New Clause 1 — Children's Commissioner: functions

Orders of the Day — Children Bill [Lords] – in the House of Commons at 1:45 pm on 2nd November 2004.

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'(1) The Children's Commissioner has, subject to the following provisions of this Part, the function of promoting and safeguarding the rights and interests of children in England.

(2) The Children's Commissioner may in particular under this section—

(a) encourage persons exercising functions or engaged in activities affecting children to take account of their rights, views and interests;

(b) advise the Secretary of State on the rights, views and interests of children;

(c) review and report on the effectiveness of—

(i) advice and advocacy services;

(ii) complaints procedures; and

(iii) inspection and whistle-blowing arrangements,

so far as relating to children;

(d) review and report on any other matter relating to the rights, views and interests of children.

(3) The Children's Commissioner must take reasonable steps to involve children in the discharge of his functions under this section, and in particular to—

(a) ensure that children are made aware of his function and how they may communicate with him;

(b) consult children, and organisations working with children, on the matters he proposes to review and report on under subsection (2)(c) or (d);

(c) ensure that the content of any material issued by the Commissioner or his staff, whether printed or in electronic or other form, which is intended to be used by children, takes account, so far as practicable, of the means of communication, level of understanding and usual language of the intended recipients.

(4) The Children's Commissioner must for the purposes of subsection (3) have particular regard to groups of children who do not have other adequate means by which they can make their views known.

(5) The Children's Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time—

(a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and

(b) if the child consents, interview the child in private.

(6) Any person exercising functions under any enactment must supply the Children's Commissioner with such information in that person's possession relating to those functions as the Children's Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this subsection, lawfully disclose to him).

(7) The Children's Commissioner may provide assistance to a child to bring legal proceedings where the child is unable to bring legal proceedings; and it appears to the Commissioner reasonable to do so and there is no other person or body likely to provide such assistance or take such action (or both).

(8) In considering for the purpose of his function under this section what constitutes the rights and interests of children (generally or so far as relating to a particular matter) the Children's Commissioner must have regard to the United Nations Convention on the Rights of the Child.

(9) In subsection (8) the reference to the United Nations Convention on the Rights of the Child is to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989, subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.'.—[Mrs. Brooke.]

Brought up, and read the First time.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following:

New clause 2—Powers of consideration and representation by Children's Commissioner for Wales—

'(1) Section 75A of the Care Standards Act 2000 (c.14) (additional powers of consideration and representation) is amended as follows.

(2) Omit subsections (1) and (2) and insert—

"The Commissioner may consider, and make representations about, any matter affecting the rights and welfare of children in Wales to—

(a) the Assembly, and

(b) where the matter is not devolved and the Commissioner considers it appropriate, to the responsible United Kingdom Minister of the Crown or Government department.".'.

New clause 3—Requirement to review working of Part 1 of the Act—

'(1) The Children's Commissioner shall—

(a) keep under review the working of Part 1 of this Act and in doing so consult with children and representatives of organisations concerned with children's rights and interests;

(b) make reports on it to the Secretary of State in accordance with the following provisions of this section.

(2) The first report under this section shall be made as soon as is practicable after the third anniversary of the coming into force of this Part.

(3) A subsequent report under this section shall be made at such time as the Children's Commissioner thinks fit, not being earlier than three years after the making of the last previous report.

(4) A report under this section—

(a) shall include the views of the Children's Commissioner on the adequacy and effectiveness of this Part; and

(b) may contain recommendations as to amendments to this Part which in the opinion of the Children's Commissioner are necessary or desirable.

(5) The Secretary of State shall as soon as is reasonably practicable lay a copy of every report sent to him under this section before each House of Parliament.'.

New clause 13—Children's Commissioner: functions (No.2)—

'(1) The Children's Commissioner has, subject to the following provisions of this Part, the function of promoting and safeguarding the rights and interests of children in England.

(2) The Children's Commissioner may in particular under this section—

(a) encourage persons exercising functions or engaged in activities affecting children to take account of their rights, views and interests;

(b) advise the Secretary of State on the rights, views and interests of children;

(c) review and report on the effectiveness of—

(i) advice and advocacy services;

(ii) complaints procedures; and

(iii) inspection and whistle-blowing arrangements,

so far as relating to children;

(d) review and report on any other matter relating to the rights, views and interests of children.

