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Children Bill [HL]

– in the House of Lords at 5:55 pm on 4th May 2004.

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On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Tordoff) in the Chair.]

Clause 1 agreed to.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

moved Amendment No. 1:

After Clause 1, insert the following new clause—

"Qualifications for Commissioner

(1) The Commissioner shall have had ten years practice as either—

(a) a residential social worker;

(b) a child psychotherapist;

(c) a health visitor;

(d) a youth worker; or

(e) a child care worker; or equivalent professional practice in direct work with children.

(2) The Commissioner shall have had experience of professional practice in direct work with children not less than one year prior to his appointment."

Photo of The Earl of Listowel The Earl of Listowel Crossbench

The purpose of this amendment is to probe the Government on the qualification and selection of the Children's Commissioner. It has been my concern, and that of some social workers I have spoken with, as well as the Royal College of Nursing, that the commissioner should have some substantial first-hand experience of professional work directly with children. This is the assurance I am seeking from the Government in this particular amendment.

I also feel it important that the commissioner has this experience of being part of the childcare workforce, broadly speaking, over many years, and that that experience is relatively current, because we recognise—and the Government most definitely recognise—that it is in the area of the childcare workforce that we have so much to do to improve outcomes for children. Perhaps this is the point to say that, when we think about children, it is good to have the focus on children; but we must recognise that most children exist within a family, or within a caring context, where they are more or less dependent and it is essential that the carers are well-supported. Regrettably, this has not been the case so often in the past.

I am very glad, if I may say so, that my noble friends Lord Northbourne and Lady Howe, among other Peers, have put down amendments to the Bill concerning the inclusion of parents and families. In previous and recent discussions, the noble Baroness has implied—and I hope I am not misquoting her—that she regrets the fact that parents were not included more in the deliberations and consultation on this Bill, and that this is a matter she is now seeking to address.

We are short of 6,000 foster carers in England. They have not been supported in the past as they should have been. Until recently, 80 per cent of residential workers had no relevant qualification for working with perhaps the most vulnerable children in our society. In the secure estate only last week, a 15 year-old boy was killed following control and restraint intervention at the Rainsbrook secure unit. There are steps forward within the secure estate and I do welcome them, but if we compare our practice in this country with that followed on the Continent we see that in most cases such a boy would not be placed in a prison in the first place, and might well find himself in a children's home where most of the practitioners would have three years' relevant qualification and training to work with such troubled young people.

When I listened to the response of the noble Lord, Lord Bassam of Brighton, in the Chamber last week to a Question on the boy's death, he said the officers working at that establishment are licensed. I thought he meant that they are licensed in childcare, but what he was actually saying was that they are licensed in the application of restraint on children. That, of course, is very important. However, prison officers dealing with 16 and 17 year-olds can be trained for nine weeks. They may then do two or three days' further training, after which the only mandatory training is in control and restraint: yet they can work with these vulnerable children. I understand that the training at Rainsbrook is similar. These examples illustrate the huge mountain we must climb as regards the childcare workforce and its neglect. There should be an assurance that whoever is charged with the post has real experience in the subject.

Perhaps I may give an example of someone who exemplifies that experience. I refer to Peter Wilson, recently retired, who for the past 10 years nurtured the YoungMinds charity dealing with the mental health of children. He trained and practised for many years as a child psychotherapist and his wife is a psychotherapist. He is totally imbued in the work. I have taken his invaluable advice on many occasions and he has instructed me on how to prioritise and choose the most important project where the interests of children are most in danger.

The commissioner needs to have that kind of experience in order to select from a range of projects presented to him those which are the most important for children. I look forward to the Minister's response and I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs 6:00 pm, 4th May 2004

I rise to speak to Amendments Nos. 2 to 7. Amendment No. 2 seeks to involve children in the appointment of the commissioner. If the commissioner is to be someone who feels sympathetic towards children, who they will feel confident to speak to in confidence, who is able to speak to them and be understood, who uses their language and yet has credibility in their sight, children must be involved in his appointment. Experiments have been carried out by various organisations involved with children in the selection of professionals. For instance, many teachers have been appointed with the involvement of children. The NSPCC, in which I express an interest as parliamentary ambassador, has often used children to assist it in the appointment of staff. The children take the task extremely seriously and often show maturity beyond their years. Their input can be extremely valuable because sometimes they can be more perceptive than adults in getting beneath the surface that we all show at interview.

Amendments Nos. 3 to 7 relate to the appointment and terms and conditions of the commissioner. The Bill proposes that the children's commissioner is to be appointed and discharged by the Minister of State; that he will report to the Secretary of State rather than to Parliament; and that he will have his subject set by the Secretary of State. Concern has been raised that being answerable to Ministers will affect the independence of the children's commissioner. The Minister will know that the independence of the commissioner exercises many noble Lords.

Perhaps I may quote from the ninth report of the Joint Committee on Human Rights. It states:

"existing arrangements are insufficiently independent from Government to ensure that the rights and interests of all children in England are fully protected . . . independence is the key value that a Children's Commissioner would add to existing mechanisms . . . We favour [a commissioner] independent from but working closely with central government and other agencies".

The Government may contend, and the Minister may be about to tell us, that the Nolan principles address this concern. However, these amendments have been tabled with the aim of probing whether there is an alternative model of selection which would retain parliamentary accountability but increase independence from the Executive.

I do not propose to go into a great deal of detail about how the model might work in practice because these are probing amendments. Briefly, Amendment No. 3 proposes that the children's commissioner will be appointed not by the Secretary of State but by Her Majesty on the nomination of Parliament. Amendment No. 4 proposes that Parliament will set the terms and conditions of the commissioner. Amendment No. 5 proposes that if he resigns, he must do so in writing to Her Majesty. Amendment No. 6 proposes that he would not be removed from office by the Secretary of State but by Her Majesty after addresses from both Houses of Parliament. That would ensure that he could be dismissed only with parliamentary approval. Of course, although I have said "he", I mean "he or she".

Amendment No. 7 would mean that the Secretary of State would not control remuneration and funding. It would be done by Parliament to such an extent as may be sanctioned by the Treasury. Therefore, the system of funding would also be independent from direct ministerial control.

We have not just invented this model; it is drawn from other successful models of appointment used, for example, for the Parliamentary Commissioner for Administration, the National Audit Office and the Commissioner for Children and Young People in Scotland. The Parliamentary Commissioner for Administration is appointed by the Crown under Letters Patent on the advice of the Prime Minister. The Scottish Commissioner is appointed by the Crown on the nomination of Parliament.

The method by which Parliament would select the Children's Commissioner could be as follows, based on the National Audit Office model. That is the purest example of parliamentary accountability almost fully separated from the Executive. The chief executive of the NAO is appointed by a resolution of the Commons on a Motion which must be moved jointly by the Prime Minister and the chairman of the Public Accounts Committee. The chief executive is answerable to a non-statutory board—the Public Accounts Commission. This comprises the chairman of the Public Accounts Committee, the Leader of the House of Commons and seven Back-Benchers appointed by the House.

Therefore, a model such as this—I do not intend to be too prescriptive—would ensure that the appointment and the terms and conditions of the commissioner would be as independent as possible from the Executive. I hope that the amendments receive a fair wind from the Minister.

Photo of Lord Rix Lord Rix Crossbench

In supporting Amendment No. 2 in the name of the noble Baroness, Lady Walmsley, and others, I must first declare an interest as president of the Royal Mencap Society. Furthermore, I am not certain that the amendment as currently drafted goes quite far enough. Amendment No. 2 suggests that:

"The Secretary of State must take reasonable steps to involve—(a) children".

I would have liked that to have read,

"(a) all groups of children, including those with disabilities".

Later in Schedule 1, the appointment of staff is dwelt upon. Can the Minister assure the House that there will be effective equality and disability training before such staff are allotted their various tasks?

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I support Amendment No. 2 in particular. It is important that children are involved in what is, after all, their Bill. They should be involved in every aspect of it and certainly in the selection of the English commissioner.

Many years ago, when working for the principal of the Architectural Association School of Architecture, I discovered that students were part of the governing body and that they took part in selecting the principal of the school. In those days, that was an unusual occurrence.

Over time, there has been much more involvement of the individuals concerned with an organisation in the selection of people appointed to it. However, from the point of view of independence and its verification and the crucial need to involve children from an early age in citizenship issues, I support the amendments and that one in particular.

Photo of The Bishop of Manchester The Bishop of Manchester Bishop

I add my voice to those who have supported the idea of children being involved in the appointment of the commissioner. However, I am aware of the difficulties and nuances which exist in appointment to any office. What do the Government have in mind in terms of guidance and training for the children who are to undertake the task?

Photo of Lord Hylton Lord Hylton Crossbench

While I understand some of the enthusiasms of noble Lords who have spoken to the amendments, I hope that the Minister will take into account the extraordinary range of ability—mental and other—and the general capacity of children to make responsible choices in such matters. We do not want to be carried away by great currents of enthusiasm; we need to consider the matter coolly and objectively.

