Clause 3 - Review of exercise of functions of Assembly and other persons
Children's Commissioner for Wales Bill
6:15 pm

Mr Richard Livsey (Brecon and Radnorshire, Liberal Democrat)

I beg to move amendment No. 42, in page 2, line 15, at beginning insert—

`(A1) The Commissioner may make appropriate representations about any matter affecting the rights or welfare of children ordinarily resident in Wales.'.

Mr Barry Jones (Alyn and Deeside, Labour)

With this it will be convenient to take amendment No. 46, in page 2, line 15, at beginning insert—

`(A1) The Commissioner may make appropriate representations to the National Assembly about any matter affecting the rights or welfare of children ordinarily resident in Wales.'.

Mr Richard Livsey (Brecon and Radnorshire, Liberal Democrat)

Amendment No. 42 is more simple to debate than the previous amendment, which dealt with the grey area of incorporating the convention into British law.

We now return to part of the territory that we covered during the debate on clause 1. It is important to recognise that the provision in amendment No. 42 would be all-encompassing. It states:

The Commissioner may make appropriate representations about any matter affecting the rights or welfare of children ordinarily resident in Wales.

That is a one-off statement. It would mean that the remit of the commissioner could encompass all aspects of the rights and welfare of children who are ordinarily resident in Wales.

The amendment would allow the commissioner to be a truly independent watchdog and champion of children, and would strengthen the Bill in four key ways. First, it would allow the commissioner to report on potential and actual primary legislation that is outwith the Assembly. Secondly, it would give the commissioner the right to comment freely on non-devolved matters and functions that impact on children in Wales. Thirdly, it would enable the commissioner to represent the interests of children who are ordinarily resident in Wales, but who receive services or are accommodated outside Wales. Fourthly, it would allow the commissioner to consider, and make appropriate representations about, matters that proved to be key in the light of consultation and other forms of contact with children and young people in Wales.

As a constituency Member of Parliament for Brecon and Radnorshire, I know that children in Wales have considerable contact with areas outside Wales. Hon. Members may be aware that the boundary between Powys and England stretches some 132 miles—the equivalent of travelling from the Severn bridge to the Hammersmith flyover. The ways in which people move back and forth across that border are therefore legion. We have children in hospitals in Shrewsbury and Hereford. Others travel to Birmingham for treatment, while those from the south-east of Wales travel to Bristol. Sadly, there are also children who are sent to penal institutions across the border.

The points to which I have referred, including empowering the commissioner to comment freely on non-devolved matters and functions, are important. They touch on the Home Office in particular, and on local government in England, which we cannot ignore. Often, local government is responsible for children's homes and for fostering children. Several of my child constituents are in foster homes in Shropshire, for example. Members of the Committee may not be aware that my constituency has 12 neighbouring constituencies—more than any other in Britain—and people move around in all manner of directions. It is important that we represent the interests of children ordinarily resident in Wales but receive services or are accommodated outside Wales. That applies to hospitals, local government establishments and fostering services, and in various other situations.

Amendment No. 42 reflects the description of the general power of the National Assembly for Wales in section 33 of the Government of Wales Act 1998. If the Government were so inclined, they could adopt a wording such as, ``The Children's Commissioner may consider, and make appropriate representations about, any matter affecting children in Wales that is compliant with the Government of Wales Act 1998.'' Indeed, it is very important that we have such a catch-all clause.

In passing, I should mention amendment No. 46, which is relevant to amendment No. 42. Where amendment No. 46 states that the commissioner

may make appropriate representations to the National Assembly about any matter affecting the rights or welfare of children ordinarily resident in Wales,

amendment No. 42 is far more wide-ranging. It covers eventualities that I mentioned in relation to non-devolved matters, and services received, outside Wales.

The amendment echoes the wording of the Government of Wales Act 1998, in that it includes specific references to consideration, which would allow the commissioner to review issues of concern or potential concern. The Government have argued that the commissioner can comment informally on any matter, but how much weight is carried by an informal comment? How much power is there behind it? Informal comment is insufficient because the post is created by statute, so it must carry the force of statute.

The commissioner is required to act within his statutory authority. The Bill restricts the Commissioner's ability to do that, as outlined in the report of the Health and Social Services Committee of the National Assembly, although the job description for the post refers to that. Therefore, the commissioner will not be on a par with existing European children's commissioners and ombudspeople. That is especially true compared with Scandinavia, where I know that some members of the Committee have witnessed the legal weight carried by its commissioners.

The hon. Member for Meirionnydd Nant Conwy and I—and perhaps other members of the Committee—support the amendment because the role of the commissioner must have teeth, not only with regard to the Assembly, which is obviously important, but to non-devolved areas. We must ensure that the commissioner is a champion for all Welsh children, wherever they may reside.

Mr Elfyn Llwyd (Meirionnydd Nant Conwy, Plaid Cymru)

I shall be brief because I agree with everything that the hon. Member for Brecon and Radnorshire said.