(3) The Children's Commissioner must take reasonable steps to involve children in the discharge of his functions under this section, and in particular to—

(a) ensure that children are made aware of his function and how they may communicate with him;

(b) consult children, and organisations working with children, on the matters he proposes to review and report on under subsection (2)(c) or (d);

(c) ensure that the content of any material issued by the Commissioner or his staff, whether printed or in electronic or other form, which is intended to be used by children, takes account, so far as practicable, of the means of communication, level of understanding and usual language of the intended recipients.

(4) The Children's Commissioner must for the purposes of subsection (3) have particular regard to groups of children who do not have other adequate means by which they can made their views known.

(5) The Children's Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time—

(a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and

(b) if the child consents, interview the child in private.

(6) Any person exercising functions under any enactment must supply the Children's Commissioner with such information in that person's possession relating to those functions as the Children's Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this subsection, lawfully disclose to him).

(7) In considering for the purpose of his function under this section what constitutes the rights and interests of children (generally or so far as relating to a particular matter) the Children's Commissioner must have regard to the United Nations Convention on the Rights of the Child.

(8) In subsection (7) the reference to the United Nations Convention on the Rights of the Child is to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989, subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.'.

New clause 18—Exercise of functions in relation to children in Wales, Scotland and Northern Ireland—

'(1) It shall be the sole responsibility of the Children's Commissioner for Wales to—

(a) hold an inquiry on any matters as regards children in Wales; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Wales.

(2) It shall be the sole responsibility of the Commissioner for Children and Young People in Scotland to—

(a) hold an inquiry on any matters as regards children in Scotland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Scotland.

(3) It shall be the sole responsibility of the Commissioner for Children and Young People in Northern Ireland to—

(a) hold an inquiry on any matters as regards children in Northern Ireland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Northern Ireland.'.

Amendment No. 1, in page 1, line 6, leave out clause 2.

Amendment No. 11, in clause 2, page 2, line 18, leave out 'take reasonable steps to'.

Amendment No. 12, in clause 2, page 2, line 19, leave out 'section' and insert 'Part'.

Amendment No. 44, in clause 4, page 2, line 24, at end insert—

'(c) ensure that direct services provided to children by the Commissioner or his staff in Wales whether formally or informally are provided in Welsh or English or both according to the wishes of the intended recipients.'.

Amendment No. 13, in clause 2, page 2, line 31, at end insert—

'(6A) In carrying out his functions under this section the Commissioner must take steps to ascertain the views of parents and other persons caring for children in improving the well-being of children.'.

Amendment No. 4, in page 4, line 1, leave out clause 4.

Amendment No. 34, in page 4, line 24, leave out clause 5.

Amendment No. 45, in page 4, line 24, leave out clauses 5 to 7.

Amendment No. 24, in clause 5, page 4, line 29, leave out '(12) of section 2' and insert—

'(9) of section [Children's Commissioner: functions]'.

Amendment No. 25, in clause 6, page 5, line 6, leave out '(12) of section 2' and insert—

'(9) of section [Children's Commissioner: functions]'.

Government amendment No. 28.

Amendment No. 26, in clause 7, page 5, line 38, leave out '(12) of section 2' and insert—

'(9) of section [Children's Commissioner: functions]'.

Amendment No. 27, in clause 9, page 7, line 7, leave out '2(11) and (12)' and insert—

'[Children's Commissioner: functions](8) and (9)'.

Government amendment No. 30.

Amendment No. 9, in schedule 1, page 44, line 19, at end insert—

'(1A) The Secretary of State must take reasonable steps to involve children and representatives of children's organisations in the process of appointment of the Commissioner.'.

Amendment No. 10, in schedule 1, page 45, line 31, leave out

'and on such conditions (if any).'.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

I think that the consensus has come to an end. I rise to speak to new clause 1 and amendment No. 1, which would delete clause 2, as amended in Committee, to consequential amendments Nos. 24 to 27, and to amendment No. 4, which would leave out clause 4. My hon. Friend Mr. Williams very much hopes to speak to new clause 2, and on other issues pertaining particularly to Wales. As we are short of time, it might help if I said at the outset that we want to press new clauses 1 and 2 to a vote.

