Commons Amendment
3:37 pm

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. The amendment deals with the role of the commissioner within the Children Bill, an issue to which the House has quite rightly played close attention. The first group of amendments remove the reference to the word "rights" from the commissioner's general function and restore that function to one of promoting awareness of the views as well as the interests of children.

The Government are committed to the aims and principles of the United Nations Convention on the Rights of the Child. We value the convention and we willingly accepted an amendment in this House that the commissioner must have regard to the convention when determining children's interests. Contrary to some rumours, we have not removed this reference in another place.

However, as well as having regard to the UNCRC, the whole thrust of the Bill and the whole thrust of our stance with regard to the commissioner is that we want to go much further. We want to build on the platform of rights, but we are not satisfied that merely a focus on rights itself will meet the needs of our children.

We want, therefore, the commissioner to work for the well-being and interest of children in broader and more strategic terms. Clause 2 of the Bill as it left the Lords was amended in another place to restore the five "outcomes" as a focus for the commissioner's general functions. They are now part of Clause 2(3). These outcomes featured in the Green Paper Every Child Matters and are the foundation stone of the Children Bill. They seek to encapsulate in a limited number of words what matters to children and what matters to their parents, and they encapsulate it in outcome terms not in input terms, process terms or legalistic terms. That is the heart of the Bill and why it is such a radical Bill.

The outcomes will be the focus for local work and local co-operation in 150 local authority areas in our country, and the framework against which local partners must analyse the needs of the children in their area and agree priorities for closing the gaps for children in those localities, compared to where those outcomes are currently and where they should be, either by reference to other children, other areas and other countries.

In other words, it is above all a radical agenda for change and not a legalistic focus on complaints as the only element of the Bill. So it is fundamental to the Bill and it goes beyond the issue while recognising and building on rights. That is why we believe the outcomes should be at the heart of the Children's Commissioner's work alongside the regard that he must have to the UNCRC and that it must inform his work. It is not an either/or; it is both.

The outcomes do not in any way constrain the commissioner's ability to raise any issue he thinks fit, but they do give a sharp edge to the way he will assess our collective success, both at national level and in localities, in achieving real practical progress on the ground that affects children's lives.

The reason we have removed reference to "rights" in Clause 2 is that we want the commissioner's primary interest to be to ensure the system works for all children and young people. We do not want him to duplicate remedies elsewhere that are available, or to put him under pressure to undertake detailed casework, which will be unfeasible, given the child population of almost 12 million in England.

We do not believe that that is the most effective role for the commissioner's focus. There should be a panoply of other remedies available to children and their supporters and advisers to ensure that their rights, as given effect in domestic legislation, are properly pursued. The commissioner should not get bogged down in the detail of individual complaints, except when he thinks that he should address an issue of public policy.

We want the commissioner to raise the profile of children by promoting awareness of their views and interests, especially those of the most vulnerable, who may lack the skills or confidence to act on their own behalf. We want a commissioner who will identify systemic failures in public services at national or local level, systemic failures that identify where children's outcomes are not good enough and need to be changed. That is a massively important role for the commissioner. We want the commissioner to identify the problems that the Bill seeks to remedy and to act as a challenge to the system. The challenge is much more powerful when it is seen in those terms rather than as simply a further duplication of a complaints procedure process.

Amendments Nos. 2, 3 and 11 are consequential on Amendment No. 1, so I shall not speak to them unless the House wants me to.

Turning to outcomes and Amendment No. 5, I am glad that I have the opportunity to restate how committed we are to both rights and outcomes. We want both; it is not a choice. We do not need to make a choice. That is behind us as an issue. I have led up to why Amendment No. 5 was tabled and passed in Committee in another place and reinstated the outcomes to the commissioner's function. It requires the Children's Commissioner, in the exercise of his Clause 2 function, to be concerned in particular with the views and interests of children relating to the listed aspects of their well-being. Restoring them to Clause 2 is essential to establish the commissioner's function in the same framework as the rest of the Bill and fully incorporate it as part of the new outcomes-based approach to children's needs and services in England. That is part of our desire to see the Bill as the centrepiece of a programme of practical change with measurable, tangible outcomes.

During the previous debate in the House where the original amendment removing reference to those outcomes was passed, it was suggested that the choice was between outcomes and rights. As I said, it is not a choice. The two notions are complementary, not mutually exclusive. The Bill in the form before us today makes that clear. The United Nations Convention on the Rights of the Child provides a set of principles as a framework or reference point for the commissioner to base his work on and the outcomes provide the drivers for tangible change.

To ensure that is not a semantic point, it is fundamental to government policy that the outcomes, building on the rights, are the centrepiece of the Bill and the commissioner's responsibility must be aligned with that if he is to maximise his power to promote change. Lest there be any doubt, that is not an issue on which we intend to compromise because it is fundamental to children's needs in our society.

Turning to the requirement for the commissioner to have regard to the UNCRC, we do not want to prevent the commissioner from promoting the UNCRC if he wants. Rather, we have said that he must have regard to it. We have listened to this House on that point and made it mandatory: he must have regard to the UNCRC. In summary, the outcomes are practical. Let me not go on.

I turn to other commissioner functions and the issue of whistle-blowing and advocacy. Amendment No. 4 alters Clause 2(2) to remove paragraphs (c) and (d) and insert three new subsections. The text of Clause 2(2)(c) and (d) when the Bill left this House specified advice and advocacy services and inspection and whistle-blowing arrangements. Those particular areas, the result of an amendment to the Bill made in this House, are wide ranging. They suggest that the commissioner should monitor the effectiveness of delivery in those areas, which would change the focus of his functions too much. Reviewing those services would drag the commissioner into individual casework, a situation that, as I said—I hope that I have explained why—is undesirable.

On independence, we have always intended that the commissioner be as independent as possible. If we are too prescriptive of what he should focus on as well as how he should carry out his work, we are at risk of limiting his independence of action and judgment to concentrate on what he thinks, and what children tell him they think, is important. Amendment No. 4 restores that independence by being less specific about the areas on which the commission may want to report, thus allowing him far more flexibility. In other words, he can do what he wants, and will not be told what he must do. It restores his freedom of action.

However, in retaining the more general reference to complaints procedures as a subject that the commissioner may want to consider, we acknowledge that without an efficient complaints procedure, children will have difficulty making their voice heard and their legitimate grievances upheld. That matters. That is the proper role for the commissioner: to empower children as well as to act on their behalf when necessary. Noble Lords may be aware that draft regulations and guidance on the revised children's social services complaints procedure have now been issued for consultation and we anticipate that the commissioner may well want to be involved in due course in seeing whether those regulations work and deliver the services required.

Again, that illustrates my argument. The commissioner will look to see whether the complaints procedures deliver the outcomes and redress that children need, rather than getting bogged down in trying to second-guess individual complaints, except where he thinks that they involve an issue of public policy.

Amendment No. 6, which would replace "review and report" in Clause 2(3)(b) with the more flexible wording of "consider or research", is inspired by a similar wish to maintain the commissioner's scope and discretion. The wording "review and report" could appear to impose an obligation to produce a report whatever the circumstances. I cannot believe that any of us want that. He should make his judgments in accordance with the statutory duties.

On individual cases, the Government tabled Amendment No. 8 in another place to reinstate a subsection of the original version of the Bill stating that the commissioner should not investigate the case of an individual child. The Government fully appreciate that an individual case may be the symptom of a wider issue. That is why we listened to this House and, under Clauses 4 and 5, the commissioner can hold an inquiry into the individual case of the child if he believes that it has wider policy implications. No one can stop him doing that.

The House has not seen the Bill in this form before because, in a sense, we never got to that issue because of earlier debate. It is fundamental to that debate, because some noble Lords believe that we are depriving the commissioner of the power to go where he wishes, including the power to consider an individual child's case if he thinks that it raises an issue of public policy. The clause gives exactly that power to the commissioner but, at the same time, it does not burden him with the duty to consider every one of the hundreds and thousands of cases of complaints which, I promise your Lordships, would be brought to the commissioner if the House went along with the thrust of the amendments tabled by noble Lords, to which we will come. For that reason, the commissioner is at liberty to go where he wishes and is not burdened by becoming yet another ombudsman, except when he thinks that an issue of public policy is involved.

Let me give the House an example of why that matters. There are many children in our society with special educational needs. It is extremely burdensome for their parents to try to ensure that their child gets the best education possible. Often, they think that the state does it right; often, they think that the state does it wrong. There are processes for appeal to both local authorities and an independent tribunal when they think that those judgments have been made wrongly. Those processes are essential. There are thousands of such cases. The commissioner should not be getting involved in trying to interpose himself in the local authority complaints process or the Special Educational Needs and Disability Rights Tribunal process. That is their job. He should certainly get involved if he thinks that the tribunal is not effectively meeting the needs of children, but that is a different function.

We must keep our heads clear about those distinctions, otherwise we are in danger of dragging the commissioner into areas that will completely frustrate where he can have most power and effect most change. It is in his function of having a wider strategic view of children's issues and outcomes that he will have unique value. Many other bodies can already deal with complaints. If the House wishes, I can weary it with the detail, but I shall not for now.

It has also been pointed out that other commissioners can get involved in investigative casework. That is true in Wales and Northern Ireland, but not true in Scotland. An issue of scale is involved. There are fewer than 1 million children in Wales and Northern Ireland. But even if the numbers were exactly the same, our stance would still be the same: the strategic focus should be on wider systemic change and challenge where outcomes are not being met, rather than duplicating other investigators.

The Government tabled an amendment in Committee in another place that empowered the commissioner to assist a child to bring legal proceedings. The amendment was passed by 14 votes to three after a Division. Subsection (7) was the result of an opposition amendment tabled in this House.

As we have stated, we want the commissioner to have a strategic role. There are already bodies to which children can turn for legal advice, such as the Children and Families Court Advisory Support Service (CAFCASS) and the Official Solicitor. Duplication would make no sense. The commissioner could, if he wished, act as a witness if called in proceedings. It remains the case that as part of his general Clause 2 function, the commissioner may look into complaints and advocacy procedures to ensure that they work effectively.

