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Lord Roberts of Conwy: I am grateful for the noble and learned Lord's comments. As I said, this is a probing amendment. I dare say that the new amendments that we shall see on Report will deal with the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Conwy moved Amendment No. 13:

Page 3, leave out lines 16 to 19.

The noble Lord said: In moving Amendment No. 13, I wish to speak also to Amendment No. 17. The amendment concentrates on the major issue of why the commissioner is confined to devolved areas and cannot operate in non-devolved areas of government. We have been given a considerable amount of enlightenment this afternoon on this issue but we still await the tabling of the Government's amendments on Report.

At present there are substantial areas where children are involved which the commissioner cannot touch. I quote from subsection (6) of Clause 3 which the amendment seeks to remove. The Assembly cannot add to Schedule 2A by order,

"if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions".

A similar provision is contained in Clause 4 which prohibits the Assembly making orders as regards Schedule 2B.

We are all familiar with the consequences. Arrangements made by the Home Office, for example, to deal with young offenders in custody may not come within the commissioner's purview. As I said earlier, this is an important area and is likely to become more so as the Government plan for 400 secure training places in addition to those in current use.

I note the case of the 13 year-old persistent offender on page 31 of the White Paper, Criminal Justice: The Way Ahead. The boy was detained in a local authority secure unit. If that case had occurred in Wales, I assume that the commissioner would have had some oversight of it in view of his local authority responsibilities. We are concerned about young offenders. I am sure that reports such as that of the Chief Inspector of Prisons, Sir David Ramsbotham, on Brinsford YOI are very much on our minds. I need hardly remind the Minister of Sir David's words,

"Brinsford's regime, with all the indicators we found of self-harm, fear for safety and bullying, puts most of its juvenile population at risk of harm".

It would seem peculiar if that kind of situation were to occur in Wales at some time in the future and the Children's Commissioner had no role to play. Other

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departments of state which deal with children are the DSS, through the CSA and the benefits system, and the Ministry of Defence through the cadet forces.

We understood that it was government policy to confine the commissioner to the devolved areas. The noble Baroness, Lady Farrington, made that clear on Second Reading. She said:

"The issue of whether there is in principle any reason why the Government should not legislate for the commissioner to have a role in respect of non-devolved services is one of policy rather than constitution".--[Official Report, 19/2/01; col. 570.]

Why have the Government adopted that policy? I pointed out at Second Reading that Section 7 of the Welsh Language Act 1993 empowers the Welsh Language Board to give notice of its requirement to any public body operating in Wales, whether devolved or not. The commissioner could have been similarly empowered, but he has not been. Reference has also been made to Section 68 of the Northern Ireland Act 1998, which creates the Northern Ireland Human Rights Commission. The legal opinion obtained by the campaign group is that the function of that commissioner is in no way limited to transferred powers alone or even to transferred and reserved powers. It is a powerful body whose first target is the juvenile justice system, which is a reserved area.

There is no doubt that the Assembly's Health and Social Services Committee had such a powerful commissioner in mind. It said as much in its report. As we have not quoted the report very much this evening, I think that paragraph 29 merits inclusion in the record. It says:

"We have given consideration as to whether the Commissioner's remit should include policy and services that affect children in Wales but for which responsibility has not been devolved to the Assembly, such as the benefit system. We believe that such jurisdiction would be desirable to promote the rights and welfare of children in Wales. The widest possible functions in respect of non-devolved policies and services should be explored and, as a minimum, the Commissioner should be able to consider and make representations in respect of any non-devolved matters affecting children in Wales in a way similar to the Assembly's right under section 33 of the Government of Wales Act, which is an exercise in respect of non-devolved functions. However, we recognise that such a proposal would be subject to negotiation with the UK Government".

That negotiation has clearly been going on and the Government appear to have listened. There are all sorts of possibilities ahead. We do not know how generous the proposed amendment will be, but we have had a reasonable outline of it today. I detect that the Government's view is that, as the commissioner is an Assembly appointee and funded by the Assembly, he must be confined to the Assembly's areas of responsibility. He can make informal representations and what he says will be given every consideration, but he will not have power to demand information, let alone interfere in non-departmental affairs. We hope that that position has changed slightly. As the Government's amendment is not yet available to us, I beg to move the amendment in the hope of hearing further comment.

Baroness Farrington of Ribbleton: I believe that I can help the noble Lord. His example of children placed in

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local authority secure units would obviously fall directly within the devolved functions, so there would not be the problem that he envisages.

