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Lord Freeman: My Lords, Haringey is a Labour seat.
Lord McIntosh of Haringey: My Lords, this is not a grand amendment but an amendment which must be dealt with entirely on practical grounds, and I suggest that noble Lords should not accept it.
I deal briefly with Amendment No. 8. That amendment would make it mandatory for the courts to take into account whether the enforcement officer had complied with any code of practice issued in accordance with the Bill before deciding how to deal with the regulatory breach. It may be that there is no accusation that the enforcer has failed to comply with the code but the court will still be required to establish it. Under the Bill as drafted the court is not automatically required to consider any failure to comply with the code; it has discretion to do so. Surely, that is the right way round. If the court believed for some reason that it needed to establish whether the enforcement officer had complied with the code it would be free to do so, but it would not be required to do so as a matter of course. I believe that the "shall" instead of "may" is in the wrong place in the Bill, but if it is placed in the right position it has no useful effect whatever.
Baroness Buscombe: My Lords, I thank the Minister for his response. To answer the last point, we are content that "shall" versus "may" is in the right place in the Bill. All this afternoon we have tried in both short and long speeches to convey to noble Lords opposite that there is a wealth of difference between ministerial assurances and what is on the face of the Bill. The noble Lord, Lord Borrie, may regard this as a little debate, but it addresses a very serious issue which directly affects the interests of small businessmen. In relation to these amendments, we on this side of the House are more interested in rights than rules. We wholly disagree with the response of the Minister to points that we believe have been made with great strength. On that basis we should like to test the opinion of the House.
5.28 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 154.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Boardman, L.
Bowness, L.
Brougham and Vaux, L.
Burnham, L. [Teller]
Buscombe, B.
Caithness, E.
Campbell of Croy, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Cox, B.
Craigavon, V.
Crickhowell, L.
Dean of Harptree, L.
Dixon-Smith, L.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Feldman, L.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Griffiths of Fforestfach, L.
Hanham, B.
Hayhoe, L.
Henley, L. [Teller]
Higgins, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Jenkin of Roding, L.
Kingsland, L.
Kirkham, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
Monson, L.
Montrose, D.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Noakes, B.
Northesk, E.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Renton, L.
Roberts of Conwy, L.
St John of Fawsley, L.
Seccombe, B.
Selborne, E.
Skelmersdale, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Thomas of Gwydir, L.
Trumpington, B.
Vinson, L.
Vivian, L.
Wade of Chorlton, L.
Walker of Worcester, L.
Wilcox, B.
Young, B.
Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bradshaw, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Crawley, B.
Currie of Marylebone, L.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Evans of Parkside, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Richmond, B.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooson, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kirkhill, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Molloy, L.
Morgan, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Rennard, L.
Rodgers of Quarry Bank, L.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Serota, B.
Sharp of Guildford, B.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
[*The Tellers for the Not-Contents reported 154 votes. The Clerks recorded 153 names.]
Resolved in the negative, and amendment disagreed to accordingly.
5.39 p.m.
Lord Falconer of Thoroton: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.--(Lord Falconer of Thoroton.)
On Question, Bill passed, and sent to the Commons.
Children's Commissioner for Wales Bill
5.40 p.m.
The Attorney-General (Lord Williams of Mostyn) : My Lords, I beg to move that this Bill be now read a second time. We can fairly describe this as an historic moment. Before I come to the Bill itself and commend it to the House, I wish to make two points. First, we owe an enormous debt to the inquiry carried out by Sir Ronald Waterhouse. I have been re-reading the inquiry's report recently in preparation for the Bill. The more one returns to it, the more grateful one is to the tribunal and particularly to Sir Ronald. The report is a continuing contribution in a long life of public service in Wales and outside. There are many of us present who have been friends and colleagues of Sir Ronald for many years. I know that that tribute will resound throughout the House. Secondly, the Bill is a constitutional milestone because it is the first piece of legislation specific to Wales brought forward in your Lordships' House at the particular request of the National Assembly for Wales.
One of the first priorities of the Assembly's Health and Social Services Committee was the development of policy on the Children's Commissioner for Wales. There had been calls for a commissioner from bodies such as Children in Wales, the Welsh Local Government Association and the Welsh Affairs Committee of another place, and in evidence to the Waterhouse tribunal. The report that was eventually produced by the Assembly recommended that the commissioner should ensure that children's rights are respected through monitoring and oversight of the operation of complaints and whistle-blowing procedures, and arrangements for children's advocacy; examine handling of individual cases brought to the commissioner's attention, including making representations of the merits, when the commissioner considers it necessary and appropriate to do so; and publish reports, including an annual report to the Assembly.
As the House will know, the National Assembly announced in December last year the appointment of Mr Peter Clarke, the former director of Childline Cymru, as the first children's commissioner for Wales. He will take up his post in a few days' time, appropriately on 1st March, just over a year after the publication of Sir Ronald's report.
We were always aware of the Assembly's aspiration for a children's commissioner who would be a champion of children in Wales, would promote their rights, raise the profile of children's issues and take an overview of policies and procedures across services affecting them. I referred to the Assembly's report. The Bill is the response to that vision.
The commissioner is given a principal aim in Clause 2--to exercise all of his functions with the aim of safeguarding and promoting the rights and welfare of children in Wales. That is the essence of his role; a champion of children's rights with a wide-ranging remit. The width of that remit is seen in later clauses of the Bill. It gives the power to the commissioner to
review the effect on children in Wales of the exercise of functions by the Assembly and other public bodies for which it has responsibility, such as local authorities, health authorities and named Assembly-sponsored public bodies.Public bodies are not simply those obviously connected with children, but include many diverse organisations which may affect children, such as the Welsh Development Agency, the Sports Council for Wales and the National Museums and Galleries of Wales. The Assembly clearly believes that it should be subject to the same scrutiny. All of its activities, including the making of subordinate legislation, will be open to the commissioner's scrutiny. Perhaps I may make two points in that respect. First, it is the mark of a confident Assembly that subjects itself to that scrutiny. Secondly, the commissioner himself will have very wide powers indeed.
The Care Standards Act, which I appreciate is recent legislation, already gives the commissioner power to examine cases of particular children and to assist in particular cases. The Bill extends those powers. The precise application will depend, quite rightly, on regulations to be made by the Assembly, but it could apply to a very wide range of bodies. The Bill will extend the range of the commissioner's power to review and monitor arrangements for complaints procedures, whistle-blowing and advocacy. That will cover local authorities, the National Health Service, schools and other education establishments, and training organisations.
In support of those functions, Assembly regulations will be able to empower the commissioner to require bodies to provide information to him if they are involved in the investigation of individual cases or if their arrangements for complaints, whistle-blowing and advocacy are being monitored. That power is backed by legal sanctions.
Even on this brief explanation I hope your Lordships will have seen that these proposals go beyond the recommendations of the Waterhouse report, which have already been implemented. No one can forget the lessons of the Waterhouse report. Accordingly, perhaps it is inevitable that there has been a good deal of focus in respect of the role of the commissioner with regard to children looked after by local authorities. That is a key role. However, I should make it plain that the Assembly does not envisage the commissioner taking the place of the existing statutory child protection agencies or the regulatory and inspection role of the planned care standards inspectorate for Wales. Nor is it the intention that the commissioner should seek to take the place of existing systems or routinely investigate cases directly.
The Assembly report made it plain that the commissioner was expected to undertake formal investigations only when a matter of principle is at stake. We see the commissioner's role in respect of child protection systems as being essentially a strategic role of ensuring that systems are in place and working effectively. He will need to co-operate with a wide range of bodies. He already has the powers to do that.
He therefore has a roving brief to consider the effects on children and young people of the activities and policies of a wide range of public bodies. He will be able to raise the profile of children's issues and to build up what has been lacking in the past; namely, a co-ordinated view of how public bodies, directly or indirectly, affect children in their daily lives.I have indicated that the Bill is a milestone. It is a sign that the devolution process is alive and functioning vigorously. The Assembly has a wide range of responsibilities. The majority of services that impact on children will therefore be within the commissioner's formal responsibility. Even if some issues are outside the statutory remit, he does not have to stay silent. If during the course of his work he receives representations about non-devolved matters, he can bring them to the attention of relevant government departments and in so doing can indicate his views. He can also bring to the Assembly's attention complaints and information he receives about non-devolved matters. He can do that, of course, through the annual report to the Assembly. The Assembly itself can establish a framework for that through regulations in the light of matters raised by the commissioner, and the Assembly itself may wish to consider matters and make representations to the Government at Westminster.