Amendment No. 7 relates to child-friendly reports. We agree that reports published by the ccmmissioner should be as child-friendly as possible; after all, the commissioner is acting on children's behalf. However, the original provision placed too great a burden on the commissioner, affording him insufficient discretion to make his own decisions on how best to handle those reports. For good intent, I am sure, the original provision sought to specify,

"the usual language of the intended recipients".

But our lawyers believe that that could lead to all sorts of quagmires about what was "the usual language". Such a decision ought to be left to the commissioner's judgment. Again, the broader wording should be retained, leaving the commissioner discretion to act in a way that he thinks appropriate to the circumstances. That is how we should empower him rather than fettering him with second-guessing how he approaches the detail of his job.

Amendment No. 9, on responses to recommendations, was moved and agreed in Committee in another place. It granted the commissioner powers to obtain responses to the recommendations in his report. Again, if I recollect correctly, we listened to the House on this issue and took note; we were glad to do so.

On the commissioner's clout, it is fundamental that he has teeth as well as ears, to use the jargon. We have tabled amendments providing further powers to follow up his recommendations where appropriate. The amendment on flexibility of follow-up powers was phrased as simply as possible to allow flexibility in how the commissioner exercised that power and leaving the discretion to him.

On the technical issue of remit beyond the age of 18, we tabled amendments in another place that replaced Clause 2(10) as it was worded when the Bill left this House. Both versions provide that certain young adults should be included in the commissioner's remit because of their exceptionally vulnerable circumstances. The new clause requires that any reference to a child other than in subsections (8) or (9) of Clause 2, which are concerned with the UNCRC, should include young adults aged 18, 19 or 20 who have been looked after by a local authority at any time since the age of 16 or have a learning disability. I hope that it is clear to the House why those should be exceptions. The reason that we seek to include them is because of their vulnerability and the fact that they may be in receipt of specific services.

We have omitted young people in custody because they are otherwise in receipt of services for adults and therefore should not be the concern of the Children's Commissioner. There are other routes of remedy and redress. For that reason, although I note that the noble Baroness, Lady Walmsley, and the noble Earl, Lord Howe, would like the reference restored, I must resist. If we included every potentially vulnerable group of young adults, we would muddle the Bill's purpose and focus. If the House is interested in those issues, we must look elsewhere for remedies rather than seeking to make a dog's breakfast of this Bill.

I hope that noble Lords will feel able to accept these changes made and agreed in another place. Let me seek to return to where I started. We have listened to this House massively on the role of the commissioner; if I am prompted, I will illustrate just how much. The Bill as it comes to us with the recommendations of another place is absolutely right in terms of the role, focus and powers of the commissioner.

The thrust of the amendments has in some areas made us look thoughtfully at the Bill, and we have sought to respond. But we are still in danger, if those amendments were pressed, of seeking to move the Bill and to muddle the role of the commissioner so that they focused on the investigation of individual complaints. Rights are massively important, but the commissioner will add leverage to the very large number of other people who have the power to investigate children's rights by looking at whether the systems are failing.

The commissioner is even more crucial in looking at outcomes—do local authorities or government succeed in getting more 16 year-olds into higher education and skills training compared with other countries that are our competitors? That is a public policy question that matters massively. It is an outcome focus, not a rights focus. Nothing in the UNCRC touches that issue. But that is the challenge of this Bill to government and local authorities. We want a commissioner who focuses on those issues and challenges us to go further, faster and better to get those outcomes.

It is because we are concerned about outcomes for children while also wanting to support proper protection of rights that we are hard and firm on this issue, having been, I hope, listening and flexible on many other issues. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Filkin.)

Baroness Walmsley (Shadow Minister, Home Affairs; Liberal Democrat)

rose to move Amendment No. 1A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".

Baroness Walmsley (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I welcome the noble Lord, Lord Filkin, to this very lively team that has been working on the Bill for so many months. I thank him for the very clear way in which he has explained the Government's approach to the first group of amendments. He can take it that, if I have not tabled an amendment to a Commons amendment in this group, I welcome it. I hope that he will take that as read. I also pay tribute to the Minister's noble friend Lady Ashton, who has worked so hard with us all on this Bill. The fact that the Government have listened so hard to many of our proposals is a great tribute to her skills and ability as a Minister. It has been a great pleasure to work with her on the Bill.

The Bill is all about children, so I ask noble Lords to cast their minds back to a Christmas or birthday when they were a child. Perhaps you very much wanted as a present a bike or a doll, but it was probably a particular kind of bike or doll. When the day came and you saw the bike-shaped or doll-shaped parcel, your excitement mounted. When you opened the parcel, there might have been a frisson of disappointment when you saw that instead of the red bike that you wanted, it was a blue bike, or instead of the Barbie doll that you wanted, it was a baby doll.

We were all very excited when we saw the children's commissioner-shaped box in the first version of the Bill. But there was a frisson of disappointment when we saw that the commissioner's powers and level of independence as proposed by the Government were not what we and many hundreds of children's organisations around the country would have wished. They are certainly very inferior to the powers and independence of 40 other children's commissioners in 26 countries. I can see the Minister disagreeing with me but that is how things are in debate in your Lordships' House.

Today we have a cross-party alliance of noble Lords who made changes when the Bill was before us previously to bring about what we think were great improvements to the powers and independence of the commissioner. Unfortunately, in another place all that was turned on its head and amended in Committee, with desultory discussion on the Floor of the House on Report. I ask noble Lords to consider whether it is appropriate to ask the Government to reconsider the commissioner's powers.

We have tried to compromise with the Government to see where they have come from and to give them some comfort in the drafting of the amendments that we have tabled. I am sad to hear the Minister tell us that he is highly unlikely to compromise. The noble Lord mentioned, for example, that there was no need for choice between rights and the five outcomes. That is why we have accepted that and left the five outcomes in the amendment that came to us from the Commons but inserted "rights" as the principle on which the commissioner should base his or her work.

The Joint Committee on Human Rights does not even think that the five outcomes are necessary. It stated:

"We conclude that it is unnecessary for the five outcomes listed in clause 2(3) of the Bill as originally introduced to be reinstated. If the Government feels they must, they should be clearly placed within the context of the CRC".

Amendment No. 5A seeks to restore rights so that the five outcomes are seen clearly in the context of that convention. We have also circumscribed very carefully the circumstances under which the commissioner could look into the case of an individual child, to which I shall turn in a moment.

Amendments Nos. 1A, 2A, 3A, 4A, 5A and 11A are about children's rights. Why do we need rights in this Bill? Why is raising the profile of children, to quote the noble Lord, Lord Filkin, about three minutes ago, not enough? There are several reasons for that. First, we do not want the commissioner to be limited to what the Government wish to target or measure. It is perfectly reasonable for the Government to want local authorities, local children's authorities and everyone else to base their work on certain outcomes that can easily be measured. But unless those are seen within the context of children's basic rights, as so well described in the 54 article Convention on the Rights of the Child, they are not enough, which is why we need to put rights back in.

Rights relate to all children. The UNCRC was signed by every country in the world apart from two. That can achieve long-term change for children, rather than just tinkering about with children's services. In addition, rights come with responsibilities. I do not know if your Lordships have seen this very handy little pocket guide to the UN Convention on the Rights of the Child, which is produced by UNICEF. On the front, it says, "A little book of children's rights and responsibilities", which is key to an understanding of the UNCRC. It refers to families' responsibilities and children's responsibilities within their family. That is why we think that that is a much better underpinning for this very welcome Bill than simply a set of five measurable outcomes.

All the other commissioners in the world have the duty to promote and safeguard children's rights within their brief. That is very important. Our commissioner should be able to interact on an equal basis with his or her colleagues across Europe. It is very notable that the president of the European Network of Ombudspeople for Children has written to the Minister with responsibility for children in another place—Mrs Margaret Hodge—explaining that unless our commissioner is given similar powers, it is unlikely that he or she will be eligible to join the network and work constructively with other ombudspeople for children. That would be a great pity.

My next point concerns what children want. I can quote some examples of what children have said. In June 2002, children and young people gave evidence to the Parliamentary Joint Committee on Human Rights as part of an examination into the Children's Commissioner. One 15 year-old said:

"I think a children's rights commissioner would create a culture of respect for children and young people by turning round most of the public's perceptions of how we are. By this, I mean turning round ideas that we have no rights and are violent good-for-nothings".

Another child, in a session with the Minister for children which was organised by UNICEF, said:

"What is the point in having a Children's Commissioner if they can't do their job properly?".

In 2004, the Hansard Society's HeadsUp forum held an online consultation with about 100 children. One young person summed up their aspirations for the commissioner with the words:

"A Children's Commissioner should be someone who believes that the rights of children should be counted. They should be committed to helping children and finding out what matters to them".

So children want a commissioner whose duty is to promote and safeguard their rights.

It is quite illogical, particularly in Amendment No. 11, for the Government to allow us to insert the UNCRC, a convention of 54 articles that are wholly based on children's rights, and then remove the word "rights" from the first part of the sentence. That makes the Government's concession, which was very welcome, in allowing us to change "may" to "must" in relation to the commissioner having regard to the UNCRC, quite meaningless.

The Government have not convinced us that there is something so different about English children that they require a different sort of champion. There is no basis on which one can possibly regard the Government's proposals as better than all the other children's ombudspeople in the world. Mrs Hodge may think that she knows better than everyone, but I would prefer to rely on the knowledge and experience of all those other 40 ombudspeople working successfully around the world.

Perhaps I may turn now to Amendment No. 8A with regard to individual cases. This is another situation in which we have listened to the Government's concerns and have tried to address them. I really would like to echo the words of the Minister. None of us wants the commissioner to be bogged down in individual cases. But there would be no need for him or her to be so if Amendment No. 8A is carried.