The Minister will be aware that a wide range of organisations and individuals are enormously disappointed with the amendments to clause 2 that were recently passed in Committee. During the debate, it became apparent that the Government's views on the functions and role of the children's commissioner were fundamentally different from those who opposed the amendments, with little hope of convergence. Given the widespread welcome for a Children's Commissioner for England—I do indeed welcome the concept—it is surely right that we revisit the issues and reflect on the cross-party support given in the other place to a clause similar to new clause 1. Indeed, new clause 1 is also very similar to new clause 13, as proposed by the Conservatives.

As a consequence of the Government's amendments, the children's commissioner now has the function of

"promoting awareness of the views and interests of children".

That contrasts with the much stronger statement resulting from cross-party amendments made in the other place, which would have given the commissioner the function of

"promoting and safeguarding the rights and interests" of children. As the Children's Commissioner for Wales said:

"What sort of 'champion' is it that does not advocate for the rights of the group of people they are championing?"

We welcome the fact that the Government accepted at a very early stage an amendment in the other place whereby the commissioner "must"—rather than "may"—have regard to the United Nations convention on the rights of the child. But the Government also required that the commissioner be concerned "in particular" with the five "outcome goals". The Joint Committee on Human Rights concluded:

"We consider that the confusion engendered by reincorporating in the Bill a duty to have regard both to the Convention and the five outcomes will risk downgrading the Convention from a framework to a background to the Commissioner's work . . . We conclude that it is unnecessary for the five outcomes listed in clause 2(3) as originally introduced to be reinstated. If the Government feels they must, they should be clearly placed within the context of the CRC."

The Minister told the Committee that if the focus were simply on rights, it would limit the work that the commissioner could do on behalf of children. That is a point with which we have considerable difficulty.

There is nothing narrow about the proposed focus on rights and interests. The convention on the rights of the child covers all aspects of childhood and we ratified that convention in 1991. It gives all babies and children a comprehensive set of economic, social, cultural, civil and political rights, 40 in all. Because of constraints on time, I shall not run through them all, but they cover education, health, sexual exploitation, adoption, children in trouble with the law and so forth. The convention provides a wide framework for the children's commissioner and it is not limiting in the way the Minister suggested. It is, indeed, a foundation on which everything else can be built.

We oppose clause 4 because it gives the Secretary of State the power to direct the commissioner to undertake an inquiry. The Government have given assurances that they foresee the power being used only in cases of extreme significance. However, the Secretary of State can already convene such an inquiry under existing powers.

Photo of Ms Debra Shipley Ms Debra Shipley Labour, Stourbridge 2:00 pm, 2nd November 2004

Does the hon. Lady recall that, in Committee, the Minister for Children argued in favour of the Secretary of State having powers to direct? Does she agree that that is totally wrong and that the Secretary of State should not have such powers? The Secretary of State can already instigate inquiries and it is vital that the children's commissioner be independent of Government and free to comment on Government inquiries. Can the hon. Lady envisage circumstances in which a Government inquiry could have a specific political dimension, making the independence of the children's commissioner absolutely vital?

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

I thank the hon. Lady for her intervention and I could not agree more with her, so I will cut a bit out of my speech. It is indeed vital that we have a genuinely independent children's champion.

In Committee, the Minister said that the changes that she was proposing would

"ensure that we have the very best commissioner in the world, built on our experience of the workings of commissioners in other countries."—[Official Report, Standing Committee B, 12 October 2004; c. 16.]

All members of the Committee wanted the best commissioner in the world, but which other commissioner anywhere does not have the basic right and duty of promoting and safeguarding children's rights? None. The model proposed for our commissioner is far weaker than those that exist in Wales, Scotland and Northern Ireland. I understand that the European Network of Ombudspersons for Children has written to the Minister expressing concern at the weakness of the legislation, suggesting that the Children's Commissioner for England might not be able to join the network. In other words, we cannot be part of the club.

On Second Reading in the other place, my noble friend Baroness Walmsley said:

"I was horrified to discover that the budget per child for the Northern Ireland Commissioner is £3.80, for every Welsh child it is £2.11, every Scottish child 98p, but the anticipated expenditure on every English child is only 24p"—[Hansard, House of Lords, 30 March 2004; Vol. 659, c. 1220.]

Suspicion remains that the limiting of the role of the English commissioner is financial. I believe that that is quite fundamental.

Briefly, we welcome Govt amendment No. 30—the Government were listening there—and also have considerable sympathy for new clause 3. I am mindful that many other hon. Members have important contributions to make, so I shall end there.