I repeat. The amendment that the Government will table to empower the commissioner to consider and make representations to the Assembly about any matter affecting children in Wales will allow him a locus in respect of bodies that have no functions within the Assembly's devolved fields of responsibility. I hope that that reassures the noble Lord that the commissioner's ability to make representations will not be confined to the Assembly's areas of devolved responsibility.

I appreciate that there may still be some nuances between us on the subject, but I hope that the noble Lord will accept my assurance.

Lord Roberts of Conwy: I am grateful to the Minister. The more that we hear about the proposed amendment on Report, the higher our expectations become. Knowing the ministerial team, I trust that they will not disappoint us. It sounds as though the Government have advanced their thinking considerably, but I shall wait to see it all in black and white. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Review and monitoring of arrangements]:

[Amendments Nos. 14 to 17 not moved.]

Clause 4 agreed to.

6.30 p.m.

Lord Roberts of Conwy moved Amendment No. 18:

After Clause 4, insert the following new clause--

"EXAMINATION OF CASES
In section 74(3) of the Care Standards Act 2000 (c. 14) (examination of cases) before paragraph (a) insert--
"(za) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies;"."

The noble Lord said: Section 74 of the Care Standards Act 2000 deals with the commissioner's power to examine particular cases and provides for regulations to assist him. Notable by its absence is any power for the commissioner to gain access to institutions that include children. The amendment would remedy that.

The Government seek to explain the situation by saying that they do not want the commissioner to become too involved in individual cases, except when there is a principle involved. They say that things have moved on since the Waterhouse report. The noble Baroness, Lady Farrington, stressed that point in a letter to those of us who spoke on Second Reading. We are told that there are new officers and procedures in place. In short, there is no need for the commissioner or his staff to carry out spot checks at institutions.

I should like an update on the current position of the implementation of the Care Standards Act. Is the inspectorate in place? The situation is worrying. Of

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course things are changing and will change. Many of the homes in which abuse took place have been closed and only 10 per cent of children in care are in institutional homes. The majority are now fostered. However, I am bound to warn Ministers that the confidence that we see developing these days prevailed in the 1980s as well. We all know where that got us. Courts put children into the care of local authorities convinced that they would be safer there than in the conditions in which they were found. There was complacency all round, which is frightening in retrospect.

I know that the noble and learned Lord the Attorney-General has studied Sir Ronald's report. He will be aware of the extent of the corruption that invaded certain homes and authorities. It was the nearest thing to an Internet virus in present day terms, and it affected everyone one way or another. Suspicion paralysed those in authority who should have known what was going on but did not.

Therefore, it is not surprising that one children's organisation, the NSPCC, which is very close to children, is urging Peers to amend the Bill in order to allow the commissioner an express right to visit and have access to institutions, such as residential children's homes, in cases of alleged institutional abuse. It is also urging that the commissioner should be able to require bodies or persons to provide information. The NSPCC says that that would have been of great assistance when concerns were first raised about cases of child abuse in North Wales in the 1990s. I believe that the concern started even before then.

Of course, assurances were given by Mr David Hanson in the other place about the way in which individual cases would be dealt with. The NSPCC considered those assurances and found them insufficient. It said:

"We appreciate that in the majority of cases access to institutions would not be denied but experience has shown that in the small number of cases where parties are obstructive that the greatest risk to children exists. The right of access to institutions is a common feature among many Children's Commissioners and Ombudsmen in Europe. By definition, Children's Commissioners should have oversight of child protection systems but would not be involved in the work of such inspectorates as a matter of course, only in the case of an alleged failure".

It is that last clause that really concerns us. We accept the point that it will not be the normal duty of the Children's Commissioner to visit homes and institutions but we believe that he should have the power to do so.

I have said this before and I shall say it again: I cannot see how the commissioner can do his job properly if he does not have the right of access to the children who ultimately are his responsibility, wherever they may be. How can he listen to them--a point much stressed by the Assembly committee--if he cannot gain access to them? The lesson of Waterhouse is that one can establish whatever system one likes but none is perfect, none is foolproof, and its operation must be checked again and again.

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Finally, the commissioner must be able to check his findings when he examines a particular case which involves a matter of principle. He must be able to check his findings and recommendations against what is happening on the ground; otherwise, his conclusions will be in danger of being too theoretical and detached from reality. I believe that it is inconceivable, particularly in Wales, that a children's commissioner should not have the power to visit children's homes. I repeat: it is inconceivable.

I believe that the Government are making very heavy weather of this point. Ministers in the Assembly, as well as, I am sure, Ministers in the Welsh Office, were able to visit such homes. Therefore, I very much hope that the Government will think again about the whole problem of access by the Children's Commissioner to children when a genuine case concerns him. I beg to move.

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