On looking at the amendment, your Lordships will see that we have circumscribed very carefully the circumstances in which the commissioner could take up an individual case. I accept what the Minister has said about him or her being able to conduct inquiries if a particular case has implications for the wider community of children and public policy. However, sometimes it is necessary to take up a case and to establish a principle. In putting down this amendment, that is what we want the commissioner to be able to do.

Amendment No. 10A is about legal proceedings. Your Lordships added the ability to assist a child with legal proceedings as a last resort when the Bill left this House. The conditions were carefully circumscribed so that the commissioner would not be able to take his eye off the big picture and get involved in a lot of legal actions. But we still think that that is a necessary part of the toolkit of a powerful and independent champion for children.

As regards independence, I draw your Lordships' attention to the legislation putting in place the three most recent Children's Commissioners in Mauritius, Malta and Croatia. Every one of them talks about the independence of the commissioner. Croatia's legislation states:

"None is allowed to instruct or give orders to the ombudsman for children in his work".

Malta's legislation states that,

"the Commissioner shall act independently and shall not be subject to the direction or control of any other person or authority".

I know that we are not in a position today to go back to the issue of whether the Secretary of State can or cannot direct the commissioner, but it is regrettable that that remains in the Bill.

Amendment No. 26A is about putting young offenders within the remit of the responsibility of the Children's Commissioner. We very much welcome the acceptance by the Government that young people leaving care and with learning difficulties should be the responsibility of the Children's Commissioner. That is not demeaning to them or patronising on our part, which was a suggestion made in another place.

Your Lordships will note that what holds them together is the fact that they have had a particular disadvantage in life. Therefore, they need the continued support of the Children's Commissioner for just a little longer than those children who have not had those disadvantages. The same applies to young offenders. Many young offenders have been in care; most have been excluded from school; and many come from families who have not been able to give them the guidance and support that the best families in this country can give to their children.

The simple logic of the cut-off age of the 22nd birthday that we have chosen is that that is the age at which young offenders transfer from a youth offenders institution to an adult prison. From then they are regarded as an adult, but not before. Before that they are regarded as a child or a young person. So it is logical that the champion of children and young people should be able to support them.

In summary, these amendments encapsulate what children say they need in a Children's Commissioner, and what the experts representing children say they need. This is also what experienced and successful ombudsmen for children right across Europe say is needed—and they should know. Are the roles of every single one of those commissioners muddled, to repeat the word used by the Minister, because their briefs are based on children's rights? Why do the Government think they know better than all those experienced people?

I hope that noble Lords will consider very carefully whether they are able to send these amendments back to the House of Commons for the Government to give this point further consideration. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Baroness Walmsley.)

Earl Howe (Shadow Minister, Family; Conservative)

My Lords, what we must not do at this stage of the Bill, and it is something that the noble Baroness has successfully avoided, is to reprise all the arguments from our debates at earlier stages. However, in endorsing all that the noble Baroness has said, I would like to make three brief points.

The first point is to say that what the Government are seeking to do in relation to the commissioner's functions makes no logical sense. In the Bill as it stood originally, where, as the House will recall, the commissioner was given a power but not a duty to have regard to the UN Convention on the Rights of the Child, it was perfectly tenable for the Government to resist the mention of rights elsewhere in the clause. Much as we may not have liked it, Ministers drew a line which made clear that the commissioner's functions would be about promoting awareness of children's views and interests, not about safeguarding their rights.

But it seems to me that when the Government accepted the amendment to change "may" to "must" in subsection (8), the whole nature of the commissioner's role became quite different. Originally, the mention of the UNCRC had the appearance of an afterthought. Now the scales are tipped the other way. If we read subsection (8) as the Government want it to read, the commissioner will be looking at children's interests within the context of children's rights. I share the doubts expressed by the noble Baroness about exactly what that means, but the whole emphasis has changed. That is why I believe it makes no logical sense to resist going the whole way and saying, as the Lords amendment did, that the commissioner will concern himself or herself with promoting and safeguarding the rights of children as well as their interests.

The second point I want to make is to say that the amendments tabled by the noble Baroness attempt to meet the Government half way, which is important. I might have hesitated before sending back to the other place exactly the same wording as before, but I have no difficulty in asking the other place to consider the amended wording, which retains the key concepts to which Ministers are firmly wedded and which we previously cut out; that is, the views of children and the key outcomes which children have said are important to them, and to which the Minister himself referred.

The Government may voice the fear, as the Minister has today, that these amendments will involve the commissioner getting bogged down in investigating individual cases. I do not believe that that is so. I do not know of anyone who wants the commissioner to get bogged down in individual complaints and grievances. That is not what he is about, and I hope that the wording of the amendment forestalls that criticism.

My last point is about why it is right to ask the other place to look at this matter again. This is an extraordinarily important moment in legislative history. The creation of a Children's Commissioner for England is something for which many thousands of people up and down the country have been praying for a very long time. Yet what the Government first said they were going to give us and what they are actually proposing to give us now are two quite different things. The model envisaged by the Government will not only make the commissioner a fish out of water as regards all the other children's commissioners in the country and, indeed, in Europe, as he will be much weaker than any of them, but also in an international context he will be unrecognisable as a real commissioner. As such, as we understand it, he will not be allowed the join the European network of ombudspersons for children.

That really is a crazy state of affairs. It might be one thing if the time devoted to the debate on the Floor of the other place had done justice to the importance of the issue and the clear message conveyed by noble Lords, but by no stretch of the imagination could it be said to have done so. The whole debate on the functions of the commissioner held last week in the House of Commons took barely half an hour. Members of another place need to take another look.

I believe that this is a golden opportunity for Parliament and for the Government to deliver what Ministers themselves have trumpeted: a powerful and effective champion on behalf of children. If in due course the noble Baroness decides to divide the House, I shall most certainly follow her.

Baroness Howe of Idlicote (Crossbench)

My Lords, I think that all noble Lords would join in thanking the Government for the changes to the Bill that they have accepted, and for the explanation we have heard today in this House and made earlier in another place of why they have made these changes. However, another point needs to be emphasised. The case of Victoria Climbié has been a focus for so many of the reasons why noble Lords want to push certain issues further. It is at least arguable that she would have been saved had she been listened to and taken seriously. In that respect, the example of how the Victoria Climbié case illustrates the Government's emphasis on listening to children is absolutely right. We must become better at listening to children and taking them seriously.

But that is not enough. Children need information about their rights, they need effective services and systems designed especially for them, and they need the adults in their lives to respect them. They also need a powerful and independent champion to promote and safeguard those rights at all times. It is for those reasons that we feel so passionately about this.

Contrary to what the Minister has said this evening, and what has been said by the Minister for children in another place, there is nothing limiting about the proposed focus on rights and interests. The United Nations Convention on the Rights of the Child covers all aspects of childhood. Outcomes are important, but the rights must come first, along with the responsibilities that exist alongside them.

I tend to forget that the UK ratified the UN convention in 1991. Indeed, as president of the UK committee of UNICEF, I was personally involved at the time. We looked at all this in detail. However, I have to admit that I have forgotten a lot of what is set out in certain articles, and that there are 40 rights in total, a point made by the noble Baroness, Lady Walmsley.

Literally everything is covered by the convention, including that the best interests of the child should be a primary consideration in all matters affecting that child. The right to education is covered, as are the aims of education, which are described. There is the right to play and leisure, which was a subject that came up a lot in our debates on the Bill. I mention also the right to maximum survival and development set out in Article 6, while the right of children separated from their parents to special protection and assistance is dealt with in Article 20.

I am sure that my noble friend Lord Northbourne will be pleased to learn that the state has a responsibility to support parents in the upbringing of children. That is set out in Article 18. And let us not forget that it was due to noble Lords in this House that one mention of parents is now made in the Bill; only one, but at least it is there.

Further down the list of rights are those covering children who get into trouble with the law. That point was made very effectively by the noble Baroness, Lady Walmsley. When we look at the facilities available to young people in prison, we see that they are very inadequate indeed. The more likely it is that young people are moved from prison to prison, the less likely it is that they will receive any of the extra support they need. The importance of parents—this will again please my noble friend—is stressed in three separate articles—Articles 5, 7 and 18.

The UN Convention on the Rights of the Child took 10 years to draft. We know that all but two countries—sadly, the United States is one of them—have ratified it. It is an absolute milestone in what we should be doing. It sets the agenda for measuring the outcomes on which the Government are so keen. However, I am worried that it seems as though the Government have settled for a half-decision.

I have warmly welcomed the Bill, as have many other noble Lords. Perhaps I am about to be a little unkind, but I do not believe that I am. The Government seem to be saying, "Let's have a Children's Commissioner, but let's make sure he or she does not stray into difficult policy areas. Let's ensure he or she does not get involved in difficult individual cases. Let's ensure that he or she does not go into the more questionable areas of the Government's human rights record. Let's ensure that we do not have to find too much extra money". The commissioner will have a budget of £2.5 million for 11 million children. Will that go very far?

I hope that the Minister will be able to persuade his colleagues that a little more "give" is necessary, so that we can all celebrate what could be an effective and important Bill.

Baroness Whitaker (Labour)

My Lords, I too am puzzled by the government amendments with regard to rights. I should like to ask my noble friend in what way is the commissioner to have regard to the United Nations Convention on the Rights of the Child, which is entirely about rights? In another place, our honourable friend Margaret Hodge said that,

"we do not wish to establish in England a commissioner whose primary purpose is to police individual rights".—[Hansard, Commons, 2/11/04; col. 204.]

That is fair enough. But after these amendments, the commissioner may not promote, safeguard, encourage the taking account of, or advise the Secretary of State about or review and report on. She or he may not even consider what the rights of children are. In what way, therefore, is the commissioner to have regard to the articles of the United Nations convention, the only purpose of which is to assert specific rights?