Photo of Martyn Jones Martyn Jones Labour, Clwyd South

I rise this time, I hope, to speak to the correct group of amendments. It all shows how keen I am to get my views on the record. [Hon. Members: "Excellent."] I support, as do other members of the Committee, Mrs. Brooke. We are co-signatories in respect of her new clause and of mine; they are complementary.

My amending provision is designed totally to remove the role of the Children's Commissioner for England out of the Welsh equation. At the same time the other extends the role of the Children's Commissioner for Wales to fill the gap and provide a comprehensive service to children from Wales wherever they are in care or in need of care. Sadly, the Government have refused to deal with that matter to the satisfaction of the Committee, of non-governmental organisations across Wales and of the Children's Commissioner for Wales himself.

The Government say that they do not want to extend devolution on this matter, but extending powers at this stage would not affect the current devolution settlement one iota. Acceptance of the amendment would not give a single additional power to the National Assembly for Wales, but would allow the Children's Commissioner for Wales to carry out his duties properly and to help Welsh children in all aspects of their lives, wherever they are in the UK.

I cannot emphasise enough to the House that the Children's Commissioner for Wales is an independent body and not a National Assembly body and neither is the commissioner's role to be an adjunct to the Welsh Assembly Government. He stands alone and should not be mixed up in the devolution process, as the Government seem to fear is likely to happen.

Members of the Welsh Affairs Committee have rehearsed the arguments on many occasions over this specific point. Indeed, the Committee conducted a report, "The Powers of the Children's Commissioner for Wales", and we took evidence from the Minister for Children herself. The amendments advocate a logical and sensible move for the children of Wales, and I can assure the House that everyone in Wales agrees with what they propose. I would not have added my name to the amendments and new clauses if I were swimming against the tide of Welsh opinion. Children's organisations and the National Assembly for Wales believe that this is the right move for Welsh children and that the Government are wrong on this specific issue. I am sure that the Minister would agree that the acid test is how legislation operates in practice.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I congratulate the Committee on its excellent work, as reflected in the report, but is my hon. Friend aware that, in his annual report, the Children's Commissioner for Wales made it plain that he was able to make representations to the Government on any matter affecting children in Wales? It works.

Photo of Martyn Jones Martyn Jones Labour, Clwyd South

I have no doubt that he will attempt to make it work, but I also know from the evidence that he gave to the Committee—my hon. Friend the Under-Secretary is being selective—that he does not accept that the drafting of the legislation would make his job any easier. In fact, he said that it would make it more difficult.

Photo of Martin Caton Martin Caton Labour, Gower

Does my hon. Friend agree that the debate shows that we are not asking the Government to move very far? We are asking only to formalise and make proper an arrangement that already exists informally. The point is that the Children's Commissioner for Wales is not a creature of the Assembly—it is completely independent—so the huge constitutional crisis that Ministers seem to fear will not arise.

Photo of Martyn Jones Martyn Jones Labour, Clwyd South

Indeed. There is no crisis. The Children and Family Court Advisory and Support Service has already been devolved to the Assembly. We are talking about something that is far less of a move than that. I simply cannot understand why the Government are so intransigent on this matter. I know that the Minister wants what is best for children in Wales, so she should listen more to what the NGOs and charities in Wales are saying; they want the same thing.

I am a huge supporter of the concept of draft legislation, but if the Government want Select Committees to undertake detailed pre-legislative scrutiny, they will have to accept that they should listen on occasions to what those Committees say. This is one such occasion and I ask the Government to accept the amendments in order to make a good and well-intentioned Bill even better.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The consensus is well and truly over at this stage, and the great melange of amendments and new clauses in the group covers a wide range of subjects about the children's commissioner. I shall speak briefly to new clause 1, proposed by Mrs. Brooke, which we shall support. It is similar to our new clause 13.

In Committee debates about the children's commissioner, we applied five principles. First, the new children's commissioner should be independent of the Government and a champion for children. Secondly, the commissioner should be powerful enough to do his or her job properly, regardless of Government schemes and funding shortfalls. Thirdly, he should fully engage with children and young people and also gain their confidence, as Baroness Ashton said in the other place. Fourthly, the children's commissioner should have a clear status in the context of other UK commissioners and other agencies and interested parties. Fifthly, the commissioner should be accountable to all of the above.