On Second Reading, and earlier today, the Minister said that the commissioner would be entitled to investigate and make informal comment on reserved matters. That goes part of the way towards where we should like to see the commissioner operating, but I ask him to differentiate between the wording of the amendment and what he claims the commissioner can do. I cannot see a real difference between ``informal comment'' and ``may make appropriate representations''; they are one and the same. Before he gets up and says, ``Therefore the amendment is otiose,'' I shall say to him that I would prefer to see it in the Bill.

There is nothing objectionable in the amendment from a drafting, or any other, point of view. Indeed, it aligns with the views the Minister expressed on Second Reading and earlier today. By including reserved matters, it will hopefully assist the commissioner to be a full and wholehearted champion of children and young people in Wales, even if he makes only informal comments and/or appropriate representations. When that issue was debated earlier, we hoped that the commissioner's informal comments would be informed comments.

Will the Minister explain in detail why the amendment is unacceptable? I cannot see any difference between what he said earlier today, and on Second Reading, and the amendment.

Mr Win Griffiths (Bridgend, Labour)

I do not believe that there is anything but a technical difference between amendment No.46, in which I am joined by my hon. Friend the Member for Cardiff, North, and that moved and supported by the hon. Members for Brecon and Radnorshire and for Meirionnydd Nant Conwy. The difference is simply the place to which the commissioner will make his representations.

The amendment would allow the commissioner to report on primary and potential primary legislation; to comment on non-devolved matters and functions when they impact on children in Wales; to represent the interests of children ordinarily resident in Wales, who are receiving services outside Wales paid for through the Welsh purse; and to consider and make representations on any matters that emerge as key concerns through consultation and other contact with children and young people in Wales.

The difference that I propose is that the commissioner's representations be made through the National Assembly, which would be consistent with the devolution settlement and the Government of Wales Act 1998. Furthermore, that would provide a proper focus for the Children's Commissioner. Instead of flicking from Department to Department with the appropriate representations, he would make his representations to the National Assembly, who—with the full force of the Government of Wales Act 1998 behind it—could make representations directly, and through the Secretary of State for Wales, to Departments. That is a more satisfactory way to deal with the situation because it gives a clear, formal structure within which the commissioner would operate and would make his representations more appropriate.

Mr Andrew Rowe (Faversham and Mid Kent, Conservative)

The hon. Gentleman talks a lot of sense. As the Minister is being open and supports the concept, we should like to hear some examples of the things upon which representations would not be allowed.

Mr Win Griffiths (Bridgend, Labour)

Obviously, my hon. Friend the Minister could comment upon that.

The amendment deals with some of the objections that may be felt in Government circles. I that hope my hon. Friend will take amendment No. 46 back to those circles to see whether it is acceptable, or whether another amendment with the same purpose would be. I hope that the Committee understands that I am trying to work within the devolution settlement in order to make the commissioner more effective in his work.

Mr Robert Walter (North Dorset, Conservative)

I nearly intervened on the two previous hon. Members because all three hon. Members have made the point that they are trying to achieve some of the objectives to which I alluded this morning in terms of cross-border and non-devolved matters. In the words of the hon. Member for Brecon and Radnorshire, this is a catch-all clause. My concern is that it catches more than non-devolved and cross-border matters.

Does the Minister think it appropriate for the commissioner to make representations about what goes on in the home of a normal family? Or should he be restricted to public bodies and statutory agencies?

Mr Win Griffiths (Bridgend, Labour)

This is where we need to tread carefully. One interpretation of what the hon. Gentleman said is that there should be no investigations by the commissioner of child abuse in families if he felt that it was simply something that happened within families.

The Bill and amendment are related to the concerns of children. The commissioner would have to judge whether the concerns of children would lead him to find a problem in a family that the social services inspectorate might not have dealt with properly. He would certainly not be allowed simply to say something about the relationship between a child and his family. We need to put that point aside and consider matters clearly in the context of the representations made to the commissioner.

Mr Robert Walter (North Dorset, Conservative)

I do not want to suggest that the commissioner would not be concerned about child abuse in the home. Clearly, he should be, as it is rightly a matter of concern to social services departments throughout Wales.

If we take the amendment at face value, the commissioner could take it upon himself to act like a health education authority and say what is good practice and that all parents should do X, Y and Z. We do not want him to do so. It is right that he should consider child abuse in the home, problems in non-devolved bodies and cross-border issues. However, I am concerned that he should not somehow become the arbiter of good practice in bringing up our children in normal family situations.

Mr Win Griffiths (Bridgend, Labour)

I do not think that the Bill or the amendment would allow that. The Bill must be seen specifically in the context of promoting the rights and welfare of children, and in the context of the commissioner consulting children about what interests or concerns them. I do not envisage the commissioner delivering tablets of stone from on high about any subject, unless it could be shown that the subject concerned children widely and was not a problem for only one child. On such matters, there should be debate.

My amendment would work through representations to the Assembly, so that the commissioner could not take action separately. The Assembly would consider those representations, as should be the case in any democratic society. I hope that that has set the hon. Gentleman's mind at rest, and I hope that the Minister will respond positively about the way in which the commissioner may be able to make appropriate representations. The most appropriate way would be through the Assembly, to be consistent with the devolution settlement.

Debate adjourned.—[Mr. Touhig.]

Adjourned accordingly at twelve minutes to Seven o'clock till Thursday 25 January at half-past Nine o'clock.