This is, in text, quite a short Bill. It is a very significant step forward. I repeat our gratitude to Sir Ronald and underline that it is entirely fitting that this first measure brought before the House at the request of the National Assembly for Wales is one aimed at tackling the needs of children and young persons in such a radical way. For those reasons, I commend the Bill to the House.
Moved, That the Bill be now read a second time.--(Lord Williams of Mostyn.)
5.49 p.m.
Lord Roberts of Conwy: My Lords, we are all grateful to the noble and learned Lord the Attorney-General for his clear exposition of this short but historic Bill, the first piece of primary legislation requested of this Parliament by the National Assembly for Wales. I am happy to join in the general welcome being given to the Bill. The fact that it has enjoyed an easy and unimpeded passage through another place is promising and gives grounds for hope that future requests from the Assembly for other pieces of legislation will be equally acceptable, at least in principle.
To my mind, there were two inspirational mainsprings for the proposal to establish a children's commissioner for Wales, neither of which is mentioned on the face of the Bill. The first was the wide-ranging United Nations Convention on the Rights of the Child, adopted in 1989 and ratified by John Major's government in 1991. A number of European and Commonwealth countries have subsequently established children's commissioners or ombudsmen. Others, notably Denmark, Sweden and South Australia had made special arrangements before the convention was adopted.
The Care Standards Act, passed during the last Session, established the first children's rights director within the commission in England, which I understand will come into existence in April 2002, as well as the post of an independent commissioner in Wales, whose scope and functions are to be extended under the Bill before us. The Bill goes some way, but not all the way, to meeting the aspirations of the Health and Social Services Committee of the National Assembly for Wales. It consulted widely on this matter and it is to be commended on its report.
However, there is no doubt in my mind, and here I fully agree with the noble and learned Lord, that the strongest impetus to establishing the office of children's commissioner in Wales was the direct recommendation to that effect made by Sir Ronald Waterhouse in his encyclopaedic report on his inquiry into child abuse in north Wales. That inquiry was established by my right honourable friend William Hague when he was Secretary of State. The gross abuse of young people detailed in Lost in Care shocked the nation and aroused a determination that everything should be done to ensure that such systemic mistreatment of young people should never be allowed to happen again.
Sir William Utting argued for a similar independent commissioner's office in a foreword to Peter Newell's 1991 report, Taking Children Seriously: A Proposal for a Children's Rights Commissioner. Mr Newell listed more than 100 organisations dealing with children as supportive of the idea. To that end, some distinguished organisations have combined to form the Children in Wales Commissioner Campaign Group. The group welcomes the Bill, but feels that it does not quite match up to the vision of the National Assembly and that the Welsh commissioner's office falls short of international standards. I am bound to say that the group is to be complimented on its tenacity.
It is as well to remind ourselves at this point that child abuse is not confined to Wales. According to the Independent newspaper of 8th January, no fewer than 67 police inquiries are either continuing or have been recently completed, involving 32 of the 44 police forces in England, Wales and Northern Ireland. Their locations range from Greater Manchester to Devon and Cornwall and involve 400 homes and schools, with at least 2,000 possible victims and some 415 suspects. Those figures give noble Lords some idea of the extent of suspected abuse of children.
Other material gleaned by the Independent and recent court cases, such as that which revealed the terrible and tragic fate of little Anna Climbie, suggest that further profound shocks may be in store for the public, which could well result in a demand that still more should be done to safeguard vulnerable children against physical and sexual abuse. Indeed, paedophile rings operating on the Internet are also causing deep concern.
It is not surprising that some, including Philip Hammond, the Conservative spokesman on the Care Standards Bill in another place, are asking why there
is not an independent children's commissioner for England and there is for Wales. After all, this was a recommendation of the Health Select Committee in another place. I shall be surprised if the English dimension does not feature in this debate.One of the key questions that has to be asked about the Bill before us is whether it goes far enough to prevent child abuse in Wales. It is clear that the commissioner's scope for reviewing and monitoring arrangements for safeguarding children directly provided with services by statutory bodies is to be considerably extended in terms of the authorities covered. We welcome that. As the noble and learned Lord pointed out, the National Assembly itself, along with its subsidiary bodies, is to be brought into the commissioner's frame. He will have the power to consider and comment on the possible effects on children of any existing or proposed Assembly legislation or the exercise of any other function by the Assembly or its related bodies operating in devolved areas. Could this power extend to primary legislation, such as the Bill before us? On my reading, it would not.
The inclusion of further and higher educational institutions and young people up to the age of 18 and occasionally older has raised the issue of whether the title of "children's commissioner" is adequate. Perhaps the words "young people" or "persons" should be added to it.
Although the scope and powers of the commissioner have been enlarged, they are confined to the areas of government that have been transferred to the National Assembly under the Government of Wales Act. There are of course non-devolved areas, some of which are controlled by the Home Office, where children and young people are provided for. The commissioner's writ does not run to these areas and whatever reassurances are given by Ministers, undoubtedly there is a loophole here which the Bill's critics have properly highlighted. It is not easy to understand why the Welsh Language Act, for example, covers all public authorities operating in Wales.
There is also some uncertainty about the commissioner's role in relation to Welsh children cared for across the border in England, and English children cared for in Wales. It is hoped that we shall be able to deal with these and other matters in Committee.
While we are concerned about the extension of the scope and powers of the commissioner, we are concerned also about their depth and effectiveness in rooting out and preventing abuse. I recognise that this is a difficult area to deal with. Much is made of the point that children should be listened to, and I am sure that that is right in these circumstances. The first children's commissioner appointed in Wales, Peter Clarke, as a director of Childline, is very experienced in listening to children. But abused children are reluctant to talk. They are far more likely to be ashamed, cowed, fearful and silent. That is the ugly reality that haunts the pages of the Waterhouse report.
When abuse is suspected and reported to the police, a curtain of silence then inevitably descends while the police carry out their inquiries, which may continue
for months or even years. Worse than the silence that accompanies suspicion of abuse is the paralysis that grips those in authority and everyone else who may be at fault in some way. I am not certain that this Bill has truly got to grips with those problems.The commissioner cannot comment on matters that are sub judice or cases decided by a court or tribunal. This may make sound legal sense, but coupled with the limitations placed on his investigative and access powers, it leaves ominous gaps in the commissioner's role as children's champion.
The prevention of abuse is far better than cure and the Bill is right to emphasise the commissioner's role in reviewing and monitoring arrangements that involve the welfare of children and highlighting the effect of failure to make such arrangements. However, there is an argument for giving the commissioner stronger investigative and access powers in the event of need. Otherwise, the commissioner may become a remote, tangential and almost powerless figure if a crisis occurs. Furthermore, it is difficult to see how he can carry on his job of monitoring effectively if he cannot check things on the ground.
Of course, the principal aim of the commissioner, as defined in Clause 2 and spelt out in detail elsewhere, extends beyond the prevention of abuse into the positive promotion of the rights and welfare of children. Some may feel a little uncomfortable with the possible implications here. There is the threat of an overweening bureaucracy, thrusting confusedly in all kinds of directions and interfering unnecessarily in all kinds of areas, including normal family life and normal child-parent relationships. Some of us still remember the Orkney children scandal of 1991 when nine children, aged eight to 15, were taken from their beds by police and social workers. Before that, there was the Cleveland fiasco which arose from what I can best describe as an excess of paediatric zeal. I hope, as did Sir William Utting, that,
- "the rights of children and the rights and responsibilities of parents prove mutually supportive".
In welcoming the Bill, the NSPCC summed up its criticism with enviable clarity and precision. It said:
- "The Government should strengthen the legislation to allow the Commissioner to comment on non-devolved matters, cross border services and court and tribunal decisions as well as give powers to the Commissioner to enter institutions which contain children and adults. This would assist the Commissioner to put children's interests first. As a matter of urgency, the Government must establish a watchdog and champion for all the UK's children by introducing Commissioners in England, Scotland and Northern Ireland.
I am sure that we are all agreed that children's rights and welfare are all-important and that this measure, imperfect as it is in some ways, will assist the commissioner in Wales to safeguard and promote those rights. The Opposition will therefore give the Bill a fair wind and do what we can to help it to reach a safe
haven in the statute book before the tempest of the election blows prospective legislation to the four winds.6.2 p.m.
Lord Thomas of Gresford: My Lords, in introducing the Bill, the noble and learned Lord the Attorney-General said that this was an historic moment. Indeed it is. No one who was with us during the passage of the Government of Wales Bill will doubt my own commitment to devolution over 40 years and my desire to see the Welsh Assembly and everything that it stands for succeed. I have to welcome this very first piece of primary legislation that relates to Wales.