Photo of Lord Northbourne Lord Northbourne Crossbench

I agree with those who have spoken about the importance of consulting children, although we must not get the matter out of proportion. However, if the Government were to accept the amendment it seems to me odd that the only people to be consulted would be, on the one hand, children, and on the other, organisations; not, for example, any individual or parents who have parental responsibility and therefore frontline knowledge in relation to the child.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I apologise for being a few minutes late and therefore having to gather where I am in the debate and which clauses are being addressed. Perhaps someone will put me right if I find myself in the wrong place.

I have some concerns about the suggested amendment in relation to the appointment of the commissioner, possibly by Her Majesty the Queen. One of the things that has always concerned me about the existing commissioners and the present suggestions is the accountability of commissioners. I have not been able to work out to whom the Welsh commissioner is accountable. I have always thought that it might be more appropriate that commissioners worked to perhaps a non-departmental public body or a board of some kind.

I have concerns about placing so much emphasis—and faith, if you like—in one individual. I have had experience recently—and much in the past—where people appointed to very senior positions have not always turned out to be what one expected. Therefore I believe that the accountability needs to be to the Secretary of State, which may be unpopular with some of my voluntary colleagues. Such accountability will ensure that, should there be difficulties, that person can quickly be held to account; whereas in other circumstances if it comes through a parliamentary discussion, if the matter has to come back to Parliament twice as the amendment appears to imply—I may have misunderstood—it could take a length of time that could bring the institution into disrepute.

I have seen another organisation where that happened; where the whole organisation was brought into disrepute. While I am on my feet I add that I hope we will find a proper way of consulting children and young people. Can we also say "young people"? Adolescents perpetually find themselves out of the loop, not receiving the general concern and emphasis, and on the whole they do not like to be called children; they like to be called young people. On the whole we are likely to be consulting young people rather than small children, because they are likely to be able to make an assessment and take part in such an appointment system.

I am sure that we will find a way in which that can happen properly and proportionately, but I have reservations about accountability.

Photo of Lord Puttnam Lord Puttnam Labour

I rise on behalf of these Benches. I added my name to Amendment No. 2 and I declare an interest as president of UNICEF UK, one of the organisations that will undoubtedly be involved in any such discussions with the commissioner.

I want to make a more general point. The creation of a Children's Commissioner is a welcome move, for which people have lobbied for a long time. It is the second time in my brief career in your Lordships' House that I have been involved in such a situation. The previous time was over the formation of the General Teaching Council, for which I drew the long or short straw—depending on one's point of view—as the inaugural chair.

I chaired that organisation for two years and discovered the hard way that if one does not get the detail right in the creation of an organisation, no matter how welcome and acclaimed it might be, it can create impossible problems later. The General Teaching Council has suffered immeasurably from the poor legislation that was allowed to slip through the House six years ago. I shall be on my feet frequently during the next couple of sittings of the Committee to make that point. There are a number of ways in which this legislation could be improved. I welcome it enormously and I hope that I do not make a nuisance of myself. I am extremely keen that the same mistakes are not made twice.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 6:15 pm, 4th May 2004

Like other noble Lords who have spoken I welcome the creation of a commissioner for England and the extension of the concept of the Children's Commissioner. As noble Lords are aware, a Children's Commissioner has already been in place in Wales for some time, so there is an experience to be drawn on. It is based on that that I wish to support Amendments Nos. 3 to 7, to ensure that the England/UK commissioner functions beyond the political arena and to make the commissioner as independent as possible.

The experience in Wales has demonstrated that the Children's Commissioner needs to be independent. He has challenged the Assembly over its implementation of the Assembly's strategy on child and adolescent mental health. Such strategies are by their nature in large part political because they are often driven by the political background behind their development. The challenge laid was informed by the views of children and young people. That kind of challenge impacts on local and central government and on other agencies for the benefit of children. It is only with independence that such a challenge can be placed.

Photo of Lord Elton Lord Elton Conservative

May I chime in at this point with an apology for arriving three minutes late and missing the introduction to the debate by the noble Earl, Lord Listowel? I feel a passionate enthusiasm for giving the commissioner security of tenure. By all means let him be responsible or answerable to a Secretary of State or whomever, but let him not be dismissible thereby under any ordinary procedure.

I have sadly just come from the memorial service for the late Stephen Tumin, who was a great example of what a thorn in the flesh of officialdom an official in such a position can be. Were he not protected by statute I suspect that the commissioner would not long survive confrontation with a government with whom he disagreed about some fundamental right of children. Therefore I am in support of the principle behind the amendments that give him such security.

Photo of Lord Prys-Davies Lord Prys-Davies Labour

I support the principle of Amendment No. 2. To the best of my knowledge it is not without precedent. Children were involved in the appointment of the Welsh commissioner—no doubt my noble friend can consult with the commissioner for Wales. I believe that the amendment should be supported.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

This has already been an interesting debate that has ranged across a number of issues that will be tackled in greater depth as we proceed through the Committee stage. The group of amendments is about the appointment of the Children's Commissioner. Amendment No. 1, as the noble Earl, Lord Listowel, so ably set out, specifies the particular experience the commissioner should have. Amendment No. 2, supported across the Committee, will provide for the involvement of children and young people and children's organisations in the appointment of the commissioner. Amendments Nos. 3 to 7, tabled by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Lester, will provide for the commissioner to be appointed by and accountable to Parliament rather than to the Secretary of State.

I have a great deal of sympathy with the underlying thrust of Amendment No. 1. I believe that the noble Earl is looking for a commissioner who has a real feel for, and understanding of, the position of children and young people—indeed, the noble Earl and I discussed this point earlier today—including, I surmise, those from the most disadvantaged backgrounds; hence, the list that appears in the amendment.

In principle, I support the idea that the commissioner must win the confidence of young people and children in many different circumstances and convince them that he or she is able to reflect fairly their views and to work on their behalf. For me, the watchword in relation to the individual and the office is "confidence". That means that the officeholder must have a certain set of skills, but I am not convinced that a list of professional skills is required—hence, I do not support the amendment. I have met charismatic psychotherapists, social workers, youth workers and many others who work with children, and I have met many other people who I believe understand how to talk to children who have different knowledge, who come from different backgrounds and who react to adults very differently.

Therefore, the premise upon which we wish to appoint the commissioner is that that individual will have the ability to win the confidence of children and will know how to listen to them and when to seek advice on how to listen to them and will ensure that children's views, ideas and best interests are taken to the heart of the work of the office. On that basis, and with an assurance that we shall be seeking credibility and approachability together with experience, I hope that the noble Earl will feel able to withdraw his amendment.

As for the appointment process, which is raised in Amendment No. 2, it is nice to be able to say "yes". I can confirm to the noble Lord, Lord Rix, and others who are concerned about this issue that it is our intention to involve all children and young people directly in the appointment of the commissioner. That point was made to us by children and young people during the consultation process. The selection process will be in keeping with the code of practice of the Commissioner for Public Appointments.

We shall also be looking to address the point made by the right reverend Prelate based on the experience of colleagues elsewhere—particularly those in Northern Ireland and in other commissions. Noble Lords may know that we have already sought the views of children's organisations in establishing a children and young people's board within the Department for Education and Skills. We would expect that board to play a role in the appointment of the commissioner and, in that way, the matter of taking into account the views of organisations would be addressed.

I do not envisage that children's organisations will participate in the selection process of the commissioner for children and young people. As I have already indicated, the commission must take its authenticity, and indeed authority, from children and young people. Therefore, young people—rather than adults, however well meaning, who speak on their behalf—need to be involved in the appointment. I hope that noble Lords will feel content that I have answered that point appropriately and that they will not wish to press Amendment No. 2.

I know that Amendments Nos. 3 to 7, to which a number of noble Lords, led by the noble Baroness, Lady Walmsley, spoke, are inspired by the wish to see a commissioner who is independent of government. I can assure noble Lords that that is also the Government's intention, and we believe that that can be properly ensured in this part of the Bill. I know that we shall have many discussions on the issue of independence at other stages of our deliberations in Committee. However, we believe that independence will be achieved through the normal procedure of the appointment being made by Her Majesty's Government through the Secretary of State.

As noble Lords will be aware, the commissioner will be accountable to the Secretary of State, who is, in turn, ultimately answerable to Parliament for the actions and responsibilities that he undertakes. I say to the noble Baroness, Lady Howarth, that the Children's Commissioner will head a non-departmental public body. The office will be set up through the normal democratic process. We believe that propriety will be assured by the rules governing public appointments and that that is the right way to approach the appointment. Notwithstanding that, as I have already indicated, during the course of our debates there will be other opportunities to consider properly and fully the extent to which we have ensured that the theme of independence runs throughout the Bill.

I turn to the suggestion that the appointment be made by Her Majesty the Queen. In practice, the Government will be expected to carry out the appointment and to operate on Her Majesty's behalf. Therefore, in any event, I am not sure that the amendment would have the effect that the noble Baroness seeks. With the proviso that we are reflecting on the whole issue of independence and shall deliberate and discuss that further during the course of the Bill's proceedings, I hope that the noble Baroness will not press her amendment.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I thank the Minister for her helpful reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Children's Commissioner]:

[Amendments Nos. 2 to 7 not moved.]

