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Lord Thomas of Gresford: I very much support this amendment, to which my name is attached. I am also grateful to the noble Lord, Lord Roberts of Conwy, for taking us back to Section 74 of the principal Act. During discussions on this Bill we have been told many times that the role of the Children's Commissioner is to have a large oversee and not to become involved in the detail. However, Section 74--no amendment to that section is proposed in the current Bill--lays down that regulations must be put in place for the examination by the commissioner of the cases of particular children. Therefore, it is intended that the commissioner will look at individual cases.

The regulations are to set out the types of cases to be examined, the circumstances in which an examination may be made, the procedure for conducting an examination, and the publication of reports. Extensive powers are given to the commissioner to enable him to require witnesses to come forward and give evidence. Indeed, in respect of the attendance and examination of witnesses and the provision of information, the commissioner has the same powers as the High Court. Such powers are enforced by the certifying of an offence to the High Court. Thus, a person who so offends may be dealt with as though he had committed an offence which would be dealt with in the High Court.

Those powers are considerable--to summon and hear witnesses and to look at papers. What is missing? The power to enter premises and to have a look, or, as we lawyers would say, to have a view. Therefore, it appears that there is a positive lacuna in the principal Act in relation to the powers of the commissioner. He can look at individual cases and he can summon witnesses and call for papers. Surely he should be able to look inside the institution where the problem has arisen.

The answer we were given at Second Reading was, "Oh well, under the Care Standards Act there is now an inspectorate which will carry out detailed inspections of institutions, and the commissioner will have an oversight of what it does". But how can the commissioner have an oversight of his inspectors if he cannot see the premises which they have inspected?

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Surely, he must be able to have a look at an institution which is the subject of a report so that he may come to his own conclusion and make his own judgments.

The example of the Chief Inspector of Prisons has been referred to by the noble Lord, Lord Roberts. Mention was made of a penal institution which the chief inspector condemned. Today, he gave a star to another institution. He has the right to inspect and other people are able to carry out inspections of prisons on his behalf. Why should not the Children's Commissioner have a similar right? I support the amendment.

The Earl of Listowel: I also support the amendment. I find the arguments put forward by noble Lords who support the amendment compelling. I do not believe that in the course of his work a commissioner should feel inhibited from getting in touch with the grass roots. I am not sure how successful a commissioner could be if he relied on reports to make judgments about the type of institution that we are discussing. The noble and learned Lord may reply that, of course, the commissioner is able to visit institutions, and normally institutions would agree to such visits. However, I am not sure that the right message will be sent to the commissioner if he does not have the right to enter institutions freely.

Lord Williams of Mostyn: I believe that part of the difference between the respective views that have been expressed and those that I shall mention arises out of a difference in view about what the commissioner is there to achieve. Fundamentally, Sir Ronald Waterhouse's recommendation was not that the commissioner should be engaged in law enforcement or inspection. One understands the reason for that because the care standards inspectorate will soon be about its work. I shall come to that in a little more detail in a moment. Sir Ronald's view was that essentially the commissioner's role should be one of strategic overview and monitoring. That is what the Bill is concerned with; namely, the,

"Review of exercise of functions of Assembly and other persons",

and with the,

"Review and monitoring of arrangements".

There is a serious danger in this context of confusing the roles that were identified by Sir Ronald--namely, strategic overview and monitoring--with those of law enforcement or inspection. Many agencies are engaged in law enforcement and some agencies are engaged in inspection.

Apart from Sir Ronald's view, which I believe I have represented fairly, it is worth examining the Assembly's consultation paper on this matter, which followed the committee's report. Paragraph 27 on page 9 states the relevant aim:

"To reflect the recommendation in the Committee's report in respect of the Commissioner's examination function, we propose that the Commissioner should examine the cases of particular children only where he considers they raise matters of principle which have a more general application or relevance to the rights and welfare of children than those in the particular case at issue".

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The noble Lords, Lord Thomas of Gresford and Lord Roberts, rightly took us back to Section 74 of the Care Standards Act. There is no lacuna in this context if one understands the commissioner's work because, as the noble Lord, Lord Thomas, rightly said, the regulations will include provisions about the types of cases that may be examined, the circumstances in which an examination may be made and the procedure for conducting an examination and the publication of reports. Provisions requiring persons to provide the commissioner with information--they might well apply to those working for social services or a local authority--could impose an obligation on care standards inspectors to provide information. Also relevant in that context is the production of information for the purposes of an examination or for the purposes of determining whether a recommendation in a report has been complied with.

The noble Lord, Lord Thomas, rightly said that witnesses can be obliged to attend--the same mechanism operates in relation to the High Court--and to give evidence. There are rules and regulations about the protection of those who may have to attend.

Those considerations do not point to a gap or a lacuna; they point to a consistent approach in relation to what the commissioner's job really is. I sympathise with the comments of Members of the Committee--I agree that it is attractive to say, "Ah, but the commissioner should be able to go and investigate an individual child from a particular home by calling in unannounced". However, that is not envisaged in the Bill and it was not envisaged by the Assembly. I repeat that paragraph 27 of the Assembly's report stated that only when a matter of principle was raised of a more general application or relevance should the commissioner,

"examine the cases of particular children".

That is what the Assembly wished and it is what Sir Ronald recommended.

The noble Lord, Lord Roberts, asked me to give an update on where we were with regard to the care standards inspectorate. Planning is well under way and the information that I have is that the care standards inspectorate will be fully operative in a year's time. That inspectorate has various obligations and statutory duties but so do the 19 area child protection committees, most of which cover the same areas as unitary authorities; the police; the NSPCC; and the National Assembly's committee that is responsible for child protection and which has representatives from various divisions. It is unduly simplistic to say that the commissioner cannot do his job without a right of access. That begs the question about the true description of the commissioner's role.

With great respect, I repeat that that role involves strategic overview and monitoring; it does not involve the job that Sir David Ramsbotham carried out. He is a prisons inspector and he has to go and inspect in order to carry out his duties and to meet his remit. However, the duties and remit of the Children's Commissioner are not analogous to those of a prison

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inspector or those of an inspector involved with care standards or with the inspection of schools. I sympathise with the good motive that lies behind the proposal but I respectfully suggest that it is not properly conceived.

6.45 p.m.

Lord Thomas of Gresford: I have to take issue with the noble and learned Lord the Attorney-General. Section 73 of the Care Standards Act is entitled:

"Review and monitoring of arrangements".

That deals with the review and monitoring function of the commissioner. Section 74 is entitled, "Examination of cases". It does not refer to the principle that lies behind the cases. It states:

"Regulations may make provision for the examination by the Commissioner of the cases of particular children".

It refers not to a class of children but to "particular children". Section 76, which is entitled, "Further functions", makes it even more apparent that the commissioner deals with individual children. It states:

"Regulations may confer power on the Commissioner to assist a child to whom this Part applies"--

I stress that it refers not to a class of children but to "a child"--

"in making a complaint or representation to or in respect of a provider of regulated children's services . . . or . . . in any prescribed proceedings".

Subsection (3) states:

"The Commissioner may . . . give advice and information to any person".

He may even give financial assistance to an individual child.

It is not right to say that the Children's Commissioner is concerned only with the broad picture and with broad functions. A number of functions are outlined in the principal Act; they range from general review and monitoring, through the more specific section that deals with children and extend to the giving of advice and assistance, including financial assistance, to a single child. Let us not crimp the style of the Children's Commissioner and say, "You are going to swan around Wales looking at institutions or councils in a broad manner". His job includes looking at the individual child. I know that the noble and learned Lord the Attorney-General will take that point on board and consider it carefully before the Bill's next stage.

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