However, I also have to admit to a measure of disappointment about the Bill. I had hoped that, unless there was a very good reason, the reservation of primary legislative power to Westminster would not prevent the informed will of the Assembly from prevailing. When people have asked me what is the point of the National Assembly, as people tend to in Wales, I say, "In policy formation you have the most considered and informed group of people who are investigating the issues and coming to conclusions".
Indeed, in this case, the Health and Social Services Committee investigated this issue with great thoroughness. It had 94 responses to its inquiries and it received oral evidence from many organisations such as the NSPCC, Barnado's and others. It came to the firm conclusion that the committee,
- "fully endorses the key principles of the rights of children as defined in the United Nations Convention on the Rights of the Child".
- "The UN Convention informed the overarching context in which we approached this task; which is our commitment to the rights of all children and young people to be treated as valued members of the community whose potential must be fully developed through appropriate policies and services and the meaningful representation of their interests".
- "We want the Commissioner to ensure that children and young people are listened to and enabled to play an active part in determining the services and opportunities offered to them; that their needs and views are taken into account across the range of policy-making, planning processes, and provision for all relevant services".
This theme of the committee was taken up in the debate which subsequently followed on 7th June last year on the floor of the National Assembly. Jane Hutt is the Assembly's Health and Social Services Secretary concerned with this matter. Bearing in mind that she is of the Labour Party, of the Labour Government, she said:
- "We turn to the UN Convention on the Rights of the Child as a starting point because it has been instrumental in the past decade in helping to set up an accepted international framework for the treatment of all children. The aim has been to advance an international commitment to protecting children's rights, to raise the profile of children and to foster a competent and positive image of children as pro-active holders and users of rights of citizens of the world".
Those were very embracing words put forward by the Assembly's Health and Social Services Secretary. They took into account not only a part of a child's life
and of the matters that affect children but the child as a whole. We were looking--indeed, amendments were tabled in the National Assembly to make this absolutely clear from these Benches--for a children's commissioner for Wales who would not be concerned with only a part of a child's life but with the whole of a child's life; who would represent all the human rights to which a child is entitled.This Bill, as it has been sent here from another place, is, in my view, a pale shadow of the Assembly's wishes. It is limited in its extent. It is limited to deal only with those parts of the rights of a child as are covered by what has been called the "devolution settlement", the functions that have been devolved to the National Assembly.
When we were debating and considering those functions which should be devolved to the National Assembly, no one had it in mind for a single moment that we were in any way limiting the way in which the children of Wales should be considered. Attempts that were made in Committee in another place to promote compliance with the United Nations convention were not accepted by the Government; attempts that were made to widen the ambit to include all the problems that a child faces were rejected in Committee in another place, and we have here a limited Bill.
Reference has been made to Sir Ronald Waterhouse and to his excellent report. I too add my commendations on the work he carried out. Those of us who have known him for so long realise that he has fulfilled all his potential in doing what he could in respect of the problems that he was asked to consider.
Those problems affected institutions in my own area, in Wrexham and its surrounding area. I know the institutions intimately. It seems to me so curious that the children's commissioner for Wales under this Bill would not have had the right to enter those institutions had he wanted to do so. Why the right to enter care institutions such as Bryn Estyn, where the worst of the abuse took place, has been denied to the commissioner is a matter I should like the Government to explain.
The results of limiting the ambit of the children's commissioner simply to the functions which come under the National Assembly for Wales are widespread. The effect on children of any social security measures may not be reviewed by the commissioner. We heard at the weekend, at some conference which was held involving the Labour Government, that child poverty was to be at the forefront of their campaign at the next election--and yet child poverty in Wales, in so far as it is affected by the social security system, would be outside the ambit of the children's commissioner. The effect of the Child Support Agency could not be challenged. Complaints or representations made in individual cases involving social security could not be considered.
But that is social security. When it comes to the Home Office area of responsibility for functions which have not been devolved, the problem is stark. The children's commissioner could not carry out a report on the youth justice system--on, for example, the effects of curfews
on children and on the effects of the probation services. Youth offender institutions could not be looked at. Nothing concerning the rehabilitation of young offenders would come within the commissioner's purview. Bullying would presumably be regarded as a police matter, and would come under the Home Office.Assurances that the commissioner would not be gagged and that he could make some kind of informal report are not enough. The whole point of the Care Standards Act, which this Act amends, is that it gives powers under subsections (3) and (4) of Section 74 to require persons to provide information, explanations and other assistance and to exercise a coercive power similar to that of the High Court to require the attendance of witnesses and to call for papers. How the commissioner can expect to produce a report on social security or home affairs issues when he has no powers to investigate in the way that he ought to be able to is beyond me.
Further, as the noble Lord, Lord Roberts of Conwy, pointed out, there can be no investigation by the commissioner into the decisions of courts or tribunals. One matter that is currently in the news, for example, is the level of criminal injuries compensation payments. There is a promise that the matter will be reviewed by the Home Secretary before the next election. I shall have a great deal to say about it in due course. The children's commissioner for Wales would not be able to comment on the level of compensation given to child victims of the kind of attack that took place in the Midlands not so long ago.
Under the Bill as drafted, the commissioner's powers are limited to reviewing what goes on within the areas of his responsibility in any event. So the commissioner cannot propose measures for primary legislation. Indeed, children who are ordinarily resident in Wales are outside his purview.
What is the justification for this? It is said that to do otherwise would offend the devolution settlement. The Minister in another place, Mr Hanson, said in Committee that the,
- "underlying principle is that the commissioner is the creation of the National Assembly, with Government support, and of the legislation that we have enabled the Assembly to enact. It is therefore right and proper that the commissioner's functions should coincide with the Assembly's areas of responsibility".--[Official Report, Commons, Standing Committee F, 30/1/01; col. 112.]
That is not good enough; it is not an answer. Although the National Assembly for Wales may appoint the commissioner and pay for and receive reports from him, the commissioner is a creature of Westminster. It is primary legislation that is being passed; nothing can prevent the Houses of Parliament giving such powers as they think appropriate and fit to a person in that position. So it is no answer to say that the commissioner is appointed and paid for by the Assembly. He is a creature of Westminster and can be given just such powers as we choose to give him.
The matter can be looked at in another way. The Assembly has power, under Section 33 of the Government of Wales Act, to,
- "consider, and make appropriate representations about any matter affecting Wales".
We shall examine the Bill with some care. I hope that this House will ensure a return to the original concept developed by all parties in the National Assembly for Wales. No particular party can take credit: Labour, Plaid Cymru, Tories and Liberal Democrats were all involved in arriving at an agreed solution. If the retention of primary legislative power in Westminster is to be at all acceptable to the people of Wales, it is surely the duty of Westminster to pass the legislation that the National Assembly for Wales wants.
6.15 p.m.
Lord Prys-Davies: My Lords, I, too, welcome the Government's decision to introduce the Bill. It is a short Bill, with only eight clauses. However, it represents a significant step forward in safeguarding and promoting the rights and welfare of children. It is also an historic Bill: it is the first public Bill to be sponsored by the National Assembly for Wales.
The genesis of an independent children's commissioner is to be found in the United Nations Convention on the Rights of the Child and in the reports published by a number of UK charities in the 1990s--in particular, Taking Children Seriously, published by the Gulbenkian Foundation in 1991, and Childhood Matters, the report of the National Commission into the Prevention of Child Abuse, under the distinguished chairmanship of my noble and learned friend the Attorney-General.
But it was the recommendation of the Waterhouse inquiry into the appalling abuse of children in care in North Wales which brought home the case for moving ahead without delay to appoint a children's commissioner for Wales. One of the very few gains from the accumulation of appalling events disclosed by the Waterhouse tribunal is that it served to arouse the public conscience. The tribunal's report was published on 15th February last year. The office of the children's commissioner for Wales was created by Part V of the Care Standards Act. It is to the immense credit of the Welsh Assembly and the Government that they have, in under 12 months, brought forward this Bill.
I appreciate the encouraging tenor of the opening speech of my noble and learned friend the Attorney-General. He knows as much or more about this subject than any other Member of this House. I appreciate also the positive speech of the noble Lord, Lord Roberts of Conwy, in committing the support of the Official Opposition. I shall turn later to the speech of the noble Lord, Lord Thomas of Gresford.