I fear that the way in which the Government have emasculated the powers of the commissioner has spoiled the cross-party consensus. I see the Minister for Children responding with an enormous Cheshire cat grin on her face as though she has just killed the biggest rat of all. There was enormous cross-party consensus to put together a comprehensive new clause 2 in the Lords. She has completely torn the guts out of it.

Let us remind ourselves of what the Government have reversed. They have completely left out the mention of children's rights. Instead, the children's commissioner will be promoting awareness of children's views. Children have no rights in the Bill; it is rights-lite, rights-free. In Committee, I offered the Minister the comparison of considering how feeble the Disability Rights Commission would appear if its general function were simply to promote awareness of the views of disabled people. The same would be true of the Commission for Racial Equality or the Equal Opportunities Commission.

The Minister made a series of amendments rather than just replacing new clause 2, and I have never been sure why she did that. The Bill dilutes the review and reporting powers, removing the advocacy and whistleblowing arrangements. It declines to beef up the children's commissioner's obligations to make children aware that they can consult him, and restores the Government's limited checklist on what sort of children's views and interests—not rights—he can take notice of. It reinforces the commissioner's inability to undertake inquiries into individual cases, even when they have implications for children generally. That is why the original clause, to which the Government have reverted, was described in the upper Chamber as discriminatory and castrated and as giving the children's commissioner the powers of a glorified public relations consultant. All along, the Government have claimed that they have done what children wanted, but nowhere have they provided evidence of that.

Five references to children's rights have been removed. The provision to support individual children was removed. The references to reviewing and reporting on the effectiveness of advice and advocacy and on whistleblowing and inspection arrangements were removed. The Government reinserted their outcome goals in part 1 of the Bill.

The Minister said that, in Committee, Ministers stated that the Government would ensure that they had the best commissioner in the world, built on their experience of the workings of commissioners in other countries. The Children's Rights Alliance has been completely unable to find a commissioner anywhere who does not have the basic duty of promoting and safeguarding children's rights, which means, by the looks of things, that the Children's Commissioner for England will not be permitted to be part of the European network.

We want to restore the original clause 2 that was inserted in the Bill in the upper House, as it has been emasculated. We will support new clause 1 in endeavouring to do that, although we think that new clause 13, removing subsection (7)—about which we, and the Government, have some qualms—would be the best way to do that.

Amendments Nos. 11 and 12 are all about involving children, which is what the Bill is supposed to be all about. Amendment No. 11 would take the short phrase "take reasonable steps" from subsection (4) so that the children's commissioner must involve children in the discharge of his functions. That is what we have assumed all the way along, so why must "reasonable steps" be placed in the way of the commissioner's doing that?

In the first schedule to the Bill, we want to involve children much more in the selection of the children's commissioner in the first place. Amendment No. 9 says that the appointment of the commissioner should involve children and children's organisations. Consider the status of the other children's commissioners. In Wales, the appointment is made by the First Secretary of the National Assembly after taking account of the advice of the relevant committee, the views of relevant children and the advice of a selection panel independent of the Assembly. In Northern Ireland, the commissioner is appointed by the First Minister and Deputy First Minister jointly, independently of the Government. In Scotland, the commissioner is appointed by the Queen on the nomination of the Scottish Parliament. But in England, he will be appointed by the Secretary of State. That is very different from the arrangements that pertain in the rest of the United Kingdom, which is why the English commissioner is not going to be the best in the world. In a phrase often quoted in the House of Lords, it is all about big ears and no teeth.

Among the other amendments, one originally tabled by Lord Northbourne places in the Bill a necessity for the children's commissioner to take into account the views of parents and carers when dealing with children. Parents have a very special status, the most special status. The Government trotted out the usual routine about it being iniquitous to specify one set of people or organisations, but we think that that is tosh when it applies to parents, who clearly have a special status, hence amendment No. 13.

The Government have dealt disgracefully with all the hard work that went into putting together a comprehensive new clause 2 that had support across the upper House and has support on all Benches in this House, other than the Government Front Bench. That work was about making the children's commissioner a real children's champion who would stand up to represent children and be a part of their lobbies. The Government have taken away all those additional powers that would have made the Children's Commissioner for England the most powerful and impressive of all, and that is a missed opportunity.

