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Baroness David: My Lords, I return to Amendment No. 13, which I strongly support, as I have done at previous stages. It was good to hear the Minister say
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on Report that she accepted the principle. I hope that we will hear that acceptance of the principle turns into acceptance of the provision.
Recommendations from the commissioners in Wales and Northern Ireland must be taken seriously because of similar provisions in the legislation establishing their posts. Why not have a similar arrangement in England? The Minister also suggested that Parliament and government departments would need to ensure that commissioners' recommendations were taken seriously. But that is beside the point and assumes that they are on the same side as the commissioner, which inevitably they sometimes may not be. These are entirely appropriate powers for an independent champion for children and I hope that the Government will agree to them.
Lord Elton: My Lords, when the Minister replies to the noble Lord, Lord Lester, will she please bear in mind the great vulnerability of workers in this field and the existing law? We must ensure that they have some remedy when there is a miscarriage of judgment by the reporting person.
Lord Hylton: My Lords, I rise to support Amendment No. 13, which appears to give some teeth to reports by the Children's Commissioner and will, I hope, ensure that his recommendations do not remain so much paper that is simply disregarded by all concerned. On those grounds, I hope that the amendment commends itself to the Government.
Lord Laming: My Lords, like the noble Lord, Lord Lester, I have difficulties with the fact that Amendments Nos. 13 and 47 have been grouped together. They do not bear much relation to each other. I completely support Amendment No. 47, which was proposed very ably indeed by the noble Lord, Lord Lester. As the House knows, at an earlier stage I raised doubts about giving absolute privilege to the commissioner. All that the noble Lord said simply reinforces my belief that giving absolute privilege should be done only in exceptional circumstances. The case has not been made at all for the commissioner for England.
Lord Northbourne: My Lords, I want briefly to support the noble Lord, Lord Lester of Herne Hill. I listened with interest and alarm as he outlined the scenario. We already have sufficient problems with people—including parents—working with children who feel under threat of being sued for one reason or another. The commissioner's ability to make totally irresponsible statements—he may not do so, but he might—is yet another threat to those people who mean well and who want to work with children but who are becoming increasingly frightened of doing so.
Baroness Howarth of Breckland: My Lords, I support the amendment moved by the noble Baroness, Lady Walmsley. It is crucial that the commissioner receives responses to the recommendations that he or she makes.
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When we have a Minister like the noble Baroness, Lady Ashton, where reasonableness seems to prevail, we forget that situations can become unreasonable. The statute or regulation should be clear about setting expectations for all situations.
Baroness Ashton of Upholland: My Lords, I understand that the reason these two amendments are yoked together, as I think the noble Lord, Lord Lester, put it, is that they address the broad issue—we can believe this or not—of the commissioner's authority and freedom to act in order to help achieve change. I hope that that has enlightened noble Lords.
Amendment No. 13 has found a great deal of support in the House. As the noble Baroness, Lady Walmsley, indicated, it is a replica of the amendment that was tabled on Report. I stand by what I said then: in principle, I have a great deal of sympathy with what the noble Baroness sought to do, but I feel the measure constituted an over-bureaucratic process. I am sorry to see it back for that reason alone.
I shall not reiterate all the points that I made at previous stages about the importance of the commissioner being able to use other means, not least publicity and embarrassment to ensure that people respond. However, I understand the issues that have been raised. My right honourable friend the Minister of State for Children, Young People and Families has asked me to inform your Lordships that she is considering this issue. She will consider whether we need to make further provision regarding this matter and is minded to consider introducing an amendment in another place to take it forward. I shall endeavour to ensure that all noble Lords who have taken part in this debate are kept in touch with her deliberations. It will be a different amendment as she does not want to go so far as the noble Baroness in terms of bureaucracy, although I know that that is not what the noble Baroness sought. I shall keep noble Lords informed on that matter. I do not have final confirmation of what the measure might look like, but it is her intention to introduce such a provision in another place. I hope that it will address noble Lords' concerns and that they will feel able to withdraw the amendment.
Amendment No. 47 was ably spoken to by the noble Lord, Lord Lester. It would take away the protection of absolute privilege that we brought in. Noble Lords will remember that I introduced a government amendment in response to concerns raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Byford, who felt that the commissioner should be free to carry out his duties without the fear of having to spend time and resources defending himself in lawsuits. As noble Lords have indicated, irrespective of whether they supported the measure, we need to ensure balance regarding the way in which the different commissioners operate. Noble Lords have made it clear that they want to see that balance as regards other aspects of the Bill. However, the noble Lords, Lord Lester and Lord Laming, and the noble Lord, Lord Campbell of Alloway, who is not present, expressed reservations about that.
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We all want the commissioner to be independent and to act fairly in an inquiry. I believe that we are also searching for ways to ensure that the commissioner is not deterred from taking action due to fear of a defamation case. That is why we considered it important to grant absolute privilege to statements made by the commissioner in inquiry reports. We considered that that met a legitimate aim.
The noble Lord, Lord Lester, cited the Fayed case in the European Court of Human Rights. I have a copy of the Fayed judgment. I wish to quote a tiny part of it:
"The defence of privilege of immunity in defamation cases rests upon the idea that conduct which would otherwise be actionable escapes liability because the defendant is acting in furtherance of some interest of social importance which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. If the interest is one of paramount importance, considerations of policy may require that the defendant's immunity for false statements be absolute without regard to his purpose or motive for the reasonableness of his conduct".
Having said that, we are concerned—
Lord Lester of Herne Hill: My Lords, I am very grateful. I think I am also right in saying that they went on to say that that was a case where the Secretary of State had an absolute privilege when he damnified Mr Al Fayed—indeed, he was disqualified as a director. But did not the court also say that any restriction on the right of access to courts in a context of defamation had to be proportionate, had to meet the test of necessity and that it should not sweep too broadly?
Baroness Ashton of Upholland: My Lords, indeed. The noble Lord will know that far better than I. It is always dangerous to quote a case in which any noble Lord is involved. My point in quoting that extract was not to detract from what the court said later but to extend our consideration of how best we ensure that the commissioner is able to carry out his functions. We are concerned by the anxiety expressed on the matter by a number of noble Lords, not least the noble Lord, Lord Lester. That convinces me that we need to reconsider the matter carefully.
Some noble Lords will be aware that the Department for Constitutional Affairs is consulting on proposals for conducting effective inquiries, including the level of protection needed by inquiry panels to enable them to act freely for the purposes of the inquiry. I understand that that consultation will close at the end of July. I want to consider the matter in relation to the outcome of that consultation. Yesterday, members of my department's legal team spoke to members of the legal team of the Department for Constitutional Affairs. They discussed what we might do following the consultation. We want to consider the outcome of the consultation, to consider further not least the Fayed case but also the other issues that have been raised and to make any necessary amendments when the Bill is debated in another place. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
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