I trust that I shall not be considered out of order if I say that I shall miss the contribution of my noble friend Lord Cledwyn of Penrhos, to these debates. He
has been a true friend and ally in many a battle. I believe that this is the first occasion in 50 years when, sadly, the voice of my noble friend will not be heard in the course of the parliamentary passage of a Bill which has special significance for Wales.In my approach to the Bill, I am guided by the report of the Health and Social Services Committee of the Welsh Assembly. As we have heard, the committee consulted widely on its own proposals, receiving submissions from 94 organisations and from individuals. The organisations are listed in the report. It is an impressive list. Further, all the representatives of the political parties in the Welsh Assembly strongly support the committee's recommendations. I reiterate the tributes paid to the committee.
I am also guided by the advice that we received from the Children in Wales Commissioner Campaign Group, which is a very important skill group. Among its members are representatives of the leading charities, Barnardo's Cymru, Children in Wales, the Children Society in Wales, NSPCC Cymru and Save the Children, together with representatives of the Royal College of Paediatrics and Child Health (Wales Branch). These bodies have a fine record in safeguarding and promoting the rights and welfare of children. They know very well how services for children in Wales are working. Clearly their views on the Bill cannot be lightly set aside.
The children's campaign group welcomes very much Clauses 3, 4 and 5 as an important step forward. But it must also be said that the group is disappointed by the limitations in the Bill. It regrets that the Government were not persuaded when the Bill was in another place to accept any of the amendments that were intended further to extend the functions and powers of the commissioner. The validity of the explanations given by the Ministers in another place for rejecting the amendments are now being seriously challenged. I understand that my noble and learned friend Lord Williams of Mostyn knows that the campaign group has obtained legal opinion of leading counsel, who has advised that the reasoning is not well conceived. I also understand that my noble and learned friend has been given a copy of that opinion.
The noble Lord, Lord Thomas of Gresford, has already identified the major areas of concern to the commissioner campaign group, and others. The Bill is criticised on three main grounds, which I shall summarise as follows: first, that the policy and performance of the UK government departments providing services for children ordinarily resident in Wales will be outside the commissioner's remit; secondly, that the commissioner will not have power to enter premises; and, thirdly, that the commissioner will be debarred from inquiring and reporting on any matter that has been determined by a court of law.
I should like to elaborate a little on the first criticism. In dealings with government departments, or agencies not operating in devolved areas, it is strongly felt that too much is left to individual departments or agencies to decide for themselves how
they will relate to the commissioner. It was said repeatedly in another place that the commissioner will have to rely on goodwill and informal connections.But what will be the case where the UK government department, or an agency operating in a non-devolved area, is not sympathetic to the commissioner, because it may wish to guard itself against potential criticism, potential embarrassment, or whatever? We are surely right to ask that question, and to envisage the problems that could arise when the commissioner has to rely on goodwill alone. Moreover, the commissioner will be subject to the doctrine of ultra vires--a point that has not been much discussed.
I am sure that the commissioner will do his very best in any dealings with UK Government departments, or with non-devolved agencies. However, there is a fear that he may not be able effectively to undertake tasks that may be expected of him by children and parents when these involve non-devolved agencies, or Whitehall departments. In that event, public confidence in the office of the commissioner could be diminished, not because of what he does for children but because of what he cannot do for children in Wales by virtue of the legislation.
I turn to one further issue. There is nothing in the Bill about the United Nations Convention on the Rights of the Child. But that convention can be said to be at the core of the aspirations for a children's commissioner. I believe that many organisations and individuals had expected the Bill to contain a statement of principle that the commissioner for children in Wales would always act in the spirit of, and by reference to, the UN convention. If there are technical reasons why we cannot go as far as incorporating any of the provisions of the convention in the Bill, I wonder whether the Government could consider the possibility of inserting what is known as a "purpose clause" into the Bill. Such a clause would not impose a legally enforceable duty, but it would express in a simple, short form what is Parliament's intention in enacting the legislation. I wonder whether a purpose clause would fill the lacuna.
I can think of no better augur of the success of the National Assembly than that it should have brought forward proposals for primary legislation to extend the powers of the commissioner. Our Government are committed to making devolution work. That commitment was renewed in the Royal Address delivered in this Chamber on 6th December last.
Under the terms of the Welsh devolution settlement, the objectives of the National Assembly, where they are dependent on the passing of new primary legislation, can only be achieved in partnership with the UK Government and the Houses of Parliament. This Bill provides an opportunity for the Assembly and for Parliament to work in partnership. If that partnership gets the Bill right, that will demonstrate the merits of the Welsh devolution settlement. Is my noble and learned friend in a position to inform the House whether the Assembly is fully satisfied with the terms and the effect of the Bill that is now before us? I have a feeling that the Constitution Committee of your
Lordships' House may wish to examine carefully as time goes by how well Sections 31 and 33 of the Government of Wales Act 1998, and the Protocol with the Secretary of State for Wales, are working in the interests of Wales and of the Parliament of the United Kingdom.If new primary legislation fails to meet the legitimate needs of the Welsh National Assembly that will generate disaffection and demand for reform of the devolution settlement; and that could lead to instability and all the consequences of instability. Unless we are assured that the Assembly is broadly satisfied with the Bill as it stands, it would be greatly appreciated if my noble and learned friend the Attorney-General could persuade his ministerial colleagues that the Government should make some adjustments in the Bill in order to address the weaknesses which have already been identified.
6.30 p.m.
The Earl of Listowel: My Lords, I warmly welcome the Bill before us today, as have the previous speakers. I take the opportunity to praise the Government's record of achievement as regards children. This may be the last piece of legislation which directly affects children that is introduced before a general election.
The Government have succeeded in reducing the size of primary school classes. Our children are receiving a better education at a time when education can most benefit them. The Government have greatly strengthened the protection for children in care and beyond through their Care Standards Act and Children (Leaving Care) Act. I express my particular gratitude to the noble Lord, Lord Hunt of Kings Heath, for his amenableness and diligence during the passing of those Acts.
The Homes Bill, which we are shortly to receive in this House, increases the housing priority of 17 and 18 year-olds and requires local authorities to develop a homelessness strategy which the charity Shelter believes will significantly reduce the numbers of children and families becoming homeless.
It was encouraging to hear the Shadow Chancellor, Michael Portillo, speak eloquently at Toynbee Hall, the East End settlement, of the need for better care for our children. He took the trouble to be present on that occasion less than two hours before he responded to the Government's Budget.
We need an effective children's commissioner for Wales because children have no vote, depend on adults and are recognised as having suffered unacceptable levels of abuse and neglect in our society. They need a strong advocate and that is what an effective commissioner will provide--an ear and a trumpet for children.
I make the following observation, however. Focus groups, social exclusion unit reports and children's commissioners' advice are all helpful but can only be meaningful if taken in tandem with personal experience. I submit that interested parliamentarians still need to visit children and families in temporary accommodation, in women's refuges, in children's
homes and in foster and adoptive families. The establishment of a children's commissioner should not be an excuse for legislators to spend less time with vulnerable children and families.I beg the Minister to consider extending the powers of the commissioner further than the Bill currently allows. It would be generous of the Minister to extend the powers of an official appointed by the Welsh Assembly to non-devolved matters. It would be generous of Parliament to allow him to do so. In these particular circumstances it would also be right to do so.
British children particularly need children's commissioners. We have the highest divorce rate in western Europe; we have more reconstituted families and our families are in greater danger of family dysfunction. Most child abuse occurs in families. Having a step-parent, particularly a stepfather, increases one's risk of being abused. We have the lowest age of criminal responsibility in Europe. In France it is 13; in Belgium it is 16 or 17, depending on circumstances; in Britain it is 10. We have the least regulated, most dynamic economy in Europe. We have to be all the more careful that there is adequate protection for children of families who are losers in this competitive economy from which the rest of us benefit.
We have more households in temporary accommodation than at any time since 1978. I am advised that most of those comprise families. Children are growing up in damp, overcrowded and unhygienic conditions, as I have seen. In Newham I visited a mother with three young children. Water was almost running down her walls. Another family had a lavatory which doubled as a shower.
Wales will receive asylum seekers. Many of the children involved will speak little English. They will need a strong advocate to ensure they receive adequate help in learning English and that they are protected from bullying.
It is important that the commissioner has the right to comment formally on certain aspects of tribunals and legal cases. Often the manner of our treatment of children in courts is lacking. We lack the admirable French system in which there is a juge d'enfance who visits families and takes family circumstances into account. The European Court of Human Rights found that we infringed the rights of Venables and Thompson. In a similar murder case in Norway, the identities of the children were not published. We need a commissioner who can obtain the necessary information to be able to comment formally on the way we treat children in court.