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

moved Amendment No. 8:

Page 33, line 31, leave out "and on such conditions (if any)"

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I shall be very brief. This is yet another amendment which seeks to ensure that the Children's Commissioner is independent. Its intention is to probe what the Government mean by the words,

"and on such conditions (if any)", in paragraph 7 of Schedule 1. Those of us who are exercised about the independence, and thereby the credibility, of the Children's Commissioner believe that if the Secretary of State were to impose conditions on the funding of the commissioner, that would prejudice the independence of the office holder. As all politicians know, the power follows the money. Therefore, I am most anxious to hear the Minister's response. I beg to move.

Photo of Earl Howe Earl Howe Conservative

I support the amendment, which highlights what, to me, is an unacceptable and unnecessary fetter on the independence of the commissioner. It seems to me to be one thing for the Secretary of State to decide what the commissioner's annual budget should be but quite another for him to dole out the budget with strings attached to it.

As expressed, the provision in paragraph 7 amounts to a blanket power of direction. One can imagine the Secretary of State wanting to ring-fence money intended to fund, let us say, a formal inquiry, but allowing him to impose conditions on the use of any or all of the commissioner's budget is, I think, over the top. I hope that the Minister can reassure us on that point and, even if she does so, I hope that she will also agree to have another look at the wording.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I, too, have added my name to the amendment. On the issue of independence, I believe it is particularly important that nothing in the Bill seems to limit that independence. The matter of security of tenure was raised. These are all aspects which could be used to impose conditions one way or another on the work of the commissioner.

Obviously this is a probing amendment and it would be interesting if the Minister could tell us the thinking behind inserting into the Bill the phrase that we are seeking to remove. It seems to go a little too far. A budget for a body or quango such as will be led by the commissioner is set in general terms and, in my view—and certainly from my experience—it should be left to the organisation to spend in the most useful way that it considers appropriate.

Photo of Lord Puttnam Lord Puttnam Labour

I added my name to the amendment because I am fearful of our old enemy "unintended consequences". While I accept that the Bill has been brought before the House by a Government who wish to have a Children's Commissioner, I am very concerned that, 10 or 15 years from now, we may well find ourselves with a government who do not want a Children's Commissioner and who would find this rather open-ended invitation to get rid of the commissioner almost too good to resist. I should very much appreciate it if the Minister could find a way to lose the words in precisely the manner that we have indicated.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions) 6:30 pm, 4th May 2004

I am grateful for the opportunity to explain precisely what is in our minds in the wording of the Bill. As noble Lords are aware, the Secretary of State will make regular grant payments for the commissioner, in order for the commissioner to discharge the functions conferred on him or her by the legislation.

It is a standard condition of payment that the money is spent on functions within the scope of the commissioner's legislative powers. Another example might be that reimbursement of travelling costs would be within agreed rates, which is standard practice. The reason that this wording exists is that it mirrors Schedule 2 paragraph 14 of the Care Standards Act, under which the National Assembly for Wales funds the Welsh commissioner. We have indeed thought to look very carefully at how that works.

But let me be absolutely clear and stress that there is no intention for the Secretary of State to stipulate how the commissioner should spend the annual grant paid to him, beyond the basic condition that it should be spent on the functions that have been conferred on the commissioner. It will be for the commissioner and not the Secretary of State to determine the priorities, and how the commissioner spends their time and money on different issues.

As the noble Earl, Lord Howe, said, a condition which it might be reasonable to attach to a particular payment would be if there was a supplementary payment, in order for the commissioner to undertake an inquiry under Clause 4. In that case, of course the Secretary of State would wish the additional money given for that inquiry to be spent on that inquiry. We are taking this power only in order to ensure the appropriate use of public funds. The money must be spent on the functions conferred by Parliament, not at all to limit the commissioner's independence. I hope with that assurance that noble Lords will feel able to withdraw the amendment, particularly as I have indicated that it mirrors what happened with the Care Standards Act in order to set up the functions of the Welsh commissioner.

Photo of Lord Elton Lord Elton Conservative

I do not know that I am entirely reassured by what the noble Baroness said, for the reasons which have already been given—that the intentions of the present Government may not be the intentions of a successor government.

If the main or only purpose of these words is to see that the commissioner spends his money only on his functions, it would be perfectly possible to put that on the face of the Bill rather than giving an open-ended cheque—an open-ended power—to limit his expenditure to anything that the Secretary of State thinks his expenditure should be limited to. Equally there may be other formulae to deal with the other difficulties that the noble Baroness sees. I hope that this is not a point that we shall lose sight of at a later stage. Indeed, if noble Lords have been thinking about the ways in which that could be dealt with now, they might like to join in at this moment, because that is a matter of some importance.

Photo of Lord Lucas Lord Lucas Conservative

If I wish to give a sum of money to someone to do something, I have a contract, and that seems to be the right way in which the Secretary of State should deal with this commissioner if they want them to do some extra work. They would say, "Here, you can have £50,000 if you will do this work. Sign here. All done. Tick. Off you go". To have this wording in the Bill merely to substitute for that, in a rather inadequate way—because after all it hardly specifies anything—opens up all the dangers which have been specified by my noble friend and others who proposed this amendment. The wording is so wide, it could be used for anything. It has no function. The noble Baroness has not outlined a function that cannot be easily replaced in other and safer ways. It really should go.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I too am rather concerned by the points that have been raised. I would like to know what there is to prevent the Secretary of State giving money for a particular purpose without putting anything about it on the face of the Bill. The point that has been raised about unintended consequences is very important. I hope that the Minister will be able to give it a little more thought.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I will try to give noble Lords more information if I have it, but my understanding—which has clearly been challenged, and if it is wrong then rightly so—is that that is a standard process to ensure that public money is used for the purposes in which it is taken forward, and in this case given to the new commissioner. But if there is strength of feeling in the Committee, I shall look again to see whether that wording does reflect what has happened in previous legislation and have appropriate correspondence or conversations with noble Lords for whom that is clearly an important issue, to see if we might resolve that.

Photo of Lord Elton Lord Elton Conservative

Before the Minister finishes, could I clarify something? It seems that we are agreed that the commissioner should spend public money on the commissioner's functions and no other. The noble Baroness suggests that common form requires that the Secretary of State should be able to say, "You shall spend it on this function and not on that function". In other words, the Secretary of State can prioritise the work of the commissioner. That would be the effect of what she is saying. I hope that it is not her intention.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

It is certainly not my intention and I apologise if that was the effect. I was trying to say that the way in which one would expect public money to be used would be that it is conferred upon the commissioner within the commissioner's defined role, and not to be spent on something outside that role. Within that, it is for the commissioner to determine the priorities and the way in which the money is spent.

The only additional point I made was that if there were additional resources given for a particular inquiry, noble Lords would expect the Secretary of State to say that money is for the purpose of that inquiry. That would be the only other stipulation. However, as always, if my clarity is less than it should be, I will ensure that I correct that by correspondence and pursue that with noble Lords.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I am most grateful to the Minister for her efforts to clarify the situation, and particularly for her promise to have a look at whether the concerns of noble Lords can be addressed. I am grateful to all noble Lords who have supported this amendment. I felt that the noble Lord, Lord Puttnam, made a very good point about the possibility of a future government using something like that to squeeze out a commissioner that they may not want. I particularly echo the first intervention of the noble Lord, Lord Elton. He reflected exactly what was going through my mind as the Minister spoke; he was quicker to his feet than I was.

However, I am particularly heartened to hear the Minister rely on the wording of the Care Standards Act, which created the Children's Commissioner for Wales. I hope that later in our discussions she will be relying in a similar way on the Act that gave the Commissioner for Wales his powers and independence. Perhaps I may threaten the noble Baroness that those words may come back to haunt her later in Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 2 [General function of Commissioner]:

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

moved Amendment No. 9:

Page 1, line 8, leave out "awareness of the views" and insert "and safeguarding the rights"

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

In moving Amendment No. 9, I shall speak also to Amendments Nos. 13, 14, 17, 20, 22 and 39.

We now come to a very important principle that is close to the hearts of many noble Lords. The principle that holds this whole group of amendments together is that children's rights should be enshrined in the powers of the Children's Commissioner. I will briefly go through what these various amendments do.

Amendment No. 9 is arguably the most critical of all this group. It would change the functions of the commissioner to one of promoting the rights and interests of children. As the Bill currently stands, the general function is so weak that it violates the Paris principles and the whole purpose of a children's commissioner as defined by the United Nations. In addition, the fact that the English commissioner would have a different remit from the commissioner in Scotland, Wales and Northern Ireland, would create a major inequality in the protection afforded to children in England compared to the rest of the UK, and make seamless collaboration between the commissioners and the jurisdictions rather problematic.

Amendments Nos. 13 and 14 ensure that anyone exercising functions that affect children have regard to their rights as well as their views and interests. In Amendment No. 17, rather than merely "consider" matters relating to the interests of children, the commissioner could review and report on any other matter relating to the rights, views and interests of children, which is a much more robust approach.

Amendment No. 20 means that the commissioner should indeed be able to make representations to the Secretary of State, but also any matter affecting the rights or welfare of children, and challenge government policy, or solicit government intervention where necessary. We believe that that is part and parcel of being a really powerful champion for children.