Baroness Finlay of Llandaff (Crossbench)

My Lords, I am concerned about not having rights on the face of the Bill. The UN convention is exceedingly important, but if it is not there we will send a mixed message to society that it is somehow less important. Children do not have a vote and have no one to protect their rights. I had understood the role of the commissioner to be a huge step forward in meeting that commitment to children in this country, and I am uncertain what will happen if it is not on the face of the Bill. It is sad that other countries are planning implementation of their action plans on the UNCRC, including the new member states. They are storming ahead. We have this incredibly historic Bill before us and we have somehow deleted the word "rights". I hope that the issue will be looked at again.

The Bishop of Worcester (Bishop)

My Lords, I, too, wish to say a word in defence of rights. I speak as one who believes that the patriation of the European Convention on Human Rights by Her Majesty's Government is one of their signal achievements—it makes me proud to live in a country that has done so—and it seemed to me that the Bill was an attempt to move us along the track on which that Act had started us.

Many people, not least within the Churches, are very worried about an emphasis on rights. Many people say that the notion of human rights is being used for purposes which are alien to the intentions of the original framers of the convention. I believe that they have the right to be worried, except that when it comes to the defence of the rights of the most vulnerable, and especially of children, we are right in the area where the European Convention on Human Rights should play its part. I believe that the UN Convention on the Rights of the Child is a follow-through of the determination to secure for human beings—and that means, especially and above all, the most vulnerable human beings—their rights.

The second matter I should like to raise in defence of restoring the word "rights" to the Bill is that, whether or not we write it on the face of the Bill, no commissioner worth her salt will be able to do anything along the lines of pursuing the outcomes that the Government wish to see without being not a police person but an advocate for the rights of the child. I do not see how the job can be done without making it clear to our society the points at which it is still not succeeding in enshrining human rights in the case of children.

I believe that that is why the organisations which advocate the cause of children have so vigorously expressed their regret at the Government's determination regarding the amendments before the House today. Their advocacy has to be taken seriously. They understand what advocacy involves and they understand that it cannot be done without giving central place to the rights of the child. It is utterly defeatist to assume that the only way you can become involved in advocating the rights of the child is by becoming ground down in the detail of individual cases. It is precisely individual cases—not in being ground down by them, but attending to them—that yield the policy insights we need for securing not only the rights of the child but, on that base, the outcomes that the Government have in mind.

I hope that the final thing I have to say will not alienate noble Lords by being something of a piece of biblical exposition. Like many other noble Lords, I stand in a tradition which has asserted that there is a primacy to the child, and that those who do not attend to the primacy of the child are not attending to the primacy of the child within them, and therefore are not attending to that of God in them and in other people.

We have suffered a great deal from exposition of those texts in terms of certain qualities that children have, which is not their central point. The most reverend Primate the Archbishop of Canterbury has written very movingly about our culture as one in which children are losing their childhood. Insisting that rights are on the table is our way, in our society and in our world, of insisting that children are to come from the periphery of our society to its centre; are to be the criterion of judgment of the health of our society; and therefore are to be defended in their rights and not simply measured by how much better outcomes in this or that way we manage to achieve.

By stressing the importance of rights on the face of the Bill, we are insisting on the centrality of children. This is important if the human rights of all of us are to be safeguarded. I very much support the noble Baroness's amendment.

Lord Morgan (Labour)

My Lords, I hope that something may be said from these Benches. I shall speak very briefly, because this is a topic that generates many speeches. I am concerned, as someone who sits on these Benches, at the surrenders made in the House of Commons which have significantly weakened aspects of the Bill, particularly the role of the commissioner. I wish to make two points.

First, I think that the Government have a tendency to elaborate splendid liberal policies in theory and enshrine them in legislation which then, in practice, slip away and are undermined. We will be discussing one a bit later on devolution, which seems to be a classic case of how principle is undermined in practice. But this is a Government who have passed the Human Rights Act; it is a noble feature, as the right reverend Prelate said, of their policy. Yet there is this extraordinary reluctance to include it, which seems to undermine the intellectual and philosophical context in which these matters are discussed.

This also achieves something else, which is very dangerous. Something enshrined in statute somehow slips away into understandings, informality and convention. Thereby, a very important instrumental sanction is weakened as well. That seems a great pity and an inconsistency on the part of the Government.

My second point is more practical. Why do we have different principles—different concepts—for the four commissioners in these islands? The commissioners in Wales—partly through pressure in this House, notably, I recall, from my noble friend Lord Prys-Davies—in Scotland and in Northern Ireland have a much stronger intellectual context and legal and instrumental framework than the commissioner for England. Frankly, the English—and I am not an English person—have been fobbed off with second best. Why should this be? Why should the commissioners for Welsh children, for Scottish children and for Northern Irish children be altogether stronger in their moral authority and their instrumental powers?

It seems to me that this will lead to inconsistency and also to unfairness for the far greater number of children in England. The Minister's point about there being many more children in England seems to work against his argument rather than in favour of it. So I have much sympathy with the amendment, and I hope that the Government will rethink at this late stage.

Baroness Warnock (Crossbench)

My Lords, I would like to point out the inconsistency, which is exactly what the right reverend Prelate said, between having the Human Rights Act on the statute book and not mentioning the rights of children in the Bill. There is very likely a historical reason for this. For a very long time, numbers of people who were interested in the law and jurisprudence were very hostile to the concept of human rights. We kept the Human Rights Act at bay as long as we could because we wanted to think of rights as essentially legal.

When we got on to moral rights, or natural human rights, we became uneasy, because the tradition of Bentham and the positivists was very strong. But we have crossed that barrier; we have become more American. We are now prepared to talk about human rights. Of course this leads to litigation in particular cases. Inevitably it will, until a certain amount of case law is established in which we begin to be a bit clearer about what human rights are.

If we have accepted that there is such a thing as a human right, then why is it impossible to accept that there is such a thing as a children's right? Children, after all, are human. In the extreme cases of vulnerable children, there seems every reason to forget our arid positivism and recognise that children, as children, have inalienable rights not to be treated in the way that we know that some very vulnerable children have been treated.

I simply cannot see any intellectual justification for leaving out rights from the face of the Bill. I urge the Government to think about the inconsistency of having accepted human rights and now refusing to accept children's rights.

Lord Hunt of Kings Heath (Labour)

My Lords, earlier the noble Earl, Lord Howe, described this Bill as historic. I very much agree with him. It is a great pity, in a sense, that at the final stages of what I think will prove to be enormously effective legislation, there is a disagreement between noble Lords who all, I am sure, want to see the best for children.

My noble friend Lord Morgan said that this was a splendid idea which was being undermined in some of the practical amendments to the Bill that were made in another place. I take the opposite view. It is wonderful to have rhetorical and grand phrases to describe the role of children's commissioners. I have no doubt that when it comes to the comparison between the proposed commissioner in England and all the other commissioners of the world, the language we use is not quite so grandiose.

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, what does the noble Lord say about the incredible distinction between this proposed English commissioner and the Welsh, Scottish and Northern Irish commissioners?

Lord Hunt of Kings Heath (Labour)

My Lords, I was coming to that. The proof of the pudding is in the outcome of the work that will be produced by those commissioners.

It is very easy to use eloquent language to describe the role of the children's commissioner, but it is a very difficult role to undertake. The emphasis that is given in the Bill by the amendment made in the other place on outcomes is surely the right approach.

At the end of the day, this role will be about influencing and helping to change the way in which governments, different departments, local authorities and all the agencies involved work. Putting the emphasis on the practical outcome of that work will in the end lead to a much more effective commissioner.

Very recently, the Constitution Committee, chaired by the noble Lord, Lord Norton of Louth, discussed the need for post-legislative scrutiny—in other words, coming back after two or five years to look at how effective legislation has been in practice. I would very much welcome that opportunity. I think that what is contained in the legislation as amended by the other place gives us a much better opportunity to change children's services for the better.

I would also like to comment briefly on Amendment No. 8A, in the name of the noble Baroness, Lady Walmsley, which deals with casework. I recognise that the noble Baroness has attempted to meet the point, in that paragraph (b) says that any investigation by the commissioner,

"would not duplicate work that is the function of another person".

However, I suggest that this would prove quite unworkable in practice. Having to make a judgment about whether any particular intervention duplicated the work of another agency would be very difficult.

There is a genuine concern that if there is any uncertainty and it is felt that the commissioner has a right of intervention in individual cases where general public policy is not involved, it will lead to confusion over responsibility and accountability. The noble Lord, Lord Laming, is in his place. What I took from his remarkable report into the tragic circumstances of the death of Victoria Climbié, first and foremost, was a lack of clear accountability.

The changes made in children's services are about giving us a very strong line of accountability. If we were to accept the amendment, even though modified by the noble Baroness, it would detract from that accountability. I hope that we will not accept that.

Baroness David (Labour)

My Lords, I am sure the Minister must be very happy to have one voice in support, but I am afraid that he will not have mine. When the Bill was considered in this House during the summer, I felt there was agreement that we had much improved it by cross-party amendments. In particular, there was very strong agreement that a Children's Commissioner for England should have the same general functions as those in Wales, Scotland and Northern Ireland to promote and safeguard the rights and interests of children.

However, the Bill has come back to us with the general function that was given to the commissioner in the original Bill in March restored: the commissioner shall promote "awareness" of the views and interests of children. That is much weaker than the role of the other commissioners in the UK and weaker than those in Europe, as the right reverend Prelate and the noble Baroness have said.

I do not see how the Government can square their promise in the Green Paper of a powerful, independent champion for children with what is now in Clause 2. Even at this late stage, I hope very much that the Minister can be persuaded not to spoil this much welcomed initiative and to restore the promotion of rights to the commissioner's general function. I hope that the Commons can be persuaded, when they look again at the Bill, to think rather carefully about this matter. That view has been very strongly put by every speaker so far, except my noble friend Lord Hunt. I very much hope the Minister can be persuaded by us and that the Commons can be persuaded to put "rights" back into the Bill.

