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Lord Williams of Mostyn: I shall certainly do that; we have genuinely tried to pay attention and to be helpful. I take the citations that were given by the noble Lord, Lord Thomas. However, his point does not deal with my citation from the Assembly report, which stated,

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That is what the Assembly is asking for and what we are currently providing. Members of the Committee may be of the view that the Assembly should have asked for something different; my point is that it is being given what it asked for.

The Earl of Listowel: Before the noble and learned Lord the Attorney-General concludes, I ask him for elucidation on a point that is slightly distinct from those made so far. If the commissioner has no experience of institutions in which children receive residential care--he may come from an entirely different background--how will he be able to make informed judgments on the performance of institutions that provide residential care unless he frequently visits such institutions and speaks with the children and the staff who work there? My support for the amendment stems from the sense that having a right to enter will make it clear to the commissioner that he is expected to familiarise himself deeply with the situation, even if his main job is to comment on the strategy for monitoring children in such circumstances.

Lord Williams of Mostyn: The noble Earl is not describing what the commissioner is supposed to be doing. That is what the care standards inspectorate, which, as I said, will be set up and operating fully by this time next year, will do. I understand the noble Earl's concern but the inspectorate will carry out regular checks of, for example, children's homes. It can react quickly to allegations of wrongdoing and make urgent, unannounced visits. The commissioner will liaise with the inspectorate. I stress that the commissioner exists to carry out strategic overview and monitoring.

The Assembly did not ask for these powers. It does not want the commissioner to be second-guessing the care standards inspectorate, which is what would happen. The care standards inspectorate was not present, even as a concept, when Sir Ronald was reporting. Time has moved on. I agree with the noble Lords, Lord Thomas and Lord Roberts, that no one who knows anything about the North Wales and the South Wales child care scandals wants to be complacent. And not wanting to be complacent or to drive us to duplication of effort, to give the commissioner work which neither the Assembly nor Sir Ronald Waterhouse recommended and which is not really the job description at hand is not inappropriate.

Lord Roberts of Conwy: I thank, in particular, the noble Lord, Lord Thomas of Gresford, for his support and Members of the Committee who have participated in this debate. I find it very difficult to see the Minister's point of view entirely. He told us that it is not part of the commissioner's job description--that it is not the work envisaged--for him to seek access to children's homes. On the other hand, we know that he has a plethora of duties and protection bodies with which to deal, including the inspectorate.

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How can the commissioner take a strategic overview when he cannot go into a children's home or visit a child in hospital? How can he take a strategic overview if he cannot secure experience of what is happening on the ground? I find it a very difficult question to answer. It may not be the work envisaged for him, but it can be part of it as he examines a particular case involving a matter of principle. It may be that the principle involved makes him inquire as to whether there are other cases apart from that particular one which gave rise to this particular principle. He will need to secure such information. Of course, there are other bodies from which he can secure such information.

At the end of the day, surely we are not going to deny him, either in the contents of the strategic overview or the examination of particular cases involving a matter or principle, the right of access to a child in specific circumstances.allowed to play on the course. What sort of membership is that? I do not want to carry that parallel too far.

Lord Williams of Mostyn: What springs to my mind is that one can go to the golf club but not to play rugby.

Lord Roberts of Conwy: I shall not quibble with the noble and learned Lord. There is something here which gives us considerable concern. We are glad to hear that the care inspectorate is on its way but it is still in the planning stages. It is quite some time since Sir Ronald Waterhouse reported and forced its set-up under the Care Standards Act 2000. Certainly things have changed. There is an area of concern here. I should like to consider the matter again and possibly return to it on Report. In the current circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Lord Roberts of Conwy moved Amendment No. 19:

    After Clause 5, insert the following new clause--

(1) Section 77 of the Care Standards Act 2000 (restrictions) is amended as follows.
(2) In subsection (1) the words ", or has been determined by," are omitted."

The noble Lord said: Section 77 of the Care Standards Act 2000 reads:

    "This Part does not authorise the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal".

The new clause--which is Amendment No. 19--proposes to leave out

    "or has been determined by".

I can well understand that the commissioner should not be involved in any way with matters that are sub judice and he should not seek to re-open matters that have been dealt with by a court or tribunal. He is a statutory body with some of the powers of the High Court. However, bearing in mind his broader

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responsibilities for children's rights and welfare, is that not a sweeping prohibition? That is what I am seeking to probe.

The matter was dealt with by Mr Jack Beatson QC in his opinion for the campaign group. He argued, with reference to the Thompson and Venables case, that had the case been heard in Wales the commissioner should have been able to comment and make representations in relation to the conditions under which the trial was conducted in so far as he perceived them to be in breach of the rights of the children in question.

The European Court of Human Rights found that there had been a breach of Article 6 on that occasion. Mr Beatson refers to recent cases concerning conviction for membership of an Internet child pornography ring. It may be thought inappropriate to comment on sentences imposed upon specific individuals. However, the commissioner's concerns with the rights of the child victims in those cases would make it appropriate for him to monitor the sentencing policy of the courts in such cases and to comment upon the effect that sentences passed may have on the underlying problem of child abuse and pornography. I am not sure that I agree entirely with those views, but I should be interested to hear the comments of the noble and learned Lord upon them.

The noble Baroness, Lady Farrington, dealt with this issue in her letter of 8th March. The thrust of the letter is that the Government must protect the integrity of court decisions in individual cases, and I wholly agree with that. The noble Baroness made reference to the Anna Climbie case; what might have happened had that case been dealt with in Wales and how the health and social services aspect could have been dealt with or looked at by the commissioner. I am mindful of the final paragraph of the letter where the noble Baroness said:

    "The Commissioner may also receive representations about the effect on children in Wales of the outcome of court and tribunal decisions, which he may wish to bring to the attention of the Assembly and relevant UK Government Departments".

Does the commissioner have to wait for representations to be made to him? It sounds like taking the option of "calling a friend"--"send me a representation so I can tell the Assembly or some other department of State about it".

I know that there is a lot to be said on this issue. All I have sought to do with this amendment is to probe because many people feel that the commissioner is unduly constrained in his ability to comment on legal and tribunal cases and that the limitations on him should be curtailed. I beg to move.

7 p.m.

Lord Thomas of Gresford: I too support this amendment and attached my name to it. The Attorney-General's previous intervention reminds me of the last occasion I put a ball down on the first tee at Braemar Golf Club and took a swipe at it. My companion said, "I can see you have played rugby before"!

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In a more serious vein, this morning I saw a news report concerning the aunt of Damilola Taylor in which she was complaining about the amount of compensation awarded--shades of last week's debate--under the Criminal Injuries Compensation Scheme. Under this clause the commissioner could not comment at all on such a matter, whether in principle or otherwise, because it had been determined by a tribunal. I do not see why there should be such a limitation.

I entirely agree with the noble Lord, Lord Roberts of Conwy, that if we are dealing with matters that are sub judice, obviously no comment, review or separate report from the commissioner is called for. However, once the court has determined a matter, whether it is the Bulger case or any another, the commissioner must at least have the potential to make his views known if he considers matters require commenting on or bringing to the attention of the Assembly; for example, the conditions in which an abused child has been brought up. If the parents of such a child are taken to court and are convicted, is the commissioner unable to comment on the conditions surrounding that child or the education the child received? That cannot be right.

This is perhaps an unnecessary restriction and in the light of the amendment that we are promised by the Government, and which seems to grow the more we talk about this Bill, perhaps further consideration can be given to this point.

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