Amendment No. 22 removes any restrictions on the range of things that the Children's Commissioner may consider in relation to children.

Amendment No. 39 would ensure the Children's Commissioner "must" rather than "may" have regard to the United Nations Convention on the Rights of the Child. This absolutely essential change is needed to ensure the proper focus on children's human rights as enshrined in the convention, including the right to freely enjoy those rights without discrimination. We are, after all, supposed to be creating a human rights institution to give life to the rights set out in the convention.

I very much regret that the Government did not decide to use the UNCRC as their blueprint for a happy, safe and fulfilled childhood. The convention signed by the UK in 1991—and by all but two countries—provides a common vision and language for securing a good childhood for everyone. It gives a detailed strategy for meeting all of children's needs. The fact that it is so widely supported is part of its strength. It does not depend on race, creed, gender or economic circumstances. It is not aspirational. It is a convention to which the UK Government are a party. I should have thought that this Bill, which establishes a children's champion and a new framework of duties and responsibilities in the provision of children's services, would have been an ideal vehicle to enshrine the convention in UK law.

Many of us working on the Bill have wondered why the Government have proposed such a weak model. At Second Reading the plans for England's commissioner were criticised by noble Lords as "discriminatory". The commissioner was described as "castrated", "a government listening post" and "a public relations consultant". As a former public relations consultant I think that I should take exception to that criticism.

In an All-Party Parliamentary Group for Children seminar on the commissioners on 20 April, the Government's conception of the Children's Commissioner was characterised by one contributor as "big ears and no teeth". The proposals have been strongly criticised by existing commissioners in Wales, Northern Ireland and Scotland. The president of the European Network of Ombudsmen for Children has written to the Joint Committee on Human Rights explaining that with such limited powers and questionable independence it is unlikely that England's commissioner will be eligible to join the European network. I am sure the Minister would not wish such an indictment.

Why have the Government put forward such an idiosyncratic and weak model of a Children's Commissioner? I understand the Government's belief is that this is what children have asked for. But do children in England want a commissioner with no powers? The Government's decision to establish a commissioner was announced in the Green Paper Every Child Matters. The document contained little detail on the commissioner—just three paragraphs. There was no reference to children's rights or to the Convention on the Rights of the Child. Nevertheless, the promise of a children's champion, independent of government, was widely welcomed.

The Green Paper did not include any questions about the commissioner. There have been no specialist briefings or consultation events for children in England dedicated to exploring the children's role as, for example, there were in Northern Ireland. It is not surprising, therefore, that children have not expressed too much by way of opinion about the commissioner's powers.

During consultations children asked for a commissioner with similar aptitudes to the commissioners in Wales, Northern Ireland and Scotland. That did not stop those jurisdictions getting a commissioner with strong powers and independent of government. Children in England have not rejected a commissioner with strong powers. It is simply that discussions with children have so far focused on the commissioner's personal qualities and the issues that children hope the commissioner will work on.

If presented with the information on other UK commissioners and international standards, it is hard to imagine why children in England would choose the Government's "big ears and no teeth" model. Children in England have everything to gain and nothing to lose from having a commissioner who listens to them, understands them and has the necessary powers to change the way they are treated and protect their rights.

The Government seek to justify the commissioner's extremely weak powers by stressing differences in the child population size between England and Wales, Northern Ireland and Scotland. I agree that the size of England's child population presents a risk of the children's commissioner becoming swamped with formal investigations without safeguards. The potential is there for the commissioner to lose his or her strategic role.

However, instead of handing over to Ministers the power to determine when and how they can use their legal powers, strict criteria should be written into the legislation for the commissioner to follow. The current proposals suggest that the Government do not believe that the commissioner will act in the children's best interests without close ministerial supervision. That is a fundamental flaw and denies children the independent champion they were promised in the Green Paper.

All these amendments require children's rights to be enshrined in the powers of the commissioner. I and many of your Lordships believe very strongly that the Government should accept the amendments if they are really determined to give children in England the powerful and independent champion we all want. I beg to move.

Photo of Lord Rix Lord Rix Crossbench 6:45 pm, 4th May 2004

Perhaps the noble Baroness will answer one simple question. Why in Amendment No. 17 is the word "all" before "children" omitted, and yet in her Amendment No. 23 the word "all" is inserted, which is two lines later?

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I am most grateful to the noble Lord for the question. I agree with him that the word "all" would be an improvement to the amendment. However, I think that my amendment that inserts "all" would be a catch-all and would refer to all the powers and functions of the commissioner. I hope that that would cover the matter.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

Perhaps I may also ask the noble Baroness to clarify a matter for me on Amendment No. 9. I declare an interest as the co-chair of the All-Party Parliamentary Group on Children. As such, I am of course sympathetic to much of what the noble Baroness has said about children's rights.

However, I wonder why she wishes to take out "the awareness of the views" of children. A survey by the Children and Young People Unit a couple of years ago sought views on issues such as leisure and enjoyment. I do not have a copy of it here, but there was a fairly wide-ranging seeking of views. If you do not seek views, I wonder how you define what those rights should be. In other words, who defines the rights if you do not have the views of children to hand? I am just puzzled.

Photo of Lord Hylton Lord Hylton Crossbench

At Second Reading I tried to draw attention to the fact that in the Bill the Government appear at least—I hope it is no worse than that—to be setting up a commissioner for England with considerably fewer powers, duties and responsibilities than the comparable commissioners in Scotland, Wales and Northern Ireland. That is why I support the general thrust of the amendments.

I should just like to point out that the wording in Clause 2(2) is really quite feeble, although I agree that it is somewhat balanced by subsection (3). In passing, I would welcome subsection (3)(b), which concerns protection from harm, because I think that gives scope for covering the very great difficulties and problems surrounding children who have been trafficked into this country for purposes of exploitation.

Given the very real problems and difficulties that have arisen and still arise in England, which were well covered and extremely well brought to light by my noble friend Lord Listowel when he moved Amendment No. 1, I hope that the Government will be able to explain why a less strong measure is appropriate for England compared with the other jurisdictions.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

May I, with the Committee's permission, answer the question asked by the noble Baroness, Lady Massey, before we have all forgotten what she asked? Is that in order? She asked why I wanted to delete "awareness of the views" and put in "and safeguarding the rights". That is in the introductory subsection of Clause 2, which talks about the general functions of the commissioner. My intention in laying this amendment was to strengthen the general functions, and to put rights at the heart of it.

Of course, I agree with her that in doing so the commissioner must gather the views of children. That is absolutely crucial. However, if the noble Baroness looks at my Amendment No. 17, she will see that it covers getting the views of children, as does subsection (4), which involves consulting children and ensuring that they are made aware of his functions. Getting the views of children is covered, and removing it from that bit provides no detriment at all to the view that children's views must be gathered.

Photo of Lord Elton Lord Elton Conservative

Going back to questioning the Minister, the noble Lord, Lord Hylton, referred to the apparently weaker powers for the English commissioner compared with the other commissioners. Could she explain that issue in the context of the situation as I understand it, where the English commissioner will be answerable not only for all English issues, but for those Welsh and Scots issues that have not been devolved? Therefore, he has even bigger responsibilities, and one would have thought that he would need larger powers.

Photo of Baroness Whitaker Baroness Whitaker Labour

In speaking to an aspect of Amendment No. 17, much of what I say also relates to the other amendments in the group, which I also support.

This Government like presiding over improvements. They have already notched up many, particularly in matters to do with the lives of children, which has much to do with the part played by my noble friend the Minister. This amendment, which safeguards the independence in action of the Children's Commissioner, should commend itself to the Government as a critical improvement in this part of the Bill.

When I was responsible for the official oversight of the Health and Safety Commission and then the Equal Opportunities Commission, their freedom of action was fundamental to their usefulness to society and hence to the Government. I say "hence to the Government" because the immediate instinct of those who make the first draft of such statutes is to think how much more convenient it would be to have departmental control over the activities of the commission or commissioner in question. I have been there. However, it is necessary to take a longer view.

The really useful commissioner is the one who can go where the Government, with all their constraints, cannot so easily go; who can bring to bear a narrow and intense focus on a particular issue; who can expose or add together what the machinery of the state has not seen or added together. We are not short of issues that merit that kind of scrutiny.

Why is it, for instance that the children of Northern Irish Travellers have 10 times the mortality rate of their settled counterparts? There are many other examples. A Children's Commissioner needs a free rein to look into things like this if he or she sees fit. Our society will be the beneficiary, and so, ultimately, will the Government, if they have the courage and the self-respect to do so—I am sure that they have. It is not such a big step, after all.

I draw my noble friend's attention to the forthcoming report on the Bill by the Joint Committee on Human Rights. I will not read out into the record the evidence that is already on the website from the Welsh, Scottish and Northern Irish commissioners. I will just say that the evidence of all three commissioners casts serious doubt on the feasibility of having a UK commissioner with such markedly less independence and fewer powers than they have. Between now and Report stage, I urge my noble friend to take account of their evidence in redrafting the UK commissioner's powers.