Baroness Massey of Darwen (Labour)

My Lords, this House has considered the Bill with rigour and insight. I have had the pleasure of being present for most of the discussion on it. It is fitting to pay tribute to all noble Lords who have discussed the Bill and discussed children's welfare and rights with such passion and enthusiasm.

I am as keen as anyone that we should have a commissioner with power, but I simply cannot agree that the proposed commissioner will be a fish out of water, as my noble friend Lord Morgan described him.

Lord Morgan (Labour)

My Lords, no.

Baroness Massey of Darwen (Labour)

My Lords, I am sorry. My noble friend described him as second best. I think the noble Earl, Lord Howe, described him as a fish out of water.

The key change that we succeeded in making to the Bill was that the commissioner "must" have regard to the UN Convention on the Rights of the Child. "Must" have regard was changed from "may" have regard. Surely that is an umbrella function which removes the need to insert "rights" in all the other parts of the Bill.

The commissioner should have a strategic role in influencing systems at a local level, which will in practice secure children's rights and positive outcomes for children. Those systems will cover most of the concerns raised by the noble Baroness, Lady Walmsley, in moving her Amendment No. 8A. Victoria Climbié was let down by systems at a local level, which failed her. As the right reverend Prelate said, children come in from the periphery at a local level. That is what the commissioner will influence.

The commissioner should not dabble in the kind of detail that some noble Lords seem to be proposing, but in principles. In her extended, wonderful metaphor about Christmas presents, the noble Baroness, Lady Walmsley, spoke about a "frisson" of disappointment in the commissioner. I think that I can live with "frisson". As long as I had the bike, I could get used to the colour.

The Earl of Listowel (Crossbench)

My Lords, I shall speak briefly to Amendment No. 10A, which is in the name of the noble Baroness, Lady Walmsley. In doing so, I welcome Amendment No. 26, which concerns care leavers and young people with learning disabilities. I was encouraged to hear in our previous debate on the Bill about the work of the noble Baroness, Lady Ashton of Upholland. I was encouraged, too, about how receptive she was to the proposal, given that there is some difficulty in discriminating between older young people and children.

The amendment would be very helpful to the Children's Rights Commissioner, with whom I was speaking today. He emphasised that there are areas he cannot look at but which affect children leaving care. The new Children's Commissioner will be able to look at those areas; for instance, housing for those young people, who are often poorly educated, have difficulty finding employment and can gain access only to the poorest housing. The commissioner will be able to look at such issues and I very much welcome that.

However, I am deeply saddened that the Government have not been able to accept the provision for under 22 year-olds in young offender institutions. If I remember it correctly, about 40 per cent of them have come through care, but when I spoke to the governor of a young offender institution during a recent visit, he did not know how many people in the institution came out of care. There appears to be a loss of care leavers in the prison system. They are often very immature and vulnerable.

When I spoke with Her Majesty's Inspector of Prisons about young offender institutions, she spoke about the positive effect of the Youth Justice Board's dealings with under 18 year-olds. Where they used to share institutions with the under 22 year-olds, there was a knock-on effect for those under 22-year-olds. It is to the benefit of the under 18 year-olds that they are now are moving out of the prison estate, but to the detriment of under 22 year-olds. I regret that and I hope that the Government will be able to think again about this aspect of the Bill.

Lord Laming (Crossbench)

My Lords, as noble Lords will know, I am extremely grateful to the Government for bringing forward the Bill and I admire greatly the thought that has been given in this House to strengthening the Bill as it has gone through its various stages.

However, I am concerned at what seems to be a slight over-preoccupation with rights. Until the noble Lord, Lord Hunt, and the noble Baroness, Lady Massey, spoke, I was beginning to feel rather isolated and lonely. Of course, we all agree that rights are very important, but we must have in mind that the human rights legislation applies to every citizen, including children. There is already a director of children's rights in the Commission for Social Care Inspection. The noble Baroness, Lady Warnock, may be right that, as a country, we were rather slow to accept the importance of rights for every citizen, but we need to be careful not to go to the other extreme and see rights as the central issue in every piece of legislation.

In looking at the Bill, we need to pay particular attention to Clauses 4(1) and 8, which have been deliberately included in the Bill. I am sure that your Lordships will not underestimate the significance of Clause 8, which states that the commissioner "must have regard" to the United Nations Convention on the Rights of the Child in everything that he does. Nothing could be clearer than that in informing the work of the new Children's Commissioner in this country.

But, and this is a big "but", the role of the Children's Commissioner in our society, as set out in the Bill, will be so much wider than the matter of rights. It is very important that the ambitions which have been spoken of so ably in this House as the Bill has continued through its different stages are reflected in the work of the commissioner. Time after time, we have emphasised that the work of the commissioner should be broadly based on ensuring the well-being and proper development of all children and enabling them to fulfil their potential and become effective members of society. That is more ambitious than some of the roles that are accorded to other commissioners in other countries. Balance has to be struck between rights and that broader agenda. We are not creating a Bill of rights. We are creating a Bill for a Children's Commissioner, not a rights commissioner or an ombudsmen, and we need to bear that in mind. Mention has been made of Victoria Climbié, but all the rights that have been passed by Parliament would not have helped her. What would have helped Victoria Climbié is if the duty to care, which is envisaged in the Bill on every one of the key services, had been carried out properly. If the duty to care had been carried out at a local level, it would not have been an issue of rights but an issue of practice—an issue of an outcome for a child who needed our help. It is very important that we make that clear in the Bill. Certainly, for my part, I have never thought that it was a function of the Children's Commissioner to be involved in helping children and young people in legal proceedings.

Finally, on Amendment No. 8, I hope that noble Lords will excuse a rather personal comment. During my time as chief inspector, I received a stream of requests from families, individuals, grandparents and neighbours, asking me to investigate how a case was being handled either by the courts or local authorities or by some other service. Had I felt it appropriate, I could of course have intervened, but for the most part I felt that it was my responsibility to direct those people to the proper mechanisms that had been put in place by Parliament to deal with individual concerns, be they matters of appeal, tribunals, ombudsmen or complaints procedures.

We must allow the proper procedures set by Parliament to fulfil their separate and distinctive functions, and we must recognise that in all cases involving family breakdown and the removal of children, there will be pain and conflict and quite often a feeling of anger and injustice. That is why Parliament has put in place the machinery for challenging the decisions made by those in authority in our country. It is not the job of the Children' Commissioner to second-guess the roles accorded by Parliament to the other bodies.

What we have put in place in Clause 4 is the opportunity for the Children's Commissioner to pursue individual cases that raise issues of public policy relevant to other children. I believe that no Children's Commissioner worth his or her salt—

Baroness Sharp of Guildford (Shadow Minister, Education & Skills; Liberal Democrat)

My Lords, would not the noble Lord accept that, in the proposals being put forward, the key issue is that the commissioner himself should have the right to decide which are the cases that raise issues of public policy—they should not be chosen for him by the Secretary of State?

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, that is exactly what the Bill says—that the commissioner has that right in Clause 4. Whenever he believes that there is an issue of public policy, he has a right to investigate an individual complaint however he wishes, and no one can stop him.

Lord Laming (Crossbench)

My Lords, I am grateful to the noble Baroness for that intervention, because it helps me to make my final point. I do not believe that a Children's Commissioner worth his or her salt would have any difficulty in finding an issue of public policy in an individual case, if he or she wanted to do that. It would be a decision for the Children's Commissioner under this Bill to do that. If I were the Children's Commissioner—although I have no such aspirations—I would have no difficulty in finding a public policy issue to investigate a case, if I wished to do so; nor would I be deterred from doing so by the Secretary of State or anyone else, especially in the light of the powers given in this Bill.

I hope that the joint efforts of the Commons and this House have produced a Bill that we can all take some pride in, as it affects the well-being of children in this country, and I hope that the amendment will not get pressed to the vote.

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I shall do my best not to get too passionate about these issues, although I feel so. I feel so partly because I have, as part of my policy responsibility, to work with my good friend Margaret Hodge and the Secretary of State to make this Bill a reality. I believe that the focus on the notion of every child matters, and on how to deliver change for children in practice so that their lives are better and they fulfil their potential more than would otherwise be the case, is one of the most challenging and important public policy issues before us. That is what this Bill is all about.

I also feel passionate because I have the responsibility, in my portfolio, for vulnerable children. I shall touch on why I believe that we are in danger of missing the point in this debate, and why I worry that the rights, needs and outcomes for vulnerable children will be better protected if we do not make these changes in the way that is being argued for.

However, I shall move on, because the House does not want to be delayed too much. The argument has been put that the Children's Commissioner is weaker than other commissioners. It would not help if I went into a lot of detail, but I passionately believe that the role of the Children's Commissioner is much more powerful than that of others. I have looked at other commissioners' roles. The focus of the Children's Commissioner is not only to consider individual rights, which he is obliged to do by the Bill, but to consider their outcomes. That is a mindset that other commissioners, other legislatures and other countries do not have. I know that from working as a Europe Minister, with good European colleagues. There is an obsession with process and input in Europe, but there is not an obsession with how change is made to happen on the ground. We are in the vanguard here, not behind.

We are in the vanguard because if rights alone and the enforcement of rights were sufficient, we would be living in paradise already—and we are not, because rights alone do not achieve enough change on the ground. Life, unfortunately, is more complicated than that. The effect of the amendments would be to push the commissioner into being a super-complaints-handler, when we already have plenty of people there with that responsibility. We want, and children want, much more of him than that—which is why we have to focus on that point.

One of your Lordships said that children wanted a commissioner to promote rights and outcomes—of course, and they will get it. That is what this Bill does. The commissioner can consider any individual complaint by a child if he believes that it raises an issue of public policy. We have listened to this House—but that is there, in the Bill. He can consider hundreds of such complaints, if he believes it to be right. But he should have the discretion to do so and not be driven by the pressure of a legislative shift, which this House seeks to make, to push him into the role of a complaints handler. That is why we are in danger of making a major mistake.