Over the past two years we have heard in this House of the inadequate provision for children held in prisons, most particularly at Medway secure training centre and at Feltham young offender institution. There has been a lack of education provision among other lacunae. We need a Children's Commissioner for Wales who can speak up for children in penal institutions and who can speak up for Welsh children resident in English prisons and
remand centres. He needs the power as of right to enter these institutions. This Bill does not allow the commissioner to be an independent children's champion and watchdog, as requested by the National Assembly for Wales and as claimed by the Secretary of State for Wales at Second Reading in the other place. I hope that the Minister will consider favourably in Committee the amendments to increase the commissioner's powers.6.37 p.m.
Baroness David: My Lords, I appreciate that this Bill is primarily a matter for Wales, but, given that we are debating legislation to establish the first children's commissioner in the UK, I do feel that there are UK implications. My own involvement with these matters started a long time ago in 1990, when I was on the Advisory Board for the Gulbenkian Foundation's development of a proposal to establish UK-wide children's rights commissioners. I believe that was where it all started, and in my view it has taken much too long to get to the point of actually establishing powerful independent bodies to represent children's interests.
The proposal has since attracted very wide support from over 100 children's organisations and professional groups and, from looking at the debates on this Bill, it appears to have all party support nowadays too. Around Europe, lots of countries have commissioners and ombudspeople for children up and running.
I was delighted when the National Assembly for Wales set out its proposals for a watchdog and champion for children last year, and even more delighted when the Government agreed they could find time for legislation to broaden the powers of the commissioner in this Session.
But it is clear from the debates on the Bill, and from the briefings we have received, that there are serious concerns as to whether the legislation establishing the commissioner provides for a real champion and watchdog. It is no good being half-hearted about these things. Surely we have learnt enough from the tragedies of abuse in North Wales and elsewhere to know that children need powerful, independent advocates.
You cannot be a powerful champion for children if you have to keep looking over your shoulder, or at the small print of your legislation, to make sure you are not acting ultra vires. For Ministers to state, as they have, that the commissioner will be able to comment "informally" on matters over which he has no formal powers is most unsatisfactory. Nor is it satisfactory to limit powers of a human rights institution just because of the existence of other public bodies, inspectors, for example; they are not operating from the particular perspective of children's human rights and welfare.
Nor is it enough to rely on the goodwill of future administrations to interpret the commissioner's powers broadly: the whole purpose of this sort of champion is to advocate fearlessly for children when goodwill is absent.
It seems plain to me that the commissioner should have, and be seen to have, a broad power to review and report on anything which affects the rights and welfare of children in Wales. This is not a decision-making body: whatever powers the commissioner has will be soft powers--only to monitor, review, report and so on. But surely it is perfectly obvious that a commissioner cannot be constrained in these powers by the distinction between devolved and non-devolved matters. You cannot divide children up like that. In Northern Ireland, the Human Rights Commission has been allowed broad powers; why not this commissioner?
In previous debates, the Parliamentary Under-Secretary of State for Wales suggested that it would be inconsistent with the devolution settlement to allow the commissioner powers in relation to non-devolved matters. Given the nature of the powers, that seemed unlikely, and I gather we now have authoritative legal opinion that there is no conflict with the devolution settlement.
I appreciate that we are working against time here but it is important, not just for Wales, to get this legislation right and to ensure that the children's commissioner lives up to the Assembly's vision, to children's expectations and to international standards established for human rights institutions, with which I know the Minister will be familiar.
I hope that, given the evident concern--it has been obvious from the speeches today--that the Government will be able to come up with a positive response by the time we get to the Committee stage. The Government have done so much to bring human rights home. Surely we can use the passage of the Bill through this House to create a new-style institution of which we can all be proud without reservations. I know that the noble and learned Lord has been very involved before with these matters with the NSPCC; he must know what we are talking about. I hope and am sure that he is capable of paying attention and bringing about a Bill of which we shall all be proud.
6.42 p.m.
Lord Morgan: My Lords, like other speakers, I greatly welcome the Bill. I congratulate the National Assembly for Wales on its progressive and inclusive approach. I welcome the Government's framing of the Care Standards Act, and their swift action in bringing this historic piece of Welsh primary legislation forward for debate as quickly as possible. The Children's Commissioner for Wales will provide a megaphone for justice and the welfare of children's rights. All who were shocked by the results of the Waterhouse inquiry will greatly welcome the measure. The noble Lord, Lord Roberts, observed that Wales is first in this area. That is to be welcomed. We hope that it will be a goad and stimulus to the introduction of a children's commissioner with similar responsibilities in other parts of the British Isles.
The Bill contains some welcome features. Since the tone of some of the debate has been somewhat critical, we should emphasise the more positive features. A new
dimension to the children's commissioner is as a whistle blower but with power to inquire and to report, with considerable back-up from the finance provided through the mechanism of the Welsh Assembly. It is important that he should have that wider range of powers: there should be no clash of function between the investigative role of the commissioner--for example, in relation to children's homes--and inquiry agencies and other bodies. We would not want confusion, particularly in that area.The commissioner's role is also more comprehensive and covers a range of health, educational and social services provided by a variety of statutory bodies. He will report to the Assembly. As my noble and learned friend the Attorney-General observed, the Assembly will be within the remit of the commissioner. The measure is very welcome. It has all-party support. It benefited from the inclusive nature of the Welsh Assembly. It is evident from this debate that there will be broad support for it in this House.
For those interested in devolution, it is, as my noble and learned friend observed, an historic moment. It is the first such measure to come from the National Assembly for Wales. The Assembly is often criticised, even derided, for the weakness of its powers. Like the famous death of Mark Twain, perhaps its weakness has been exaggerated. This measure demonstrates the Assembly's potential to be more effective. It shows that the Assembly is not limited to secondary legislation and statutory instruments. It can further the cause of primary legislation. If such a measure goes through the National Assembly for Wales and is then promoted by the Government, the Assembly has, in effect, a primary role.
Another criticism of the Assembly is somewhat weakened by the Bill: that is, that the Assembly has a purely executive role. If one considers the range of responsibilities which flow from the Bill, including the commencement orders, the executive and legislative roles of the Assembly become more merged.
I have some sympathy with the unease expressed by many noble Lords--from this side of the Chamber, from religious leaders and from children's charities--about the non-devolved powers, and the pressure to give the children's commissioner an almost unfettered remit. It is a serious point. It is difficult to demarcate. I suppose that that is what is meant by joined-up government. People, including children, have joined-up lives. One facet of their life experiences, often sad, impinges on another.
The noble Lord, Lord Thomas of Gresford, outlined a number of important areas. I draw attention to the Home Office responsibilities. It may be unreasonable for juvenile offenders to come under the remit of the children's commissioner, although there would be considerable overlap. However, it is worth emphasising this point. Agencies concerned with children as victims of crime involve the social services, schools, children's charities and voluntary organisations such as Victim Support. Increasingly, they have specific training as regards juvenile experience. They deal with proper sensitivity with the
traumatic effects of a crime which may be physical, or the result perhaps of observing indirectly a crime inflicted on others such as parents. It is an area which impinges closely on the experience of children and, therefore, on the role of the children's commissioner.The Government have shown open mindedness. I understand that the children's commissioner can comment on and bring before the National Assembly for Wales the widest range of factors and agencies which impinge on a specific aspect of a child's experience. That is the way it should be done.
I have every sympathy with the important comments of my noble friend Lord Prys-Davies about not being tied down too narrowly, and about taking seriously legal opinion about what is or is not a devolved matter. At the same time, surely we do not want to unpick the devolution settlement. It was contentious and controversial at the time, and has only recently attained a more inclusive form and atmosphere in Wales. I hope that improvements will be considered in Committee, but devolution should not be unpicked at this stage. One can compare the roles of children's commissioners in different European countries, but devolution is a many-sided process that has created many forms of administration, so the parallels are not always close.
I hope that devolution will move on and acquire still greater substance. I hope that the children's commissioner will move on too, as an essential and important part of that process. Like other noble Lords, I hope that the House will pass the Bill effectively and quickly as the basis of a humane and enlightened proposal that reflects the moral consensus of a civilised society.
6.51 p.m.
Baroness Andrews: My Lords, I join others in welcoming the Bill. This is a proud day for the Welsh diaspora in this House in two senses: this is the first devolved Bill to reach this House and it puts children first. In both senses, it speaks of a better future.