It is normal for the commissioners set up by statute in this country to have the independence to choose what in their appointed field they will concentrate on. I urge the Government to overcome the timidity of the Bill's concept of a commissioner, and create a real children's champion through adopting this amendment.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I ask the Minister whether she can help me to tease out what I am finding to be an intellectual conundrum. It seems that rights must be central to a Children's Commissioner. Therefore, I strongly support Amendment No. 17, and the other points made by the noble Baroness, Lady Walmsley, about including rights in the Bill.

I do not really understand the timidity of the Government about including that. I do understand, as I said on Second Reading and earlier today, that there are some issues about a commissioner in England. There are real issues about 11 million children being represented, and how those children are represented by the commissioner. That makes me believe that this person should take—let us not keep saying "he", it might be a woman—a strategic view of the issues. Only then could the kind of issues that concern me, which I want someone like this to be able to intervene in, be dealt with.

I am concerned about issues such as ensuring that children in the criminal justice system somehow get noticed; that asylum children get noticed; that trafficked children get noticed; that children lost in hospitals, particularly disabled children, get noticed. If this person is taking an individual view of children's issues, not a strategic view, they will drown in casework. It might well be that they can look at some individual issues, and of course they will have to talk to children to be a real commissioner. The noble Baroness, Lady Walmsley, talked about having some criteria whereby that can take place. However, it needs to be restricted. The English commissioner is different. The countries in Europe that have commissioners are small countries with small populations. This is a new departure in England. I want this person to be truly powerful, and truly powerful means being able to look across the whole piece.

I also want them to be able to work with others. I have said before that we place too much emphasis on one individual; they must be able to work with all the other children's rights workers in the local authorities, the children's rights director in the Commission for Social Care Inspection, social workers and rights workers in CAFCASS and other organisations. That will be a huge task in itself, pulling together the views and issues that those people will raise with the commissioner on behalf of children. They will be talking to hundreds of children, and the "big ears" need to reflect the hearing of all of that. You can only talk to five children at once, and I do a lot of it. These people can talk to hundreds of children, and presumably the commissioner can gather that.

In all that, I fail to understand why we are so loath to include the word "rights" in the Bill, which seems so important, in a way that includes that strategic view. I do not think that the two things are necessarily intellectually separated.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 7:00 pm, 4th May 2004

I support these amendments, and I am signatory to at least one of them. The debate emphasises the concern that we all have about the weakness of this commissioner. Eleven million children will be represented, but is there any reason why the powers of the commissioner should be less strong than that of the commissioners of smaller countries? The word "rights" appearing throughout the amendments must show the right way of going about the matter.

A very valid point was raised about whether we should removed the words "awareness of the views". I signed the amendment myself. It is probably right that those words should remain. The views and rights of children are important for how effectively the role is carried out.

The most important change I seek is from "may" to "must" concerning the United Nations Convention on the Rights of the Child. It is crucial.

The briefings have been marvellous and detailed. We all give considerable thanks to the noble Baroness and her assistants for the attention we have received. I do not believe that any of us have had a satisfactory answer to the point I raised.

Photo of Lord Northbourne Lord Northbourne Crossbench

I give notice that if the rights of children are to be included in this Bill I shall be minded to add the words "and responsibilities".

Photo of Lord Puttnam Lord Puttnam Labour

I am one of the signatories to Amendments Nos. 9, 13, 14 and 39, the latter referred to by the noble Baroness, Lady Howe.

I grab the high ground again as the President of UNICEF UK. In the past l8 months I have visited Bosnia, Cambodia and Nigeria, looking into the issue of child trafficking, which the noble Lord, Lord Hylton, referred to just now. I cannot imagine that UNICEF would be effective in those countries were we merely to have regard to the interests of children. It is the ability to talk to governments based on the UNCRC document and the rights of children which allows one to put pressure on governments.

It is sad to say that a number of the children end up in this country. The notion that we should have less ability to tackle the issues in the United Kingdom than we have in other countries is quite ludicrous.

I am very proud of the fact that the United Kingdom was one of the drafters of the UNCRC. It is quite absurd that we would not incorporate that on the face of our own legislation. I urge the Minister most strongly to do that. As he is aware, I have had a significant amount of correspondence with the Minister of State in another place. I have received an enormous amount of sympathy and understanding on the issue from the Minister. The issue will not go away. If the Bill becomes law without the provision it will be weak legislation. I do not think it would bring much credit to this country or this House were we to allow it to happen.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I concur with the noble Lord, Lord Puttnam. Amendment No. 9 is very important. It is consistent with the United Nations Convention on the Rights of the Child and with the important role that children's commissioners play worldwide in the promotion and monitoring of the implementation of the Convention on the Rights of the Child at national level.

Amendment No. 17 would ensure that the views and interests of children are represented. It has been said that the Children's Commissioner in England and the United Kingdom is "outcomes based" whereas those already in place in the United Kingdom are "rights based".

Human rights, as defined in the UN convention, would strengthen the England-UK commissioner, particularly as the Bill itself proposes, that he or she would be working on non-devolved issues as regards the areas already covered by the three commissioners now in place. I fear that without the champion having to work to the UN Convention on the Rights of the Child, the real role will not be achieved in practice.

Like others, I ask the Minister why the Children's Commissioner could not have an effective strategic role if these amendments were accepted. While the wording of the amendments before us today may not be perfect, the underlying principle is of fundamental importance. Like others, I do not understand why it is not on the face of the Bill.

Photo of Earl Howe Earl Howe Conservative

One matter was quite clear from our Second Reading and that was that most people's idea of what the role and functions of the Children's Commissioner should be was completely at odds with what the Government thought they should be. The noble Baroness, Lady Walmsley, very ably pointed out the inherent contradiction in the Government's position. In one breath they talk about having a children's champion independent of government. That was a phrase which everyone was delighted to read and hear. Yet in creating this champion they are not giving him any of the tools to do the job.

A great deal is said these days about children's rights. I believe that they most definitely do have rights and that in most situations and for most of the time those rights are defended perfectly satisfactorily by parents. But sometimes that cannot happen. Some children have no parents; others are let down or betrayed by them. Others are detained in custody. There are some children's rights which even good and loving parents are incapable of defending, which are the rights of children as reflected in legislation passing through Parliament.

In these contexts it is up to public authorities and Parliament to protect the rights of children. That principle has been recognised in Scotland, Wales and Northern Ireland in the form of a Children's Commissioner. Why on earth cannot we also recognise it in England?

Listening to what children want is obviously an important part of the equation, as the Bill suggests, but it surely cannot be the whole equation. Neither are children's interests the whole story. To be worthy of the name, a children's champion has to look beyond the fulfilment of children's wishes to defending their rights. Children need a champion because very often they are not in a position to defend those rights themselves.

The UN convention is not about the wishes and interests of children, but about rights. As the noble Lord, Lord Puttnam, pointed out, the UK signed up to it because, not to sound too pompous about it, we believed that it was important for us as a society to make public and binding promises to our children. A Children's Commissioner is perfectly placed to be the guardian of those promises provided of course that he or she is independent. Then if ever the convention's promises appeared to becoming politically inconvenient for a government, a commissioner could ensure that they were adhered to.

As the noble Baroness, Lady Walmsley, said, having an independent person to undertake the process of monitoring, promoting and protecting children's rights is what the convention urges, if not obliges us, to do, backed up by the Paris principles.

Like other Members of the Committee, I find it baffling that the Government have opted to ignore children's rights in the context of Clause 2. The Minister may be tempted to point us in the direction of the ombudsman. He is concerned with rights, but his job is sorting out specific cases of alleged injustice. I do not believe that he has a general duty towards protecting children's rights; neither is he the guardian of the UN convention. He cannot do what Amendment No. 17 proposes, which is to,

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

I said at Second Reading that it is as though the Government were adopting a "tick-in-a-box" approach to the issue. Once there is someone in place called a Children's Commissioner for the UK or England, no matter how anodyne his powers and duties may be, Ministers will be able to say that they have done what was asked of them. But they are not doing what was asked of them. Bearing in mind that the Government make much of having a listening commissioner, I hope that the Minister will be in listening mode as regards the amendments, which are, in my view, of fundamental importance.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

This has been an important debate and I am grateful to all Members of the Committee who have participated. I recognise the strength of feeling involved in our discussions. I understand entirely the desire of noble Lords to see a strong commissioner working for children, with children, acting in their best interests and rooted firmly in their views. The Government support that ambition. The debate, in a sense, is about how we can arrive at that outcome.

At this point, I wish to express my thanks to the All-Party Group for Children and to my noble friend Lady Massey for arranging what felt like daily meetings—I believe they were at one point—and for giving me the opportunity to meet other commissioners and their representatives, to hear their views and to discuss with them, formally and informally, some of the issues. We should be proud of our other commissioners. I hope that when there is a commissioner in England he or she will join that august group of people.

I should say to my noble friend Lady Whitaker that we will of course take account of what she said about the Committee for Human Rights. I shall of course look at the evidence that has been submitted. I have not yet done so, mainly because of the opportunity I had to talk with the other commissioners.