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, will the Minister explain why he believes that the commissioner is entirely independent as a result of Clause 4, when subsection (3) of that clause says:

"Before holding an inquiry under this section the Children's Commissioner must consult the Secretary of State"?

Why does he have to do that?

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, why I say that he is completely independent is that, while out of courtesy and as a matter of good public policy he must have a discussion with the Secretary of State, he is completely at liberty to do as he wishes after that consultation.

It has been said that Europe knows best in this debate, but I do not believe so. We are going further than most other countries in terms of the role of our legislation getting outcomes improved and effective action on rights, rather than simply words. The commissioner has to be aligned with that.

I read the UNCRC last night, on the train to Manchester. The benefit of our railways is that they give us much opportunity to do such things. As I read it, I thought about looked-after children, which is one of my weighty responsibilities. The House knows about looked-after children—the tens of thousands who leave local authority care every year, having had to be taken away from their parents to be given better protection by the state. Of course, the UNCRC is absolutely right in all that it says: it says that the state must take appropriate action and must act with the interests of the child before it. That is in the UNCRC, as it is in the Children Act 1989. It is all there.

The issue is not simply the rights of the child, but what happens in practice to looked-after children. As the noble Earl, Lord Listowel, has said, looked-after children get appalling outcomes: they underachieve in education, take drugs in massive and disproportionate numbers, end up in prison in disproportionate numbers and have major mental health problems. That is the sort of issue that we are focusing on, and that is what this Bill is about. That is what the commissioner is about. We should not pass worthy words that make us feel better when we go home at night. We are considering how to shift practice on the ground so that looked-after children do not have a desperately miserable, failed life, as a consequence of their upbringing. The commissioner will focus on the issues: do the local authorities improve outcomes, and do the Government do what they should? That is why it is so important not to bog the commissioner down in detail.

The noble Baroness, Lady Whitaker, asked in what ways the commissioner would have to have regard to the UNCRC. The answer is, "In everything that he does". He will consider whether children are getting those rights in practice and whether things are working in practice. That is why we made it a duty to have regard to it. The noble Baroness, Lady Finlay of Llandaff, talked about the duty to have regard to the UNCRC. She was absolutely right.

The right reverend Prelate the Bishop of Worcester said that we must be most concerned about the most vulnerable. We must be advocates for the rights of the child. The right reverend Prelate is right about that.

The commissioner will not be a second-best commissioner. He or she will be a commissioner like no one else in the world. I promise the House that others will follow the model, if they follow the fundamental legislation on which it sits, which covers the challenge to public bodies to get the outcomes in practice. That is why there is a difference. It is not that we are in a worse position than they are in Wales. I would say that this is a more powerful commissioner than exists in Wales because he or she will consider outcomes as well as rights. I should not stray into Welsh matters; they are a matter for Wales, not for me.

I shall close, as I will be wearying the House, but I make three final points. I remind the House of the bodies that children and young people can go to—rightly—to make complaints: the local authority ombudsmen; the Children's Rights Director; the Commission for Social Care Inspection; a prison or probation officer, in certain contexts; independent monitoring boards for prisoners; the Parliamentary Commissioner; the Special Educational Needs and Disability Rights Tribunal; the family courts, in certain circumstances; and local authority complaints officers. That panoply of rights and redress is already in our legislation. The commissioner's job is not to get involved in the detail but to see whether the systems work and to challenge them, if they do not.

I remind the House of the changes that we have already made to the commissioner's role, and I thank the House for doing so. I thank the noble Baroness, Lady Walmsley, and the noble Earl, Lord Howe, for doing so. We have listened to them. We must have regard to the UNCRC, and we must give powers of entry. The commissioner must undertake inquiries on his own initiative, and he can require responses and make ad hoc reports. We have shifted the basis to be England-plus, and the commissioner must take on board the views of the devolved commissioners. The Secretary of State cannot delay the making of reports and can amend them only to protect the anonymity of a child. The commissioner must produce child-friendly reports. All those measures are the result of this House's wisdom and guidance. We have listened, and we thank the House. However, we do not think that the House is right on this occasion.

We respect the sincerity of what has been said and the passionate belief that children should be looked after properly—"Amen" to that—but we do not think that the amendment is the way to deliver it. If we divert the commissioner into a focus on rights in complaints, he will not focus on outcomes.

If the House will not listen to me, it might listen to the most respected, eminent and thoughtful Member of your Lordships' House. He has broken his back and, at times, almost broken his heart on the issue. He has looked into the failures of our systems and services in the most ghastly and tragic cases. He has been a director of social services and a commissioner for the inspection of social services. He has had to carry around the horror of the Victoria Climbié report and has experienced a deluge of complaints from parents. His advice to us is "Leave well alone". I will say no more.

Baroness Walmsley (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I thank the Minister for his response. I am sure that we all understand the sincerity of his commitment to the protection of vulnerable children. That is in absolutely no doubt, and we are at one on that. We differ only about the best way to achieve it. I thank all noble Lords who supported my amendment, in particular the right reverend Prelate the Bishop of Worcester, who was so articulate about the matter.

I am not asking for rights alone. Your Lordships will notice from Amendment No. 5A that we have left in practical, measurable outcomes. They also appear in the clause about co-operation to improve well-being. That is well and good, but we believe that it is important to put that in the context of the rights of children.

I am puzzled about why the Government are so against putting the word "rights" into the Bill. Do the Government plan to legislate to remove the power and duty to promote children's rights from the Welsh, Scottish and Northern Irish Children's Commissioners to make them as good as, they believe, the new Children's Commissioner will be? That would be the logical consequence of what the Minister said tonight.

To the noble Lord, Lord Hunt, I say that there is nothing rhetorical about rights. It is a practical matter. He said that the commissioner would have to judge whether a particular case needed to be looked into. The commissioner will have to make judgments every day of his or her working life, and we must trust him or her to do it.

The noble Baroness, Lady Massey of Darwen, said that the commissioner must have regard to the UNCRC. "Have regard" is not the same thing as having a duty and obligation to promote and safeguard children's rights. That is important.

To the noble Lord, Lord Laming, I say, with the greatest respect, that, of course, children are covered by human rights legislation, but he will know as well as I do that children's rights, as enshrined in the UNCRC, are different because children are different. Therefore, I wish to test the opinion of the House.

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.

Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.

Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 and 7.

Moved, That the House do agree with the Commons in their Amendments Nos. 6 and 7.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.

Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.

Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.

Moved, That the House do agree with the Commons in their Amendment No. 12.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No 13. The amendment deletes the existing Clause 3. It should be seen in the context of Amendment No. 25, which creates a new clause on annual reports. I will also speak to Amendment No. 15, moved and passed in Committee in another place, which grants the commissioner powers to obtain responses to the recommendations in his reports produced under Clause 4. That is the same as government Amendment No. 9, to which I have already spoken and which gave the commissioner powers to follow up recommendations. The reasoning behind the amendment is the same.

The Government believe that the commissioner's reports should, where necessary, lead to action and positive change. We do not want to see his reports disappear without trace. There may be some unpopular recommendations, but that is part of the commissioner's function. The amendment was phrased as simply as possible to allow flexibility in how the commissioner may wish to exercise his power. We have not laid down a response time; we will leave that to the discretion of the commissioner. I hope that the House feels able to accept those changes tabled and passed in another place.

Amendments Nos. 13 and 25 were passed in another place, inserting a new clause on annual reports and removing the previous Clause 3 seen and debated by this House. The new clause is similar to Clause 3 in that it requires the commissioner to prepare an annual report and outlines the type of information to be contained in the report and the processes involved in laying it before Parliament. The clause differs from the previous one in that it requires that the commissioner report on the way in which he has discharged his function under the whole part, not only under Clause 2. That is why it was moved from its original position in the Bill. That is a necessary alteration because of the additional functions that the commissioner holds on non-devolved or reserved matters in other UK nations, set out in other clauses.

On annual reports and reflecting on the involvement of children, subsection (2) requires the commissioner to report on the steps that he has taken to involve children in the discharge of his functions. On the publication of reports, subsection (3) requires the commissioner to send a copy of his annual report to the Secretary of State and that the Secretary of State lay a copy before each House. The Secretary of State must do that "as soon as possible", to allay concerns voiced in this House on the issue. We do not believe that presenting the report to Parliament via the Secretary of State will in any way compromise independence; it is the normal way in which such reports are brought into Parliament. The Secretary of State has no power to change or alter the annual report in any way.

Subsection (5) requires reports to be published in a version suitable for children if the commissioner thinks it appropriate. I hope that the House agrees that the clause substantially enhances the previous Clause 3 and will feel able to accept that change. To allay any concerns, the Government tabled Amendment No. 19 in another place to make it explicit that the Secretary of State cannot delay publication of Clause 5 reports, by inserting the words "as soon as possible".

On the important issue of the involvement of children in choosing the commissioner, let me speak to Amendment No. 32. It has always been the Government's intention to involve children and young people in the appointment of the commissioner. That was one of the points raised when we consulted on Every Child Matters. The process that we envisage will be in keeping with the code of practice of the office of the Commissioner for Public Appointments, and we will draw on the experience of colleagues elsewhere in the United Kingdom. The appointment of the Northern Ireland Commissioner for Children and Young People, Nigel Williams, was an example of extremely good practice in that respect.

In July we established a children and youth board made up of 25 children and young people from across the country, selected from a wide range of organisations, both local and national, including the UK Youth Parliament. The board has an important role in the recruitment and selection of the commissioner by contributing to the person specification, producing the design material and taking part in the interview process. We introduced the amendment in another place. It ensures involvement in all future commissioner appointments.

I hope that all the amendments will be accepted by the House. Where we have been able to, we have gone with the views of the House; where we have not, I hope that I have explained satisfactorily why we think the stance right as it comes from another place.

Moved, That the House do agree with the Commons in their Amendment No. 13.—(Lord Filkin.)

