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Lord Prys-Davies: In the other place it seemed to me that Ministers clung to the view that the remit of the commissioner should not be extended to the non-devolved UK departments because of the terms of the settlement. I am pleased that there has been a significant shift of emphasis on the part of the Government. However, we shall have to wait to see the precise amendment. Meanwhile, for my part, I welcome the Government's decision to table an amendment, which I hope will be along the lines of Amendment No. 4.
Lord Roberts of Conwy: I believe I understood the noble and learned Lord clearly this time. I dare say we shall have further illumination on Report. As I understand the position at the moment, the Government are prepared to allow the commissioner to make his representations to the Assembly about any matter that concerns him, whether that matter arises from the regulated services or anything that he may hear that comes from the non-devolved areas. Therefore he can in fact approach other departments of government or statutory bodies through the Assembly, or the Assembly will be able to do it for him.
Lord Williams of Mostyn: The Assembly will receive the representations from the commissioner. But I stress that the commissioner is not an elected person or body; the Assembly is. It is the Assembly therefore that ought to have the decision as to what representations to make, in what circumstances, to which department or other interested body and in what terms.
Lord Roberts of Conwy: I accept what the noble and learned Lord says. However, I was asserting that the Assembly could deal with the representation, even if it related to a non-devolved area or another government department and so forth. But as we understand it now, it would be for the Assembly to decide how to deal with the commissioner's representation. We shall content ourselves with that position as we have established it and consider the matter further.
Of course, Amendment No. 5 asks for rather more than the Government are prepared to concede. We want the commissioner to be able to make representations to a Secretary of State, which means the head of any government department, or a statutory body, which means a local authority or any other of the bodies listed in the various schedules to this Bill. I do not believe that we shall progress much further at this stage. I shall therefore consider the matter further between now and Report. Perhaps the noble and learned Lord will consider yet again the role of the commissioner as it is required, not simply by the Assembly, because they have also considered it, but also by the campaign group. Everybody in Wales who is connected with this area is anxious that the commissioner should be able to act promptly and directly if the need arises.
With those few words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies moved Amendment No. 5:
- Page 2, line 14, at end insert--
The noble Lord said: As is well known, Amendment No. 5 is a "purpose clause". It amounts to an enunciation of a principle rather than a strictly legal obligation. I thank the noble Lords, Lord Hooson, Lord Elis-Thomas and Lord Renton, for their support. I was particularly pleased that the noble Lord, Lord Renton--who has a greater knowledge of purpose clauses than anyone else in the Chamber--supported us. He would not have put the authority of his name to this amendment if it was inappropriate in its form or intention.
Amendment No. 5 raises a point of principle which is of fundamental importance to the children's charities in Wales. It seeks to enshrine on the face of the Bill the principle that the Children's Commissioner should exercise his functions in the spirit of the United Nations Convention on the Rights of the Child.
I have read and re-read the report of the Health and Social Services Committee of the Welsh Assembly. It is clear to me that the intention of the report is that the commissioner should exercise his functions in the spirit of the UN Convention on the Rights of the Child. That comes out clearly in paragraphs 19, 21 and 28 of the report, and also in paragraphs 1 and 2 of the summary. Paragraph 28 comes under the heading, Role, Remit and Functions, and reads,
Of course, the charities welcome Clause 3 of the Bill as it stands. But they are concerned by the omission of any reference to the convention, bearing in mind that this was a central recommendation by the Welsh Assembly. The charities are therefore looking to Parliament for a legislative framework which will encourage the Children's Commissioner at all times to work in the spirit of the UN convention. It is a modest request. I beg to move.
Lord Roberts of Conwy: I understand that Amendment No. 8, which is in my name, is grouped with Amendment No. 5 and it may be for the convenience of the Committee if I speak to it now. I make no apology for the fact that this is an abbreviated version of an amendment introduced by Mr Win Griffiths--the Labour MP for Bridgend and a former Welsh Office Minister--during Committee stage in another place.
I shall deal first with the second part, paragraph (b), of Amendment No. 8. As I indicated during Second Reading, one of the inspirational mainsprings of the present Bill is the United Nations Convention on the Rights of the Child 1989, which was ratified, with reservations, two years later by John Major's Government. The Health and Social Services Committee of the National Assembly for Wales and, as the noble Lord, Lord Prys-Davies, mentioned, the campaigners for a child commissioner drew heavily on the convention and its effect on other countries in formulating their proposals.