We start from the principle that we want to focus the commissioner's work on the outcomes that have been identified in our consultations; the issues that children and young people have said for themselves are important to them. That is the principle behind our beginning to think through the role of our Children's Commissioner. In a sense, we want the Children's Commissioner to face children; to be responsible and responsive to them. As I have indicated, I believe that the commissioner must draw his or her power from the fact that he or she speaks for children, for their aspirations and for their best interests, but on the basis of that knowledge.

The noble Baroness, Lady Walmsley, asked about the consultation and how we discussed this matter with children. We ranged across a whole set of issues. I am not saying that we asked specific questions on the role of the commissioner, but we discussed the commissioner with children. It may surprise the Committee to learn that the children had a particular interest in being involved in the process of selection of the commissioner. The noble Baroness made an important point about continuing the dialogue on the role of the commissioner. I shall reflect on that and discuss it with my colleagues.

It is because we started from that principle that we have taken a slightly different direction. We understand and recognise the importance that noble Lords give to this issue and I wish to explore a little further the background. When we carried out our consultations for the Children and Young People's Unit we were keen to set the framework around which we would deliberate and discuss the way in which Every Child Matters would take forward the issues that were presented to it. The Committee will know that the genesis of that came from both the work of the Children and Young People's Unit and the Victoria Climbie inquiry led by the noble Lord, Lord Laming, who is not in his place today.

We want to make sure that this principle is at the heart of the work of the commissioner, as it should be at the heart of this legislation and at the heart of the work that we do. The outcomes are, in a sense, enshrined in this legislation and represent, as best we can in parliamentary language, what it is we are trying to achieve for children. They are of children, they were designed by children and they are critically important. The Committee will not be surprised that I find it unacceptable to delete those outcomes and that I therefore cannot accept Amendment No. 22.

I am very concerned that we do not dilute the focus on the outcomes that children themselves have addressed. From the way in which it is framed, we believe that Amendment No. 9 would do that.

I do not want to play down the importance of the UN convention. We have signed up to it—albeit with the reservations that noble Lords know about—and we believe that no commissioner could take sensible decisions on what constitutes the interests of children without being aware of its principles and applying them to his work. That is why the Bill ensures that the Children's Commissioner can have regard to the convention when doing so.

Amendments Nos. 13, 14, 17 and 20 all seek to add a specific reference to "rights". Amendment No. 20 also seeks to add "welfare" to other parts of the commissioner's remit. I have great sympathy with what noble Lords are seeking to achieve but I do not believe the amendments are necessary because, under subsection (7), we expect the commissioner to have regard to the convention in considering what constitutes children's interests. We believe that "rights" are already encompassed within "interests". Noble Lords may disagree but, as far as we are concerned, "rights" are encompassed within "interests". The Committee will also be aware that "welfare" is covered by the five outcomes. So, in that context, we do not believe that we need to refer to it specifically.

As regards Amendment No. 17, as I have confirmed, the commissioner will have the ability to review any issue that relates to the views and interests of children. Nothing in Clause 2 will prevent the commissioner from issuing ad hoc reports and taking other action. We are trying not to circumscribe the functions under the clause by being too prescriptive in the way in which we design and list the responsibilities of the commissioner. I have already made it clear that he or she may take into account the UNCRC. So our thinking is that children's rights are part of the views and interests that the Children's Commissioner may want to pursue. I am, however, sympathetic to the concerns that underlie the amendment.

I have made the point that we start from a different principle. I recognise, as the noble Lord, Lord Hylton, said, that there are differences in the way in which we have approached this matter from the other commissioners; it is what makes our debates with them of great interest. We expect the commissioners to work closely together. We believe that by focusing on the outcomes for children we have the correct balance for children's interest. In terms of Amendment No. 17, I said that I have some sympathy for the direction in which noble Lords wish to go, but other amendments, in my view, change the focus of the work of the commissioner in a way that I do not wish to see. On that basis, I hope that the amendments will be withdrawn, although I appreciate that noble Lords may wish to reflect on them further at later stages of our deliberations.

I said at Second Reading that I would reflect on the issues in regard to the UN Convention on the Rights of the Child. In particular, I wish to focus on Amendment No. 39. I am a listening Minister. I wish to be clear that I have reflected on the way in which noble Lords have—today and at other times in our debate—powerfully discussed the issue of the UN Convention on the Rights of the Child and I shall therefore accept Amendment No. 39.

Photo of Lord Prys-Davies Lord Prys-Davies Labour 7:15 pm, 4th May 2004

I quite understand that my noble friend cannot accept an amendment that would delete the words "promoting awareness of the views and interests of children", but would she accept an amendment which added the words "safeguarding the rights" but did not delete that wording?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

In accepting Amendment No. 39 I may have slightly changed the focus of our deliberations. I am trying to signal to the Committee our concern to ensure that rights are a fundamental part of the legislation. I believe I have achieved that. Between now and the next stage of the Bill there will be opportunities to discuss this matter. We believe that the issue of "rights" is covered within the wording of the Bill. I hope that by accepting Amendment No. 39 I have allayed some of the concerns of noble Lords.

As always, my door is open. I shall be at the beck and call of noble Lords to give further clarification and to discuss ways in which we can work together to achieve my desire. I hope I have made that clear by accepting the amendment.

Photo of Lord Puttnam Lord Puttnam Labour

I thank the Minister for accepting Amendment No. 39. She is not only a listening Minister; she must be an extremely persuasive one. It is very difficult for my colleagues and I on these Benches to table what must appear at times to be hostile amendments. It is enormously encouraging that we are listened to and that we are not treated as either renegades or disloyal for raising what seem to many of us to be extremely obvious points.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

Before the noble Baroness sits down, will she address this point? As I understood her argument, the Children's Commissioner would, in any event, have in mind and be aware of the convention and the rights of children. If that is the case, it totally destroys any argument against including on the face of the Bill, in a most prominent position—Clause 2—this reference to the rights of children. When she rethinks this, will she be good enough to think about the logic of what she has said? Inherent in that logic is that rights are part of the remit of the commissioner and therefore—if she will follow my thinking—ought to be in the forefront, in Clause 2.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

As the noble Lord will know, I am always willing to rethink. I hope that I have signalled very clearly our position as regards the UN Convention on the Rights of the Child. Any noble Lord who wants to know what persuaded me has only to read the words of my noble friend Lady David on Second Reading in describing very clearly that a government who signed up to and ratified such a document with all-party support must have regard to it. None the less, it is critical to ensure that when we design legislation we are clear about what we are seeking to achieve in terms of outcomes for children and the role of the commissioner. It is partly a question of balance and partly one of focus. In certain of these amendments, it is our view that the focus of the work of the commissioner could change. I began by saying that we had begun our exploration of the role of a commissioner for England from the point where children had indicated they wanted us to be, and that is a focus we would not wish to lose. That would be my starting point for any further discussions and, as I have already indicated, I am always open to discussion.

Photo of Lord Northbourne Lord Northbourne Crossbench

Before the noble Baroness sits down, she mentioned the possibility that the work of the commissioner might change. Is it also possible that the United Nations convention might be changed? If so, how would we be affected if we had signed up to it in the way in which the noble Lord, Lord Neill, suggested?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

It is my understanding that the convention was signed in 1991, and I know of no particular changes. Many in your Lordships' House are more expert than I on the UN Convention on the Rights of the Child. If I am incorrect I shall of course make sure that noble Lords are aware of any new information. As far as I understand it, the convention is signed and ratified, and remains as is. I know of no other moves or ability for the convention to be altered; if there is, I will of course notify your Lordships.

Photo of Lord Lucas Lord Lucas Conservative

Could the noble Baroness enlarge a little on her reaction to Amendment No. 17? It is pretty standard to have a clause which gives a commissioner the right to publish reports. If, under Clause 2(2)(b), he requires permission to talk to the Secretary of State, surely we need something which gives him permission to talk to the rest of us.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

There is nothing to stop the commissioner making reports in an ad hoc way in any event. Indeed, the commissioner will have the ability to look systemically at different aspects of what happens with children; we would expect him or her to report on that and to make those reports available.

I was trying to make the point that I could see within that amendment perhaps more clearly where noble Lords were seeking to develop the argument. However, I thought that we needed to be careful about how we interpreted the way in which the commissioner does his or her work in order to ensure that we do not prescribe it. We are all, in a sense, searching for the same goal—a commissioner who is flexible and able to respond but has a clear remit. What divides us is how we achieve that goal. It is our view that we need to be clear about that flexibility and not prescribe in areas where we think that might constrain the commissioner or deflect him or her from functions which we think are critical. Again, I am very happy to discuss this with noble Lords.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

Before the noble Baroness sits down, I should like to add one more point about why I am so keen that "rights" is firmly on the face of the Bill. It is connected with the point that the noble Baroness has made on several occasions about where the Government are coming from in listening to children and young people.

As a generic group, children and young people are about as generic as any group in the population. I talk to a lot of young people; they are as prejudiced or unprejudiced as any other group of people. Many young people have quite a punitive attitude regarding what should happen to others who have confronted the law—until they confront it themselves, of course. They have quite a punitive attitude towards people who come in from the outside. It is terribly important that the commissioner is able to stand up for the rights of minority groups of children. That is why I think the word "rights" is so central to what we are trying to do. Listening to children is as complex as the noble Baroness listening to noble Lords in the House.