I shall not refer at length to concerns about the Welsh dimension. I share them, and we tabled amendments on that in Committee. There will be enormous confusion over the relationship between the English commissioner and those of the other three nations of the United Kingdom. Given that we have devolution, let us have a system under which the four commissioners can talk to each other equally without treading on each other's toes, as will invariably happen. We foresee great problems in the future, which is a pity. This is a missed opportunity, and I ask the House to support new clause 1.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North 2:15 pm, 2nd November 2004

I speak in support of amendment No. 34, tabled by my hon. Friend Mr. Jones, and new clause 1.

We discussed issues relating to Wales at length in Standing Committee and in the Select Committee on Welsh Affairs. We have taken a lot of evidence, as my hon. Friend, who chairs the Committee, has said. The Government should listen to the Welsh Affairs Committee, whose views have been totally ignored. It is shameful that the Government have not taken more notice of what we have said.

The Government should also have taken more notice of the first children's commissioner to be set up in the United Kingdom, Peter Clarke, who has been in post for three years now. They did not even consult him about the shape and form of the new Children's Commissioner for England. That was a terrible failing. This is a good Bill and it is sad that issues remain that could have been sorted out. There is much to rejoice in, including today's good news from the Government, but it is sad that we have had to raise the Welsh dimension again today.

The overwhelming view in Wales is that the Government's proposals in clause 5, which amendment No. 34 aims to delete, would undermine the Children's Commissioner for Wales and be confusing to children in Wales. The Northern Ireland and Scotland commissioners also find the proposals undermining.

Clarity and simplicity seem to be the keys to any successful office. The Children's Commissioner for Wales has had a big impact and made a lot of difference to consideration of children and their rights. The Government have not consulted him or listened to him. What is happening is undermining him. Their proposals are a setback for Wales.

The Children's Commissioner for Wales already has the power to listen to any concerns raised by children. He has been into prisons to see children and he has related his findings to the police and worked hard on such non-devolved matters. Clause 5 gives the English children's commissioner the function of promoting awareness in Wales about non-devolved matters, without any proposal for him to have even a base in Wales.

Photo of Betty Williams Betty Williams Labour, Conwy

Is my hon. Friend aware that the president of the European Network of Ombudspersons for Children recently wrote to my right hon. Friend the Minister for Children emphasising that, under the job description that has been given, it is unlikely that the commissioner would be able to join the network. Not only is the commissioner in England likely to be a watered-down version of the commissioners already in place in the other UK nations, but the protection afforded would compare badly with what is offered by counterparts in Europe. I do not believe that English children are uniquely undeserving of a real commissioner.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for that intervention, and I support what she says.

The English children's commissioner will operate without knowledge of the Welsh context or of the interface between devolved and non-devolved matters. Peter Clarke and the children's commissioners for Scotland and for Northern Ireland have condemned the proposed model and said that it is a recipe for confusion. Peter Clarke said that if he visited secure accommodation in Neath and saw two children, he would be responsible for the one who had come in through the care system but not for the other if that child had come in through the juvenile justice system, because the latter child would come under the remit of the English children's commissioner.

That is bound to cause problems and difficulties. Our duty is to children in Wales, and we must ensure that those who have problems are clear about where they should take them. It is very sad that we have been unable to come to an arrangement that is satisfactory to everyone in Wales.

Clause 5 also allows the English Secretary of State to direct the English children's commissioner to undertake inquiries in Wales. That means that an English Minister can ask the English children's commissioner to conduct an inquiry, in Wales, into a case involving a Welsh child. That is a recipe for confusion, and it calls into question the independence of the Children's Commissioner for Wales. I do not see how a person who can be directed by a Secretary of State can be called "independent".

The Government are pinning their hopes on the commissioners being able to liaise with each other by means of a memorandum of understanding. This House should be giving out the clear message that the arrangements that we are making will best serve the interests of children in Wales. I am sorry that the Government have not listened to the Welsh Affairs Committee, the Children's Commissioner for Wales or to children's organisations in Wales, because it means that they have not listened to those who work most closely with children in Wales.

The Welsh Affairs Committee produced an excellent report on this matter, but the Government's response was very disappointing. I hope that my right hon. Friend the Minister will tell the House what she intends to do to tackle those problems.