In creating a children's commissioner last year and now in providing deeper and wider rights to safeguard and promote--those words are equally balanced in Clause 2--the rights and welfare of children in Wales, Wales has forged ahead and joined other progressive nations that have given children the right to be heard, to be fully protected and to be nourished for the future. Although we have heard significant criticisms of the Bill during the debate, the children's charities and the Welsh Assembly have every reason to be proud of what has been achieved. I think that they would agree with that. Their reward should be to see the Bill pass through the House with the greatest speed so that the exceptional appointment that they have vested so much hope in can get on with the job of protecting the children of Wales. I say that notwithstanding the ghastly shadow that is bearing down on us at the moment.
It is worth revisiting why this office is so important and why the commissioner's powers should be extended. The report of the Health and Social Services
Committee of the Welsh Assembly made it clear that it saw the appointment of the commissioner as affirming its commitment to improving the quality of life for children and young people in Wales. There is a long way to go, not least to ensure that the misery of those children who were the subject of the Waterhouse report, which laid the foundations for this new office to safeguard children in care, is never repeated.The new commissioner, Mr Peter Clarke, has already said that his highest priority is to ensure that in Wales there is nowhere for child abusers to run to or to hide. He has said that whether children are looked after in their own home or a foster home, whether they are being bullied in school, in the community or in the street, they must have the opportunity to speak out and to feel safe in doing so and that the adults who care about them should also know that they can feel safe about speaking up on their behalf as early as possible.
Because of their value and their vulnerability, all children in England and Wales ought to have someone to speak up for them across all the services that affect them and to scrutinise the work that is done on their behalf and for them. The extension of those powers in Wales is particularly timely. We have many outstanding examples of performance in public service and community provision in Wales. We have always put a very high value on education, culture and the health service. In the past 20 years, Wales has been in the front line of industrial change, which, together with unemployment and poverty, has had a marked impact on children and young people who have grown up in communities that have lost confidence as well as jobs.
Recent official reports on social inclusion in Wales have found that, compared with England, we have some pretty awful statistics. We have more children leaving school without academic qualifications, more children recorded as truant, more children in local authority care, more children on the child protection register, more households with no earner, more children living in households with below 50 per cent of mean income and fewer day care places. That means lower achievement, poor health and poorer life chances. One in seven young people is not in education, training or work. We know the link between poverty, unemployment and poor health. That has been diagnosed to death--literally. Health authorities in Wales recently pointed out that children and adolescents in Wales have some of the worst health-damaging behaviour indicators in western Europe, with smoking, alcohol, drug abuse and unintended teenage pregnancy all on the increase. The Welsh Assembly's report on young people said that we should do more to strengthen the fences that prevent people from falling over the cliff rather than providing more ambulances and police vans when they do.
The children's commissioner is a vital part of that protective mechanism. Most importantly, he can also promote the rights and welfare of children in Wales. Whether we are talking about children at risk because they leave care without homes or prospects or those who look after others because they have no choice or the many others who do not know their rights or how
to fight, the commissioner can do more than just provide a willing ear or a willing voice or a more critical eye: he can assert their rights, make the case for them, fight their battles, improve their chances, find out what is going wrong and help to put things right. I see nothing in the Bill to inhibit him doing that.I very much hope that the statutory services will see him not as a threat but as a powerful ally as they strive for higher standards. He is independent and can be a critical friend to services, but he must also be a critic of services on behalf of those young people whom they are failing. If necessary, I hope that he will not hesitate to challenge them. The children's charities know the value of informal comment across a range of services, even if his powers are limited--although they may not be limited if the noble and learned Lord, Lord Williams, listens to what has been said this evening.
The commissioner is not there to represent a collection of boxed-off interests. As many noble Lords have said eloquently this evening, children are not a collection of client issues. We must deal with the whole child. The commissioner will have a role across the board--on issues relating to the failure of child protection, the right to the most appropriate education, training, employment or health services or resources that children lack and cannot obtain, whether that means safe places to play, opportunities to take part in the arts or sports, or affordable transport. I hope that he will be able to make sure that the young people's strategy in each area will reflect what the young people want and can make most use of. All that may give him a unique opportunity to improve the quality of life of children and young people.
Wales is doing this for the first time and in novel circumstances. Like many other things done for the first time, the process is bound to raise difficult questions--indeed, it has already done so. Many noble Lords have emphasised that the scope of the commissioner's work is limited, logically, to the powers that have been devolved. The limitation raises serious and sincere concerns about the potential fragmentation of his powers. There are issues and ambiguities that need to be cleared up. For example, it is not clear to me whether the commissioner will be free to explore a matter that relates to youth justice if he uncovers it incidentally in the course of his work in, for example, exploring social services for children.
Those and other matters will be raised with the steering committee. Other issues that the children's charities have raised have already been referred to this evening. However, we have not addressed the imperative on the commissioner to find new ways of listening to children. Peter Clarke comes from an organisation that has made a reputation for listening acutely and responding to the needs of children. I feel sure that he will bring that with him, because he must know that to have a token representation in this new post would be a great disservice. Children rarely complain and when they do so they are often not listened to or taken seriously.
In that respect, I should be interested to know to what extent the regulations laid by the Assembly will be robust in providing mechanisms which will make access for children easy and appropriate and whether the resources will be put behind the mechanisms to make sure that those children's voices which are most muted and diminished are heard, and that action will follow from that.
I believe that the strength of this Bill is not that it is about making reparation to children. It is not a default model for making good what does not work. The commissioner cannot put right all that is missing. He cannot provide the resources for recreational activities and training, clean up the valleys and the streets, repair houses, improve transport or banish the drugs which are such a curse in so many of our communities, especially in south-east Wales. But he can draw attention to some of the disparities that occur across Wales and the implications of that and can draw attention also to the intensity of disadvantage which we have seen in recent years. He can do far more than complain.
With those new powers, he can reach into the most powerful corners of Wales on behalf of the least powerful and he can celebrate what children do. Although he may have to shame, I hope that more frequently he will inspire and energise. Above all, he can get people working together for the sake of the children and young people of Wales.
We have had some very bad news in Wales in recent weeks in connection with the steel industry. It may not come to pass. I hope fervently that alternatives will be found. If not, families and children will be placed at even greater risk in those communities. But I believe that this Bill offers fresh hope for the future of Wales through the potential of its children and in that it is something of an antidote to recent despair. I wish the Bill a speedy passage through the House so that that task can begin as soon as possible.
7.2 p.m.
Baroness Walmsley: My Lords, I rise broadly to welcome the Bill but I too echo the disappointment of my noble friend Lord Thomas of Gresford and others at the Government's resistance to the amendments tabled in another place. I hope that our discussions in your Lordships' House will convince the Minister that this Bill is a vital opportunity to change for ever the attitude we take in this country to children's rights.
We have the opportunity in this Bill to strike a blow for an effective voice for the children of Wales, a voice that must be listened to.
In my view, we need to be much more child-focused in the whole of the United Kingdom. Currently, we treat children more like property than junior human beings with rights and voices of their own. The Bill we are debating today could be an enormous step forward in changing that attitude for ever.
That is why it is important that the right of the commissioner to consider and make appropriate representations about any matter affecting the rights and welfare of children ordinarily resident in Wales,
including non-devolved matters, is put on the face of the Bill. That is why the right of the commissioner to enter institutions which contain children and to interview children and adults in a way that does not duplicate the work of others must be put on the face of the Bill. That is why the right of the commissioner formally to comment on the effects of decisions of courts and tribunals must be put on the face of the Bill.Wales needs a children's commissioner with statutory powers across all services, across all areas. The additions that I have just mentioned would bring the Bill into line with the United Nations guidance on human rights institutions, as laid down in the Paris principles.
The Waterhouse report revealed the desperate need for a fully empowered children's commissioner, but it would be sad if history showed this Bill to be a knee-jerk, narrow-minded reaction to a particular sad case, rather than what it has the potential to be--a radical, thoughtful and courageous step forward for children's human rights in Wales and the beginning of a similar process in the other jurisdictions.
The noble Earl, Lord Listowel, has eloquently listed the many sad reasons why that is desirable. It is not enough for the Government to say that the commissioner can comment informally in areas other than those in the schedule and would not be gagged. Without a statutory right to do so, the listening attitude which we currently detect in the Government could quickly give way to an unaccountable deafness in a future Administration and we should have lost a golden opportunity.
It is critical that the commissioner is given as broad a mandate as possible since, under the doctrine of ultra vires, a public authority must not act outside its powers. We must ensure that the commissioner can conduct his work with confidence within the widest possible powers.
The Government said that they were willing to legislate to put into effect the vision of the Welsh Assembly on this matter. This Bill as it stands does not quite do that. I hope that we in this House will be able to persuade the Government that there are no legal obstacles to fulfilling those objectives during the passage of the Bill. Indeed, a recent legal opinion, which has already been referred to, obtained by the Children in Wales Commissioner Campaign Group, makes it clear that there are no such obstacles.