Photo of Lord Elton Lord Elton Conservative

May I follow on from that description of children with a comment that is not, I hope, facile, but quite relevant? I remember that as a child, I was acutely aware of my wrongs; I had no idea of what my rights were at all, and I depended on my parents for seeing that I got them. As my noble friend Lord Howe said, we are concerned with the children who have no effective parents or no parents at all to see that they get their rights. That is why the word should be in the Bill and that is why the children have not asked for them.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

The noble Lord and the noble Baroness both referred to particular groups of children. As the Committee goes through its deliberations, there will be plenty of opportunity to talk about particular groups of children whom noble Lords are, rightly, particularly concerned about, as expressed in various amendments and discussions.

My ambition was that by accepting Amendment No. 39 I stated a principle which noble Lords would greet with, I hope, delight. In a sense it sets the framework for the deliberations of the commissioner.

I pay tribute to the noble Baroness, Lady Howarth, who knows a great deal about talking to children. I agree entirely with what she says about children being representative of the rest of us. However, it is important that the UN convention plays its role within that, and I believe that by changing a very simple word, noble Lords have achieved what they wanted.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I am most grateful to the noble Baroness for responding to this group of amendments. In particular, I thank her very much for accepting Amendment No. 39. We are all absolutely delighted that she has been able to accept it on behalf of the Government. It is an important principle; it is a step in the right direction. However, I think my nickname must be Oliver Twist, because we want more.

I am most grateful to all members of the Committee who have supported this group of amendments with such conviction and passion. I was particularly grateful to the noble Lord, Lord Neill of Bladen, for pointing out the logic of the Government's refusal to include the "R" word in the other places in the Bill, as I have proposed in this group of amendments. While we are very grateful to the noble Baroness for accepting Amendment No. 39, I hope that when we return to these issues on Report, as we inevitably will, she will continue to use her powers of persuasion, together with her listening ear, and will be able to accept further amendments on them.

I was most grateful to the noble Baroness for mentioning that she felt that the Government did not want to circumscribe the powers of the commissioner. That was exactly why I tabled Amendment No. 22. Although I accept that the outcomes are a result of what children said they wanted, because they are set out in a list, they circumscribe the powers of the commissioner and that is why we tabled Amendment No. 22.

The problem is that if you ask a question, you get certain answers, and the answers you get depend on the questions you ask. The point I was making earlier about consulting children about the powers of the commissioner is that not enough questions have yet been asked of children. Whether there is an opportunity to ask more of those questions between Committee and Report, I do not know, but I think it would be extremely helpful if questions about the specific changes that we want to make to the Bill about children's rights could be run past a group of children and the Minister could hear their responses.

With gratitude, yet wanting more, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Northbourne Lord Northbourne Crossbench 7:30 pm, 4th May 2004

moved Amendment No. 10:

Page 1, line 8, after "and" insert "best"

Photo of Lord Northbourne Lord Northbourne Crossbench

In moving this amendment, I shall also speak to Amendments Nos. 40 and 43. Amendments Nos. 10 and 40 relate to the meaning of the words "children's interests". As the Bill is drafted, Part 1 is unclear on the meaning of those two words. In the English language, the word "interests" can be used in two ways—to question what the child is interested in and to describe what is in the child's best interests. I am not being pedantic. Clause 2(2) includes the phrase:

"the views and interests of children".

Views and interests match very well—their views and what they are interested in. However, when we turn the page, we find in subsection (7) a reference to interests in the context of the UN convention, which does not relate to what children are interested in but to what is in the best interests of children.

This is an important matter because it defines what the Children's Commissioner is for. Is he just a pair of ears to hear what children are saying, as the noble Baroness, Lady Walmsley, suggested, and to represent those views to the Government or to the world, or does he judge not only what different children are thinking—and there will be a great variety of children's views—but what is in their best interests? That is where my Amendment No. 43 comes in. Like the other two amendments, it is a probing amendment. If it is the job of the commissioner to ascertain the best interests of children as well as what they are interested in, he must also listen to other people who know about children and who are in touch with what is in their best interests in the modern world. I need not insult your Lordships by giving examples of how a child might find some things more interesting than others or that some of the things that he might find interesting might not be in his or her best interests. I beg to move.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

From these Benches, I support the noble Lord, Lord Northbourne, on these three amendments, although my name is attached to Amendment No. 43 in particular. As he says, "best" is a very small word, but it makes a difference. It focuses on the specific interests of the children in the Bill, and there are great advantages in using a familiar term. "In the best interests of the child" is used regularly in Bills and it is a good idea to carry it forward into this Bill as well.

On Amendment No. 43, I also support the noble Lord in arguing that the Minister has herself said that it is vital that we listen to the voices of children. However, sometimes others are also there to help with those voices—the parents, teachers and doctors who work with them. Sometimes, children cannot express for themselves what they really want. It is therefore helpful if we can include in the Bill the need for the commissioner to take account of the views of other people who work closely with children.

Photo of Lord Elton Lord Elton Conservative

The noble Lord has pointed out a genuine ambiguity and a simple remedy. If we are not to go to the interpretation clause that is fragmented in this Bill and difficult to find in several parts, I suggest that his remedy is much the best one.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I am grateful to the noble Lord, Lord Northbourne. Indeed, I am grateful that we had the opportunity earlier today to talk about this matter. "Interests" reflects two different things at the same time. Of course, it is our intention that the provision is about the best interests of children. On making judgments about this, the commissioner will be particularly informed by the UN convention and the rights that children can expect under that, which is very important. However, we do not want to lose sight of the interests of children. I know from consultation with the National Society for the Prevention of Cruelty to Children, that children are very keen for the commissioner to look at issues such as access to computers and pocket money. It is therefore important that we reflect both meanings. Children have interests that they wish to see reflected in the work of the commissioner.

Noble Lords can think of many examples, I am sure, of the way in which children reflect their interests—on school councils for example and in other ways. The interests that the teachers or adults believe that the children will take forward are not always the ones that children think are particularly important to them. Therefore, the provision, in a sense, includes both meanings. I have listened to the noble Lord and the noble Lord, Lord Elton, and I suggest to the Committee that I take this matter away to see if more can be done. However, I do not want to lose what we believe is in the language and the policy intent. It should reflect the best interests of children and children's interests.

The noble Lord confounded me by adding his Amendment No. 43 which, according to my grouping, I am not yet taking.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative

In her further deliberations, will the Minister consider that there is no such thing as absolute best interests? She and others will accept that there will be a variety of views about what constitutes children's best interests under the groupings in the Amendment No. 43.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

Indeed, that is why the wording of the legislation is as it is—greater minds than mine have reflected on how to ensure that we capture what we are trying to do. As I have already indicated, the UN convention will form part of the backdrop that will enable the best interests of children to be realised. However, I have promised to reflect on the matter further.

Amendment No. 43 is specifically, as the noble Lord will know, to consider the accounts and views of others, such as parents, teachers, GPs, youth workers and so forth, who can represent younger children and those less able to represent themselves. There is nothing to stop the commissioner from doing that. Indeed, it would be generally understood that the commissioner would wish to consider the views of adults and organisations working with children. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Northbourne Lord Northbourne Crossbench

I am grateful to the Minister and full of hope that we may be able to accommodate the problem to which I have drawn attention. Clearly, it is extremely unsatisfactory to use a word that has two meanings, to employ the word once and expect people to understand that both meanings are implicit in the text. I cannot help feeling that the skills of the department with the English language will enable a slightly clearer wording to be worked out. On the basis that I will also go away and think about the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 11:

Page 1, line 9, leave out "the United Kingdom" and insert "England"

Photo of Earl Howe Earl Howe Conservative

In moving this amendment, I shall also speak to a number of amendments that are grouped with it to which my name is variously attached.

At Second Reading, the noble Lord, Lord Thomas of Gresford, encapsulated what for many of us is one of the Bill's ultimate anomalies. In creating a Children's Commissioner for the United Kingdom rather than just England, the Government are entrenching the administrative divisions arising from devolution in an unnecessary and retrograde way. The devolution settlements for Scotland, Wales and Northern Ireland, as we all know, defined those matters that were to be devolved and those that were reserved to Westminster.

As a consequence, the direct powers of the Welsh commissioner, for example, are, strictly speaking, confined to devolved matters such as health and social services. He lacks direct powers to act on matters falling under the remit of, say, the Home Office. But so that he can examine and address children's rights and interests in the round, he has the power to raise with the Welsh Assembly any matters of concern relating to non-devolved issues, leaving it to the Assembly to pass those concerns to the appropriate quarter as it wishes. These arrangements have worked quite satisfactorily, as the noble Lord, Lord Thomas, told us. Under the Bill, however, it is envisaged that, all of a sudden, a Children's Commissioner for the United Kingdom will muscle in and assume responsibility for those issues relating to children in Wales that are non-devolved. Welsh children will, therefore, find themselves with not one champion but two, working so to speak side by side.