Photo of Margaret Hodge Margaret Hodge Minister of State (Education and Skills) (Children)

I want to begin by assuring all hon. Members that the Government have listened to other opinions, throughout this debate and in connection with every clause in the Bill. The range of amendments that the Government have tabled, in respect of the children's commissioner and of other matters, is proof of that. Not every interested party will agree on every aspect of the Bill, but that is another issue. We have been engaged in a thorough process and have tried to listen to all the issues that people have raised.

In the little time that remains, I want to go back over the principal issues, and the question of whether we are establishing a powerful and strong champion for children. I shall then turn to the issues raised by those of my hon. Friends who represent constituencies in Wales.

I repeat what I said in Committee: I believe that the commissioner for English children that the Bill establishes—who will also have responsibility for British children on non-devolved issues—will be an extremely powerful and effective champion on behalf of children. In framing the commissioner's powers and duties, we have had regard for the UN convention on the rights of the child, which is why we listened to the arguments in support of amendments tabled in the upper House. As a result, the commissioner must have regard for the UNCRC, which proves that his work has its basis in children's rights.

However, we have also said from the start that we do not wish to establish in England a commissioner whose primary purpose is to police individual rights. A panoply of structures exists already—in the courts and various tribunals—that ensures that individuals can pursue their rights. The commissioner will have the duty to oversee those systems, ensuring that the complaint mechanisms and tribunals work and that the courts defend individual rights.

Yet we also want the commissioner to do more. We want him to look at the outcomes that children and young people say are important, and at the much wider picture of children's lives. He would report to Parliament and elsewhere on all those important matters. As I said in Committee, if a commissioner were in place today, he would be looking at matters such as how children and young people are portrayed in the media, their position in the criminal justice system, and child obesity. The commissioner may well also look at other important issues, but if he had to focus on policing individual rights, he would have no time to do anything else.

I assure the House that under the general functions laid out in clause 2 the commissioner will be independent and able to look at any issue or question. He will be able to initiate inquires into any case that has wider significance and public policy implications. That is another example of how the Government have listened.

The commissioner will have total discretion over the budgets that he commands, except for the normal considerations of propriety. Another sign of the Government's willingness to listen is the fact that the commissioner will have access to children—a provision that we introduced to the Bill. In addition, the Government have amended the Bill to ensure that the commissioner can seek responses to the inquiries and recommendations contained in reports that he compiles. The commissioner will report annually to Parliament, and I hope that the relevant Select Committees will hold him to account.

Finally, I remind Tim Loughton that the word "rights" does not appear in the legislation setting out the functions of the disability rights commissioner.

I turn now to the issues raised by those of my hon. Friends with constituencies in Wales. Like them, the Government are anxious to ensure that children in Wales are no less well served by their children's commissioner than their counterparts in England would be. However, we must work within the devolution settlement as it stands. I know that some of my hon. Friends find that difficult, but we do not want the children's commissioner—who will report every year to this House through the Secretary of State for Education and Skills—to relinquish all responsibility for matters in Wales that remain the responsibility of Westminster.

Certain hon. Members have argued that we cannot change the devolution settlement in the context of this debate. I agree, and that is why we tabled three new clauses in Committee to clarify the role of the children's commissioners in Wales, Scotland and Northern Ireland, and to enable all the UK commissioners to work together on non-devolved matters. Those amendments were accepted and now form part of the Bill.

We envisage that, in practice, the commissioners will draw up informal ways of working together on non-devolved issues that will be child friendly while at the same time remaining within the terms of the devolution settlement. To deprive children in Scotland, Northern Ireland or Wales of the services of the children's commissioner in respect of non-devolved matters would not enhance those children's national identity or culture. They will simply lose the services of a commissioner who has a general overview and represents all our children in matters affecting the United Kingdom as a whole that are decided in Westminster. They will therefore be worse off than their counterparts in England. I cannot believe that that is the wish of my hon. Friends in tabling those amendments or of the House, and I hope—

It being half past Two o'clock, Mr. Deputy Speaker, proceeded to put the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House divided: Ayes 166, Noes 286.

Division number 301 Orders of the Day — Children Bill [Lords] — New Clause 1 — Children's Commissioner: functions

Aye: 165 MPs

No: 285 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Abstained: 1 MP

Abstaineds: A-Z by last name

Question accordingly negatived.

Mr. Deputy Speaker then proceeded to put forthwith the Question necessary for the disposal of the business to be concluded at that hour.