Earl Howe (Shadow Minister, Family; Conservative)

My Lords, I want to register my thanks to the Government for Amendments Nos. 15 and 19. The first responds to a concern raised in this House in Committee, and it is a great pleasure to see the provision in proposed new subsection (6A) requiring a response from those mentioned in the report from the commissioner, when recommendations are contained. I also very much welcome the four words, "as soon as possible", inserted into Clause 5. Again, that gives reassurance that the process involved in the publication of the report will be a speedy one.

Baroness Walmsley (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I echo the noble Earl in welcoming the group of amendments, many of which reflect that the Government have listened to concerns expressed and responded very appropriately.

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14. The Government tabled nine amendments in another place, which were subsequently passed, that clarify the commissioner's role in relation to Wales, Scotland and Northern Ireland. The amendments make the role clearly one of an "England commissioner plus" rather than a "UK commissioner minus", to use the patois that has developed on the Bill. Again, that was in response to the strong views expressed in this House. Doing so does not undermine the role of any existing commissioner, and work can be done with them, possibly under a memorandum of understanding, to minimise possible confusion in the other countries about to whom they should address themselves.

The key amendments are Amendments Nos. 22 to 24, which add new clauses describing the Children's Commissioner's functions in Wales, Scotland and Northern Ireland. The changes that we propose to the Bill maintain the current position—that the commissioners in Wales, Scotland and Northern Ireland are wholly responsible for matters in their respective countries that are devolved. That is why the Children's Commissioner's functions now refer to children in England, except in the new clauses introduced by government Amendments Nos. 22 to 24.

Let me make it quite clear that the Government acknowledge that there will be issues of relevance and interest to children which relate to both devolved and non-devolved matters. Similarly, children—especially children in trouble—may well not know or care how the devolution system works, and which matters are devolved or non-devolved or reserved or excepted. For that reason, in the third subsections of each of the proposed new clauses, we are requiring the Children's Commissioner to take account of the views and work done by his other UK colleagues.

The commissioners may choose between them to draw up a memorandum of understanding on how best to work together, but that is a matter for them. The Government have no desire to impose any system of working on them; that must be left to their own judgment. That is why we do not mention or prescribe any formal way of working together in the Bill. Similarly, we do not envisage that a child will have to say to itself, "My problem concerns matter X, so I must consult commissioner Y". If a child in Wales, Scotland or Northern Ireland needs the services of a commissioner, we envisage that they will turn in the first instance to the commissioner in their own country. It will then be for that commissioner to decide if and how his counterpart based in England should be involved, in accordance with the appropriate devolution settlement and any memorandum of understanding or other working agreement drawn up between them.

I know from earlier debates that some noble Lords would prefer the Children's Commissioner's remit not to extend beyond England. I respect their point of view, but the Government are obliged to act within the parameters of the current devolution settlements as they are.

Not allowing the Children's Commissioner to have responsibility for non-devolved matters in Wales, Scotland and Northern Ireland would, in practice, mean that children in those countries were deprived of the influence of a commissioner who could bring to bear in Westminster matters decided in Westminster. That cannot be right. I hope that noble Lords will see the benefit of children outside England being able to access the benefit of the services of both commissioners when their problem requires that.

Given the importance of Amendments Nos. 22 and 24, I could go through them in detail, but perhaps I shall not, as that might weary the House. Perhaps I should move on.

We are fully committed to establishing sensible working relationships between the commissioners. The Government amendments are the result of lengthy consultation between my officials and those in the Wales, Scotland and Northern Ireland offices and the Scottish Parliament. My right honourable friend the Minister for Children, Young People and Families has also discussed and agreed this with colleagues in the Wales and Scotland Offices. I hope that noble Lords will accept these changes that have been passed in another place, which respect the devolution settlement, but see that it is essential that children are able to obtain redress, both for matters that are devolved and non-devolved without let or hindrance. We believe that this process achieves that. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 14.—(Lord Filkin.)

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I do not respect the devolution settlement. I do not believe that devolution should be regarded as settled. It is an ongoing process, as we were promised by the Secretary of State for Wales, Mr Ron Davies, at the time that that legislation was passed.

Although I am speaking from these Benches, the people of Wales are speaking with one voice. Apart from those Welsh Members of Parliament who are on the Government payroll, all Welsh MPs, all Assembly Members, all local authorities, all non-governmental organisations concerned with children in Wales, and the Richard report say that the Government are taking the wrong tack in this matter.

The issue is whether there should be a division in responsibility in devolved or non-devolved matters when children's interests are concerned. The Government have proposed that there should be a Welsh commissioner with strong powers to deal with devolved matters and an English commissioner who should come into Wales with weaker powers in relation to non-devolved matters. Why are they weaker? The noble Lord, Lord Filkin, tried to persuade us on the last amendment that the English commissioner was the finest possible template of a commissioner that the world had ever seen. I do not believe that that is true. The reason is that in England the Government propose to spend for each child approximately an eighth of what they propose to spend on children in Wales, a tenth of what they spend in Scotland and a fifteenth of what they spend in Northern Ireland. So the reason the commissioner in England should be so weak is nothing to do with principle, it is to do with cash.

The noble Lord, Lord Laming, told us in the previous debate that, in his position as Chief Inspector, he received complaints from grandparents, parents and neighbours who were concerned with individual children. He was unable to do anything about that because he thought that he should be much more concerned with procedures and organisations than with individual children. He could not look—

Lord Laming (Crossbench)

My Lords, I am sorry to interrupt the noble Lord. I wish to make it plain that I exercised discretion. I chose when it was appropriate and when it was not, which is exactly the Children's Commissioner's position.

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I understood that the noble Lord had said something quite different. If I misunderstood him in his previous contribution, I apologise. I thought he was saying that he could not look at individual cases. The commissioner for Wales will be able to do that and the commissioner in England will not. The English commissioner will not be able to examine individual cases, such as the Victoria Climbiés of the future, if a neighbour complains about their position, but he will in Wales—that is the distinction—unless the issue in Wales arises from a non-devolved matter.

Perhaps we should look at this matter from a practical point of view. I am sorry that the noble Lord, Lord Hunt, is no longer here, but he said in the previous debate that the amendments proposed on this side of the House would lead to confusion regarding responsibility and accountability. That is precisely what the Government's policy will do in Wales.

Let us examine the situation of two children in a care home in Wales where one child has been sent there by a local authority and the other has been sent there through the youth justice system. The position of the local authority is a devolved matter. The youth justice system is a Home Office matter. If anything has been proved regarding devolution, it is that the Home Office has clung to power over matters that may happen in Wales. In this example, the Welsh commissioner would be concerned with one child in a care home and could investigate an individual case and the child who arrived through the youth justice system would be the responsibility of the English commissioner, who could not examine that case.

Another area that is non-devolved is that of benefits. One of the issues that the commissioner in Wales has taken up as a result of the concession given by Lord Williams of Mostyn, when we discussed the powers of the Children's Commissioner for Wales, was that that commissioner could examine non-devolved matters and report to the National Assembly. That is precisely what the Welsh commissioner has done in the case of child poverty. He has produced a report in which he has said that the level of child poverty is a national disgrace in Wales and in the United Kingdom. Only this week he went to the Social Justice and Regeneration Committee of the National Assembly and explained that there were problems of child poverty in Wales and asked it—in the roundabout manner that we have in Wales—to do something about it.

The manner in which poor children in Wales will best be helped is by an extension of the powers of the Welsh children's commissioner over all matters, whether they are devolved or non-devolved. It would be ridiculous for a child to have to go through the hoops that the noble Lord, Lord Filkin, has just described, to have its problems addressed. Apparently the child should go to the Welsh commissioner and we were effectively told by the Minister that that commissioner will then decide whether, and how, his counterpart based in England should become involved, in accordance with his own functions, with those of other children's commissioners and with any memorandum of understanding. The memoranda of understanding regarding various matters concerning Wales are arcane documents and, only last week, we were asking that they should be published as a whole.

There we have two examples: child poverty and the position of children in care homes, who have been sent there through the youth justice system, where there will be a division of accountability and responsibility—precisely the criticism that the noble Lord, Lord Hunt, made in relation to the last amendment.

Public opinion in Wales is all one way. It may be that the Government will have their way, but it will not carry Wales with it. The Commission for Equality and Human Rights has issued a statement regretting that the same approach to recognising the need for its activities to be conducted at an all-Wales level, regardless of devolution boundaries, has not been extended to the development of the children's commissioners. The principle, that is the devolution settlement, has been breached for the commission regarding equality and human rights, but it has to be maintained for the children's commissioner. Where is the logic in that? It is total nonsense.

I have already referred to the Richard commission. All the work that went into that came to the straightforward conclusion that it was essential and necessary for the Children's Commissioner for Wales to have powers over all matters.

Finally, I refer to the joint statement on the Children Bill by the commissioners for children and young people in Northern Ireland, Scotland and Wales. They have all said that they believe it is insidious to give the English commissioner a role in relation to promoting awareness of children's views and interests in Northern Ireland, Scotland and Wales, even concerning reserve matters. They say that it will be confusing for children, who do not think in constitutional terms in relation to the issues that affect their lives. Those are the three people within the United Kingdom with hands-on experience of the role and functions of the Children's Commissioner. They are all opposed to the path that the Government have set themselves.

As it is in the same group, perhaps I may refer briefly to Amendment No. 22B. Should my attempts to reverse the Government's position fail in relation to Amendment No. 22A, I shall urge your Lordships to support Amendment No. 22B. That amendment would make it absolutely clear that what I might call the "Mostyn amendment" to the Children's Commissioner for Wales Act is firmly stated on the face of this Bill—that is, that nothing in this Bill will take away from the Welsh commissioner powers which were bestowed in the settlement that we reached on the issue on the previous occasion. In due course, I shall move Amendment No. 22A and, if that fails, Amendment No. 22B.