There is no doubt that what the National Assembly wanted for Wales was a child commissioner whose office would meet the highest international standards. I believe that the Assembly is well aware that that is not what the Government have provided them with in this Bill.
Mr Peter Newell, the chair of the Children's Rights Alliance for England, adviser to the European Network of Ombudspeople for Children and author of Taking Children Seriously--a proposal for a children's rights commissioner has summed up his views as follows:
A fair point is that no one suggests that the commissioner should have decision-making powers. His basic powers are to monitor, to review and to report publicly. There is no justification for limiting those powers to devolved matters. Allowing the commissioner to monitor, to review and to report on all matters that may affect the human rights of children in Wales does not conflict with the devolution settlement.
The first part of the amendment requires the commissioner to,
Lord Hooson: The genesis of Amendment No. 5 was, as I recollect, a round-table discussion in the Bishop's Bar between the four signatories to the amendment. All four of us discovered that we were great believers in having a purpose clause. We were also great believers in making legislation as simple as possible but that certain guiding principles should illuminate any interpretation of the Bill when it becomes a statute.
The noble and learned Lord the Attorney General has been extremely co-operative and has provided great guidance on the Bill. We are all anxious to achieve an Act of Parliament that will be of great help to children in Wales and perhaps be a guiding light for other legislation. However, I believe that this particular clause, shorn of all regard to have to consult with various people, contains a set of guiding principles that are now universally accepted with certain modifications, and that is so important.
Previously there was pressure on the noble and learned Lord the Attorney-General, perhaps due to a lack of time, that meant that we did not consider in depth the need for a purpose clause of this kind. Now that that pressure has been removed I am sure that he will agree that there is great value in a purpose clause of this kind. The House should be grateful to the noble Lord, Lord Prys-Davies, for drafting the amendment.
"(2) For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government.""
"We believe that the Commissioner: should exercise his/her functions with the overarching aim of promoting and upholding the United Nations Convention on the Rights of the Child".
However, nowhere in the Bill or in the Explanatory Notes prepared by the Welsh Office is there a single reference to the convention. That may be acceptable to the Assembly, I know not. But it was a cause of disappointment and concern to the Children in Wales campaign group.
"This legislation does not match up to the vision of the National Assembly. It falls short of international standards and creates a commissioner who will not be on a par with existing children's ombudspeople and commissioners across Europe".
He goes on to describe the situation in Europe, stating:
"In Europe there are now at least 20 children's ombudspeople or children's rights commissioners. Some are federal; some, like the Wales Commissioner, are appointed by regional governments. But none is limited in its powers: all are empowered to monitor and report on anything which affects the human rights of children. Many are directly linked in their legislation to the Convention on the Rights of the Child and have specific duties to maintain contact with children and promote respect for children's views. The Children's Commissioner for Wales will not be on a par with these institutions or have comparably wide powers unless the Bill is amended".
Mr Newell describes the situation under the Northern Ireland Human Rights Commission which was established as part of the Good Friday agreement and includes children within its general remit. Its first
major investigation has been into the juvenile justice system in Northern Ireland, which, I understand, is a non-devolved matter. Mr Newell asks:
"Why should the Children's Commissioner for Wales not have powers to investigate and report on the juvenile justice system in Wales?"
We all know the answer to that question. He is not allowed to deal with the non-devolved areas.
"maintain direct contact with children and children's organisations".
All who have been involved with the Bill are aware of the active role played by the children's organisations that I named in relation to a previous amendment, and which have campaigned for this office. We have all acknowledged our indebtedness to them. Those organisations know a great deal about the children with whom they come into contact. Time and time again they stress the prime importance of direct contact with them at the highest level. A later amendment deals with the commissioner's right of access to children. For the moment, I am content to say that the case for the commissioner to have regard to the need for contact is so strong as to merit its inclusion on the face of the Bill.
4.45 p.m.
"Principal aim of the Commissioner".
The clause creates what will be Section 72A of the Care Standards Act 2000 and states:
"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".
That is a subjective test for the commissioner. According to his views, he must follow that principal aim. However, the amendment adds to that and provides objective tests. The amendment reads:
"For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government".
He must always have that in the back of his mind when carrying out his functions. Whatever his subjective aim may be, an objective background should be borne in mind when making decisions or when the Assembly considers his report or whatever. Therefore, the four signatories to this amendment believe that is of vital importance.
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