There was general consensus at the joint meeting between the Welsh Assembly's Health and Social Services Committee and the Pre-16 Education, Schools and Early Learning Committee in March last year that the children's commissioner should, among other things, first, promote children's rights, raise the profile of children's issues and take an overview of the impact of policies and procedures on children across all services. The Bill must be amended if that requirement is to be fulfilled. Children are not parcelled up into discrete devolved and non-devolved packages. They are as affected by non-devolved matters as they are by devolved ones.
Secondly, as regards not seeking to take the place of existing complaints systems, a right for the commissioner to enter premises containing children would not duplicate the work of other agencies or complaints systems.
Thirdly, in relation to the ability to undertake a formal investigation if a matter of principle is at stake, the commissioner will be acting in a mode similar to that of the Equal Opportunities Commission or the Commission for Racial Equality. The right to comment on court and tribunal cases could be very important in that respect.
There was also general agreement that there should be a mechanism to ensure that the commissioner's recommendations were not ignored. That is why the Government's refusal to allow a formal right of comment in certain situations is not in line with the consensus in Wales. If that formal right is not enshrined in law, it would be easy to say that the commissioner was stepping beyond his brief and that it was not an informed view; and to ignore it.
There are many good examples of such commissioners in other countries. The best and most effective models do not limit a commissioner's right to comment formally about any matters affecting children. A society that was confident about the way it treated its children would have no fear of the professional comments of an experienced expert. We must have the confidence to create such a commissioner in Wales, someone who has the freedom and independence to advise on any aspect of children's rights and welfare, someone to whom governments are obliged to listen, not just today under this Administration but for the future.
7.8 p.m.
Lord Brookman: My Lords, I declare an interest not only because I am Welsh--as, I believe, are all noble Lords who have spoken on the Bill this evening--and proud of it but also because, about a month or two ago, I was approached to become president of the Welsh Trust for the Prevention of Abuse, a charity. That trust was founded in mid-Wales by a strong campaigner for justice, Mrs Joan Nathan. Lord Wise, the trust's current chairman, together with some wonderful volunteers, approached me and I agreed to become the president.
That trust runs on a voluntary basis. It has been in operation only for some 12 months or more and it works to prevent physical or sexual abuse of the elderly, children, children in care and anyone subject to abuse.
I am pleased to say that at its launch the trust had the support of some 54 signatures of Members in the other place, as well as the strong support of the Secretary of State for Wales. I say all that because as far as I can ascertain, the trust is not part of the Children in Wales Commissioner Campaign Group which has been referred to extensively this evening. I am sure that the trust welcomes the Bill as strongly as any organisation that has been mentioned.
I hope that at an appropriate time my noble friend the Minister will comment on the trust, on the fact that it is a charity and on its being called,
- "The Welsh Trust for Prevention of Abuse".
Wales has received some body blows during the past few weeks. That was referred to by my noble friend Lady Andrews. I am extremely pleased that the House is discussing a proposal that is good news for the people of Wales. The Welsh Assembly should be commended on its speedy work and its Health and Social Services Committee on producing a positive and constructive report. Moreover, the Secretary of State for Wales, Paul Murphy, should be given credit for facilitating the report, as should the Assembly's First Secretary, Rhodri Morgan. That report spells out in some detail a clear view of the commissioner's duties, responsibilities and accountability. That is properly summed up by saying that we should ensure that the commissioner becomes the children's champion.
Embracing the report's recommendations and turning them into a sensible, workable and acceptable piece of legislation is the challenge before Parliament. As the Minister is aware--this has been discussed extensively this evening--there are various concerns in this context. Many of them were expressed by the Children in Wales Commissioner Campaign Group. I am sure that the Minister is by now fully aware of those strongly held views. Briefly, they involve: the right to consider and to make appropriate representations about any matters affecting the rights or welfare of children who are originally resident in Wales; a right to comment on the decisions of courts and tribunals; formal power of entry to institutions; and rights of interviews for children and adults. Many noble Lords have discussed those concerns. I hope that I have summarised the main areas of concern.
I point out--I believe that the noble Lord, Lord Morgan, and my noble friend Lady Andrews also maintain this--that above all we must ensure that the children's commissioner for Wales quickly starts working as the champion of children in Wales. I feel equally strongly about the need for the Minister, who has been praised for his knowledge of this subject, to address the concerns that have been expressed this evening in this House and in the other place. He should ensure that the House takes a constructive role in establishing legislation that will play an ever-important role on behalf of children in Wales. We in this House must not let them down.
The opening remarks of my noble and learned friend Lord Williams Mostyn were correct. This is an historic occasion, and we must ensure that the Bill is enacted quickly.
7.15 p.m.
Lord Laming: My Lords, I am most grateful for the opportunity to contribute to the Second Reading
debate on this important Bill. I have been helped by the opening speech of the noble and learned Lord the Attorney-General and by the notable contributions of all those who have spoken this evening. Several fundamental questions that are aimed at strengthening the role of the children's commissioner for Wales have been raised.Although I readily accept, as the noble Lord, Lord Brookman, said, that this proposal is primarily a matter for Wales, I hope that noble Lords understand that I have a general and a particular interest in this matter. I have a particular interest because I am to chair the statutory inquiry into the ill treatment and murder of the little girl Victoria (Anna) Climbie, which was referred to earlier. Nothing that I say this evening should be interpreted as questioning the need to do everything that we can to protect vulnerable children. My questions are not about the principle of having a children's commissioner; rather, they seek clarification about the powers and resources that are attached to the post and its relationship to other authorities.
As has already been said, the Government recently enacted the Care Standards Act 2000, for which they deserve great credit. That Act brings together for the first time a system of registration and inspection of most childcare provision irrespective of who provides it. The registration and inspection of childminders will be undertaken specifically by a created section of Ofsted. In my view, that is a mistake because childminding is more about good childcare than about education. Be that as it may, the decision has been made and I wish the new arrangements well.
The Government are also creating a general social care commission, which is charged with the registration of staff working with vulnerable people. Children are in a primary position in that regard. Although I am not as familiar with the Welsh Assembly as are many noble Lords who are present this evening, I assume that there will be an equivalent body with similar powers in Wales.
My point is that the children's commissioner will have to operate within a framework involving several statutory bodies which have clear duties to provide services for children and young people, and within a regulatory framework which has been deliberately strengthened. In addition, most of the organisations that are providing services for children and young people are subject to performance evaluation by several government inspectorates. Having read the Bill and the deliberations in another place, I remain somewhat unclear about the powers of the commissioner and whether those powers are sufficient to achieve the aims, which have already been discussed this evening, that attach to the post.
That the commissioner has a role to promote the well-being of children and young people is welcome. I am associated with a Carnegie project, which seeks to support good practice in ensuring that young people play an active, responsible and constructive part in community life. Helping young people to be heard is most welcome. Also welcome is the freedom of the commissioner to highlight the need for better services,
be they about youth clubs or speech therapy. I take it that this is what the Minister meant when he said in another place that the commissioner would look at broad policy obligations or commitments and make general comments about the level, support and type of service provided. That suggests a very general approach.As has already been said, the recommendation for a children's commissioner was made in the voluminous Waterhouse report on child abuse. That was specific about the responsibilities that such a post should have in seeking to protect young people from abuse and exploitation. In response to that, the Minister in another place said that the National Assembly has made it clear that it does not anticipate the commissioner investigating individual cases as a matter of routine. Somewhat to my surprise, he went on to say that he wanted to ensure that the children's commissioner has all the necessary powers to prevent a recurrence of the circumstances that led to the Waterhouse report. We all agree with that; we all want the commissioner to have powers that will prevent the recurrence of those dreadful circumstances. The question is whether the post, as it is currently envisaged, has the powers to achieve that laudable aim, which we all support.
I am sure that all noble Lords agree that one child being treated cruelly or preyed upon by an adult is one child too many. Already too many sad and atrocious experiences of that kind have been brought to our attention. We must question whether or not the post, as now envisaged, has sufficient responsibility and power to achieve that aim. It is particularly important that, in creating such a post, we avoid the danger of creating a false sense of security and the feeling that all will be well.
I turn to resources. I note that the Explanatory Notes to the Bill estimate the cost of the provisions to be £300,000 per annum and that in another place the Minister said that the commissioner will have a budget of £800,000. Can the Minister tell the House whether he is satisfied that the children's commissioner, as outlined in the Bill, will have all the powers and freedoms that he needs, and the authority and the accountability to protect children at risk, and whether the resources are sufficient to carry out that task?