Lord Morgan (Labour)

My Lords, we all want to get this Bill on to the statute book in good time and I am anxious to help it on its way. But I agree very much with the sentiments put forward by the noble Lord, Lord Thomas. If I recall correctly, I think that we spoke in somewhat similar terms in the debate on the Children's Commissioner for Wales three or so years ago.

This is another example of the Government enunciating a great principle of devolution but, in fact, undermining it. As we have heard, it has produced protests from the Children's Commissioner, who has used words such as "insidious". He is not in his place but perhaps my noble friend Lord Hunt would regard such attitudes as an example of Celtic rhetoric, although I thought that his own transmogrification as a level-headed man of reason was slightly less than compelling.

I think that the Welsh commissioner has a clearly understood range of powers. We worked very hard to achieve those three or so years ago with the assistance of our deeply lamented friend Lord Williams of Mostyn. The distinction was made between devolved and reserve powers. That is not very logical in itself as one area does link with another. I remember the observation being made in the previous debate that we talk of joined-up government but children have joined-up lives, and it is very difficult to segregate one from the other in terms of policy and to say that one is, as it were, reserved when it is not.

I think that what has emerged from the House of Commons—perhaps it will be improved by your Lordships—is objectionable on two fronts. First, it is objectionable in terms of the principle of devolution. I find the idea of an "English commissioner plus" an interesting aspect of imperialism. It seems to me extraordinary—others might even say "insulting"—that an English commissioner should act on behalf of the whole United Kingdom when there are perfectly good commissioners in Wales, Scotland and Northern Ireland. At the very least, it can produce confusion. Examples of that have been quoted.

I also think that, in practice, it is bizarre that such a proposal should come from a Government who gave us devolution. We are back to "For Wales, see England", which disappeared around the time of the First World War but has now been revived and resuscitated under the aegis of the Labour Government who gave us devolution. I find the proposal very odd. In any case, as the noble Lord, Lord Thomas, observed, the whole situation is in flux because the Richard commission is being debated and may well affect the balance between the different components of the United Kingdom, including its commissioners. Therefore, it seems to me illogical and almost senseless as a view of devolution.

I also consider it to be objectionable because it means intruding into Wales and, for that matter, Scotland and Northern Ireland with someone who has weaker powers. By all accounts, the Welsh commissioner has stronger powers, however one defines rights. His role is greater; he has greater powers of inquiry; and he can report on any matter as he sees fit, including matters affecting the Welsh Assembly. I do not consider it desirable that a weaker commission should intrude into the affairs of Wales, Scotland or Northern Ireland, particularly when the English commissioner does not have a rights-based philosophy and has diminished powers.

Therefore, I hope that the Government will think again. I believe that their proposal is inconsistent with devolution, and it is inconsistent with a proper and coherent strategy for the children of all the nations of these islands. It is rejected by pressure groups, by the commissioners and by the National Assembly for Wales. This is broadly an admirable Bill. We all want to help it on its way. But it seems to me that this is a needless flaw, and I beg my noble friends to think again.

Baroness Finlay of Llandaff (Crossbench)

My Lords, I add my voice from Wales to the request to think again. The Assembly debated this matter fully on 4 May and voted unanimously for the powers of the Welsh commissioner not to be eroded. There is a concern in Wales that the English commissioner is being viewed as having a role "over and above" that will interfere with the role of the Welsh commissioner and undermine confidence in that role.

The devolution settlement certainly was not fixed in time. We have seen things being moved across to Wales when they had not previously been there, as happened, for example, with the Fire Services Act. Therefore, if the powers are not left principally with the commissioner in Wales, that will be counter to the whole principle of devolution, of managing services locally and of ensuring that the local services meet the needs of the local population.

Another concern is that we may not always have a government of the same colour in Westminster and in Wales. While there may be a memorandum of agreement at this stage and therefore, because we have government of the same colour in both areas, there may be agreement over the way forward, the political pressures may change enormously. Sadly, the people who will suffer will be the weakest and the most vulnerable. They will not be the politicians; they will be the very children that the Bill is designed to help.

Lord Livsey of Talgarth (Shadow Minister (Agriculture), Environment, Food & Rural Affairs; Liberal Democrat)

My Lords, I went through the Children's Commissioner for Wales Bill when it was proceeding through the House of Commons. It is clear to me that the Children's Commissioner for England has far fewer powers than the commissioner for Wales. With consummate skill, my noble friend Lord Thomas of Gresford completely demolished the case made by the Government in this respect.

Parts of the Bill, as amended by the Government and the House of Commons, go against the spirit and letter of devolution and, as the noble Lord, Lord Morgan, said, intrude into the powers of the Children's Commissioner for Wales on matters which are the concern of children in Wales. Surely it should not be the purpose of this Bill to take away powers from the Children's Commissioner for Wales, which effectively it does.

I believe that, so far as concerns children in Wales, the Bill as it now stands will result in an attempt at protection by remote control from England. That wrong must be put right. Indeed, I believe that it is at the heart of the Richard commission proposals for sorting out these problems and for devolving primary powers to Wales because this kind of debate will be redundant as the whole thing then will be sorted out logically.

Similar amendments to these were tabled in the House of Commons and defeated. Indeed, these issues directly affect the devolved administrations. The Welsh Select Committee in the other place expressed grave concern about these matters. I think it is significant that all members of the Welsh Select Committee supported the amendments which were defeated in the House of Commons because they were not satisfied with the settlement in the Bill. Sadly, 17 members of the Government's party supported amendments which weaken the powers of the Children's Commissioner for Wales, and I think that the House will judge on that. But the people with real knowledge supported the amendments which put these matters right.

Lord Rogan (UUP)

My Lords, in speaking to Amendment No. 14, I should like to forge a Celtic alliance with my Welsh colleagues. I do so in awareness of the grave concerns harboured by the recently appointed Northern Ireland Commissioner for Children and Young People, Mr Nigel Williams.

It appears odd, to say the least, that this Bill will create a different kind of commissioner for children than those which already exist in Northern Ireland, Scotland and Wales. Not only is that the case; the Bill will allow the new English commissioner—while admittedly having to take account of the Northern Ireland commissioner's work—to institute an inquiry without any prior consultation with the Northern Ireland commissioner.

Would it not be better for the Northern Ireland Commissioner for Children and Young People to have the lead responsibility for all matters affecting children in Northern Ireland and to work with the English commissioner on the specific matters that are the responsibility of the Westminster Parliament? If this legislation is accepted in its current form, the children's commissioner in Northern Ireland, and indeed the commissioners for Wales and Scotland, could be entirely sidelined and their roles completely undermined. Can the Minister give the House any assurance that that will not happen?

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I shall not speak at great length. I am not certain whether this is not one of those issues where, whatever one says, one will not change people's minds. The noble Lord, Lord Thomas of Gresford, was commendably clear and honest in his opening remarks when he said that he did not respect the devolution settlement and that there should be an ongoing debate. That is fine. He is utterly entitled to his point of view, and I understand and respect that. However, this is not the place at which to seek to forge change to the devolution settlement. If that were to be done, it would have to be done elsewhere and not on the back of an issue such as this.

The noble Lord, Lord Morgan, said that the English commissioner would be weak. There is nothing further that I can usefully say on that. I have not changed my stance in the past 15 minutes; nor, I suspect, has he.

The noble Baroness, Lady Finlay, was concerned about eroding the powers of the Welsh commissioner, as was the noble Lord, Lord Livsey. The noble Lord, Lord Rogan, also expressed those concerns. We are not changing the powers of the Welsh commissioner in any respect.

The noble Lord, Lord Rogan, said that it would not be possible for the Welsh commissioner to have lead responsibilities. The noble Lord, Lord Thomas of Gresford, gave the good example of two children in the same children's home, both affected by the same issues and concerns, which, for the sake of argument, bring us within the ambit of Clause 4 and raise issues of public policy. In that situation, we would expect the commissioners to strike a memorandum of understanding and agree that one of them, not both, would investigate the issue. He would determine his conclusions and share those with his colleague. Those conclusions would then find their way onwards, if it was a Welsh governance issue, to the Assembly or other parts of Welsh governance, and if it was a non-devolved, UK-wide issue, it would clearly find its way into UK governance. In other words, while the final repository of the actions that the commissioner found as a consequence of his investigations might—how shall I put it—challenge either the Home Secretary or the Assembly, that would be done only as the result of a process which, as far as the children were concerned, was joined up and by which they were not inconvenienced.

Taking the point made by the noble Baroness, Lady Finlay, I do not believe that it is conceivable that there might be an issue even though the Welsh Assembly and the Government of the day were of different political complexions. One would expect impartial public officials of high probity and a non-party political nature to serve as the commissioners. I therefore do not believe that they would in any way be blown or buffeted by different political perspectives.

I shall say no more. I do not think that I will necessarily persuade the noble Lord, Lord Thomas, on this issue, much as it sorrows me to say so. I think that the provision is workable and practical. Now is not the time to change the devolution settlement.

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 15 to 21.

Moved, That the House do agree with the Commons in their Amendments Nos. 15 to 21.—(Lord Filkin.)

Lord Filkin (Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22.

Moved, That the House do agree with the Commons in their Amendment No. 22.—(Lord Filkin.)

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

rose to move Amendment No. 22A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 22, leave out "agree" and insert "disagree".

The noble Lord said My Lords, I have spoken to the amendment with Amendment No. 14.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 22A, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

rose to move, as an amendment to Commons Amendment No. 22, Amendment No. 22B:

22B After Clause 6, Line 25, at end insert—

"(8) Nothing in this section affects the additional power of consideration and representation granted to the Children's Commissioner for Wales by section 75A of the Care Standards Act 2000 (c. 14)."

Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)

My Lords, I have spoken to this amendment with Amendment No. 14. Amendment No. 22B is an amendment to Commons Amendment No. 22. I know that the spirit of Lord Williams of Mostyn is with me. I beg to move.

Moved, as an amendment to Commons Amendment No. 22, Amendment No. 22B.—(Lord Thomas of Gresford.)