach that respects the integrity of children.
Q67 Lord Lester of Herne Hill: Having
answered that question, what do you think is the best solution?
Professor Marshall: I think the
best solution is to have a commissioner in each of the jurisdictions
who has the full range of powers to investigate anything about
the lives of children within their jurisdiction, and obviously
there would be need for cooperation in some matters. Whereas one
of the objections to that is consistency on UK-wide matters, at
the moment we are so inconsistent in our powers and everything
anyway that we are not going to have that kind of consistency;
it is not going to be an easy fit that is going to be remedied
by having the UK commissioner having powers to deal with the reserved
matters, because the interface with each of us is going to be
very different and very confusing.
Mr Clarke: I very much liked the
model that you so eloquently outlined at the beginning, and I
think we should be more concerned with coherence than consistency
in the sense of everything being identical, and particularly coherence
from a child and young person's perspective. Therefore, yes, I
think we should have similar powers, basic powers, and that a
Welsh child goes to the Welsh commissioner and so on and so forth.
I see no real impediment to it happening, either. The complexity
would be left with us to work out rather than with the children.
Mr McNeany: I agree.
Q68 Mr Woodward: Mindful of the power
that Northern Ireland enjoys and that this power is only in a
qualified way enjoyed by the commissioner for children in Scotland
and Wales, I am very much mindful of the England children's commissioner
being born out of the Victoria Climbié inquiry. How significant
and important is it that the England children's commissioner,
and those of you who do not enjoy this power, do not have the
power to review adequacy and the effectiveness of services to
children by relevant authorities?
Professor Marshall: It is service
providers. Mine, it is public, private or voluntary bodies or
individuals; it is a very wide investigatory power, as it includes
commercial institutions as well. I have to promote best practice
by them, and I can inquire.
Q69 Mr Woodward: The England children's
commissioner is not going to be given this power, as I understand
it? Is that significant for the better protection of children?
Mr McNeany: Yes, it is.
Mr Clarke: Yes. We too have that
power. In fact those are the services that are likely to
be—
Q70 Mr Woodward: You see what I am driving
at, which is the creation of an England's children's commissioner
that does not effectively have the power to look at local authorities
effectively and the way that they actually administer their services
to children. Bearing in mind the background to the Victoria Climbié
inquiry, and given that the government's rightful motive to create
England's commissioner to deal with the problem of the Victoria
Climbie« incident, do you think the England children's commissioner,
based on your experience, is going to be able to do their job
in relation to, say, a future Victoria Climbie«?
Professor Marshall: We just have
to say no, I think.
Chairman: I would like to thank all three
of you for coming, Mr. Clarke, Professor Marshall and Mr. McNeany,
for giving evidence to us today. Very timely in view of the fact
that this Bill is going through parliament and of our longstanding
interest arising initially from our inquiry into the United Convention
on the Rights of the Child. Thank you very much for coming here
today to help us to look at the structure, functions and powers
of the new children's commissioner for England, UK or otherwise.
| 