I, for one, do not question the need to have a children's commissioner, but all noble Lords need reassurance that the commissioner will be given the powers and freedom to have a powerful impact on protecting vulnerable children and young people from exploitation and abuse.
7.21 p.m.
Lord Davies of Coity: My Lords, it is not necessary at the Second Reading of a Bill to provide a children's commissioner for Wales, to speak at great length and I do not intend to do so. Fundamentally, no noble Lord is opposed to this Bill. Indeed, I would have been surprised--no, I would have been shocked--if any noble Lord did not support the principle of a children's commissioner. There is clear need for such a provision.
The horrific reports that we constantly hear of the practices of paedophiles and child abusers clearly brings home to us all how vulnerable too many children are to such grotesque predators. As we know, that is not a problem that is confined to Wales, as the recent Internet case so illuminatingly demonstrated. This Bill is a start. The Waterhouse report, Lost in Care, which followed the North Wales abuse scandal, prompted the Welsh Assembly to act and that is why this Bill is before us today.
As I have said, I would have been shocked if any noble Lord opposed this Bill, but I recognise that there are those who believe that the children's commissioner should have greater powers and more influence. Among such critics are the National Society for the Prevention of Cruelty to Children and the Children in Wales campaign. We know that those organisations truly have small, frightened and exposed children at heart. I have no doubt that anything they propose is well meant and fully intended to protect children from abuse, particularly the worst excesses of abuse.
Therefore, I implore the Minister to give the views of the NSPCC and Children in Wales very serious consideration with a view to bringing forward appropriate amendments. Of course, no one wants to see the Bill delayed or to fall because of lack of parliamentary time. But what harm can it do to strengthen the powers of the commissioner further, even if some believe it would be over-kill to do so? I believe it would do no harm. On the other hand, further powers to protect children that little bit more would undoubtedly justify bringing forward amendments in line with what the NSPCC and Children in Wales seek.
In conclusion, in the 40 years that my wife and I have been married we have brought up four daughters who are now married. Between them they have provided us with eight wonderful grandchildren who live around us. I am constantly grateful for the healthy and stable environment in which they live, but when we hear of the unfortunate circumstances that many little children suffer, through no fault of their own, I despair. We know of the loneliness that such children have to endure through the absence of family support. When so many are subjected to gross abuse we know that something has to be done. This Bill makes a start. We can build on it in the future so that the evil suffered by so many little children can eventually be eradicated.
7.25 p.m.
Baroness Gale: My Lords, being one of the last speakers in the debate I shall not mention all the matters to which I would have referred if I had spoken earlier. Having been involved in the concept of a Children's Commissioner for Wales for several years, I take part in this debate with the greatest pleasure.
Noble Lords may well know the history of this Bill: that it will improve Part V of the Care Standards Act, which established the post of Children's Commissioner for Wales. Noble Lords will also be aware that it results from of close co-operation between the Welsh Assembly and the Westminster
Government. This is a unique approach in the way that we look after the rights of children in the United Kingdom.In the past, children's voices have not been listened to. I am pleased to hear from the Attorney-General that Peter Clarke will take up his post as children's commissioner on 1st March. From that day on children in Wales will have a champion; someone who will safeguard and promote their welfare and rights; someone who will speak up for them; someone who will listen to them and someone whom they can trust.
As my noble and learned friend has said, the new clause sets out the principal aim of the commissioner as follows:
- "The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies".
In the debate we have heard a great deal of criticism of the Bill and in Committee stage we can examine those criticisms. However, I believe that this is a good Bill and I feel proud that a Labour Government, working with the Welsh Assembly, has committed itself to this important measure.
My noble friend Lord Davies has much more experience in this field than I have and I was proud to listen to his speech. He spoke of criticisms of the Bill and, as I said, I hope that those will be addressed in Committee. This is the first "Wales only" primary legislation since devolution, which makes this an historic Bill. Having worked in Wales for many years to achieve a Welsh Assembly, I feel proud to be able to take part tonight.
When discussing this Bill with me, many of my noble friends asked why there is not to be a Children's Commissioner for England, but devolution is about different parts of the United Kingdom doing what is necessary for that part. I hope that in the future England will follow the example of Wales and have its own children's' commissioner, although I do not believe that that is a matter for this particular Bill. Wales is leading the rest of the United Kingdom in this matter, albeit as a result of some terrible cases of child abuse in Wales.
The Waterhouse report recommended the appointment of a Children's Commissioner for Wales. At the elections for the Assembly in 1999 three of the four political parties in Wales had such a commitment in their manifestos. There was no difficulty in the Assembly working with the Westminster Government to ensure that a children's commissioner be appointed. All four parties in the Assembly are now in favour of extending the powers of the commissioner.
I am aware that children's charities in Wales have reservations and are concerned that the Bill does not go far enough. When I followed it through its stages in another place, it seemed that there was a desire to get it through without delay. Indeed, there appeared to be a great degree of co-operation between the parties.
We know that the rights of children are paramount and that they will prevail in your Lordships' House. Noble Lords expressed reservations about the Bill and I do not want to give the impression that it should be rushed through without proper scrutiny. But I am concerned about possible delays. Although we are possibly approaching a general election and there could be little time left to debate the Bill, it is important to the children of Wales that it is not lost.
The Bill is a huge improvement on what was previously put forward. It may not contain everything that everyone wants but I am sure that all the organisations and those concerned about the well-being and rights of children would prefer it rather than the alternative.
As my noble friend Lord Brookman said, it is good news for Wales and I hope that this unique and historic Bill will have a swift passage through your Lordships' House in order that it shall be on the statute book before the general election.
7.31 p.m.
Lord Hooson: My Lords, I had not intended to speak in the debate but, having heard what has been said, I want to reflect on one issue. I warned the noble Baroness, Lady Farrington, of my decision to speak.
Throughout the debate, Members on all sides have expressed the desire to have an effective children's commissioner for Wales. The worst thing that we could have is an ineffective commissioner, because that would bring the whole system into disrepute. I greatly appreciated what was said by the noble and learned Lord the Attorney-General about the work of Sir Ronald Waterhouse in compiling the report. He performed a gargantuan task and I know that he would want to see an effective children's commissioner.
Will the Minister tell us whether we are we inhibited by what has been described as the "devolution settlement"? I do not believe that we are. I subscribe to the view advanced by my noble friend Lord Thomas of Gresford about the legality of the post. As regards the legal and constitutional grounds, are the arguments put forward in the Commons Standing Committee valid? There are grave doubts about whether they were. If they were valid, is there not another means of providing the broad powers which the children's commissioner needs in order to be effective? Are there not parliamentary conventions embodied in what during the devolutionary settlement were called "concordats"? Perhaps that is another means of achieving the necessary power.
If a prison inspector were not entitled to visit a prison, for example, his reports would not be much good. One can argue that care inspectors visit to establish the standards of care. However, the children's commissioner will visit for a totally different purpose. He or she will visit for the purpose of ascertaining the welfare of the child, which is an important distinction--and we know how effective prison inspectors' reports can be in alerting the public to great problems in prisons.
I believe that it is possible for us to provide the Children's' Commissioner for Wales with the powers necessary to be of benefit to the children of Wales. There is no disagreement by any party, a position different from that which existed when the devolution Bill was before us. Therefore, surely there is an opportunity, especially for someone with a mind as agile as that of the noble and learned Lord the Attorney-General, to provide the powers that the children's commissioner needs.
7.35 p.m.
Baroness Farrington of Ribbleton: My Lords, I thank all noble Lords for their contributions to the debate and shall seek to respond to the points that they raised. It has been an extremely thoughtful and knowledgeable debate and if I overlook any of the individual points I undertake to write to noble Lords.
In reply to my noble friend Lord Prys-Davies, I, too, am most conscious of the fact that our noble friend Lord Cledwyn of Penrhos would have wanted to be present for the debate had his health allowed. We miss him very much on an occasion such as this.
Perhaps it would be logical to begin by examining the issue which has run as a thread through almost all tonight's contributions. It is the jurisdiction of the commissioner as proposed in the Bill over non-devolved matters. As my noble and learned friend outlined earlier, the establishment of the children's commissioner is the result of policy developments by the National Assembly for Wales. It is therefore right that his functions should coincide with areas in which the Assembly has a responsibility. The Bill will extend the commissioner's jurisdiction to the Assembly and to bodies in Wales which have significant functions in the areas which come within its responsibility. That will give the commissioner a very wide scope for his activities ranging from the WDA to the Welsh Language Board and including the Assembly, local authorities and the NHS.
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