In a Bill that purports to be child centred above all else, it is odd, to put it at its kindest, that the lines of accountability that the Government are proposing for these two commissioners appear to put legalistic considerations ahead of common sense. Children do not understand devolved and non-devolved powers; they want a simple system. They need to be able to access a single commissioner whom they regard as the champion of their interests across the board. They do not want to be confused by being told that if their complaint or concern relates to a Home Office matter they should talk to one person, and if it relates to a health matter they should talk to someone else. Apart from anything else, many complaints and concerns do not admit of such clear-cut divisions.

The position for children in the devolved administrations is even more unsatisfactory than that because of the completely differing roles and powers envisaged for the UK commissioner as compared with his three counterparts. If the Government get their way, the UK commissioner will not be taking up the cudgels for Welsh children in at all the same sense as the Welsh commissioner currently does. That is because he will be concerned only with promoting awareness of the views and interests of children. He will not be concerned with safeguarding and promoting their rights and interests, although one must acknowledge that the Government's acceptance of Amendment No. 39 does tilt the situation in the right direction. Nor will the UK commissioner be able to undertake an inquiry into an individual child without the say-so of the Secretary of State. This difference in powers and functions is unsatisfactory enough in relation to children in England; it is doubly unsatisfactory in relation to children in Wales, Scotland and Northern Ireland, because in practice it represents a dilution of the protection they currently enjoy from their own respective commissions.

There is a simple enough answer to all of this, which is the one that I have proposed in my amendments. It is to say, "Let the three existing commissioners continue to fulfil their functions in their respective territories. Do not confuse lines of accountability by making the English commissioner responsible for some matters in those territories but not others; but instead make him responsible solely for English children, and alongside that create a duty for all four commissioners to co-operate with one another on matters that affect more than one country, such as child poverty". That way, children will have consistency and simplicity instead of the more confusing and complex arrangements envisaged here.

While we are about it, what exactly is meant by the phrases "children in Scotland" and "children in Northern Ireland" which occur in subsection (1) of Clause 5? Does "children in Scotland" mean children living in Scotland or children who happen to be in Scotland but who may in fact live in England or somewhere else? Supposing the Scottish commissioner has a concern about children who live in England but who attend a Scottish school, is that a matter for him to pursue or a matter for the English commissioner? Amendment No. 73 is intended as a means of probing the Minister for clarification on this issue. It is not clear to me where it is intended that the jurisdiction of the English commissioner should begin and end.

I hope that the Minister will be able to see that there are serious issues here emanating directly from the devolution settlements which must be clarified and resolved. I hope that she can be helpful on these matters. I beg to move.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 7:45 pm, 4th May 2004

In speaking to the amendments in this group I should like to add to some of the points so clearly made by the noble Earl, Lord Howe. The England/UK commissioner will be responsible for 11.5 million children in England and another 700,000 children in Wales. These amendments reflect the complex nature of the devolution settlements. I hope that the Minister will see that they aim to work in the spirit of current arrangements to improve things for children in Wales.

Today there was a debate in a plenary sitting of the Assembly and a Motion was passed unanimously—by 50 votes to nil—stating that the Assembly welcomes the additional powers that the Children Bill gives to the Assembly; rejects the proposal that the English Children's Commissioner should have statutory functions over non-devolved matters in Wales; and calls for the powers of the Children's Commissioner in Wales to be extended over non-devolved matters. That was in this afternoon's debate in the Assembly.

Amendments Nos. 11 and 63 define England's Children's Commissioner as responsible for England, and allows the other amendments to ensure that children ordinarily resident in Wales go to the Children's Commissioner for Wales. I ask the Minister how Welsh children and the National Assembly for Wales were consulted on the commissioner's change in role as outlined in the Bill. How were they consulted over the significant differences in roles between the Children's Commissioner for Wales and the England/UK counterpart? Perhaps I may remind the Committee that children in Wales and the National Assembly for Wales were involved in the appointment of the Children's Commissioner for Wales, who is independent of Welsh Assembly government.

Amendment No. 65 ensures consistency across the UK. Amendments Nos. 71 and 71A have the effect of extending the commissioner's powers across Wales to allow the commissioner to make direct representations either to the Assembly or to the appropriate Minister of the Crown or government department where the matter is non-devolved. Amendment No. 72 provides consistency and fairness across the UK, ensuring communication and consultation on issues for the benefit of all children in the UK irrespective of where they ordinarily live. I appreciate the need for consistency and fairness across the UK. That is vital as the children concerned are moved around the UK and are often known to services by the very nature of their background. They often lack geographical or other security.

Children cannot be expected to understand the complexity of arrangements. For them, and indeed for staff on the ground, it is much safer to know that all matters pertaining to safeguarding of children ordinarily resident in Wales are the province of the Children's Commissioner for Wales. Experience has shown that a child's issue or complaint frequently involves more than one agency and that it is not possible to separate devolved and non-devolved issues into neat compartments.

When the child moves to reside in England they should come within the remit of the English counterpart. A small number of Welsh children are in secure units in England. It should be for the Children's Commissioner for Wales and the counterpart in England to sort out their bureaucratic arrangements to ensure that no child is lost to the safeguarding functions of an effective commissioner.

Until now there has been no UK Children's Commissioner. So, the Children's Commissioner for Wales has developed informal working relationships with the Criminal Records Bureau; with the senior police, who are represented on area child protection committees and have a major role in safeguarding children in Wales; and with the governors of prisons in Wales over children in custody, because, sadly, there are still deaths in custody.

Great thanks are due to the late Lord Williams of Mostyn whose amendment to the Children's Commissioner for Wales Bill, enacted in 2001, ensures that the Children's Commissioner for Wales can make representations to the Assembly on any matter, whether devolved or non-devolved, that affects the welfare and rights of children in Wales. If he deems it appropriate, he can apparently also make informal representations to UK government on these matters. Although the Wales Office has given reassurances that this can continue, it seems to be a courtesy that allows for his freedom of expression, rather than a formal route regarding issues that could be critically important.

The England/UK commissioner will be able to consider, research and report on non-devolved matters as they relate to views and interests of children in Wales. This means that she or he will need to know the views of Welsh children on any such matter, which will inevitably duplicate with the Children's Commissioner for Wales who will be drawing on the same group of the population for views.

From the perspective of a troubled 10 year-old, it would seem far simpler for the Children's Commissioner for Wales to ascertain the views of children in Wales on all matters. This is not about the powers of the individual post of Children's Commissioner for Wales; it is about the practical operational aspects of communication on non-devolved matters directly to Westminster. It seems inconceivable that an issue would come to the Home Office without the Children's Commissioner for Wales already knowing about it, especially if the child's language is Welsh. The England/UK Children's Commissioner would need to understand the context within which services are delivered in Wales and the way policies are determined and how they differ from those in England, although I do not see why the Children's Commissioner for Wales cannot report directly to the relevant Secretary of State on non-devolved matters arising in Wales.

This Bill is built on the fundamental principle of safeguarding children. Let me use a specific example to illustrate this. Take Hillside, the secure unit in Neath, where there could be twin boys from Ystradgynlais who are primarily Welsh-speaking. They come from a family with a history of drug abuse on the part of their mother and her partner. One has been placed there by social services on a care order precipitated by behavioural issues that constitute a potential danger to himself. The other has been sentenced by the magistrates' court for persistent offending and is under the auspices of the youth justice system. If a concern arises regarding their management by the court or regarding a failure of the complaint system within Hillside, child A contacts the Children's Commissioner for Wales Office and the latter may decide to visit or to request information about a perceived failure in the system. If child B, his twin brother, wished to make such contact, he would be told that he should contact the English/UK commissioner, or that the Children's Commissioner for Wales could make representations on his behalf to the Assembly which may or may not choose to refer that on to the Home Office. It does seem inordinately cumbersome and confusing, particularly when the two children are from the very same household.

If guidance is not co-ordinated, confusion arises and safeguarding fails. Most inquiries into child deaths over the years have repeatedly pointed to failed communication between agencies. In the aftermath of the inquiry of the noble Lord, Lord Laming, child protection committees in Wales, which comprise different agencies concerning devolved and non-devolved matters, received guidance. The police and probation service immediately received Home Office guidance in advance of the Assembly issuing guidance to the devolved agencies in relation to the delivery of Welsh services for children. One of the Children's Commissioner for Wales' roles is to ensure coherence in policy implementation. Clearly, any anomalies in timing or content between Home Office guidance and Assembly guidance leave children vulnerable.

The devolution settlement was made in 2001 with good intentions but it could not foresee every possible scenario that would arise. Children's services form a good example of where events have now moved beyond the situations then envisaged. The reporting arrangements for the Children's Commissioner for Wales do not undermine the devolution settlement if he can report directly on non-devolved matters to Whitehall. But if we are hamstrung by the terms of his appointment, meaning that he has no role beyond the Assembly remit, the devolution settlement acts as a strait-jacket for coherence in Wales, which is against the Government's intent to make improvements for all.

The role of the commissioner in Wales was debated in the Assembly in plenary. It was to avoid that confusion that the National Assembly for Wales voted on 5 November 2003 by 55 to nil to call for the strengthening of the powers of the Children's Commissioner for Wales to enhance his role—a debate that was reinforced today. It also welcomed the intention of Westminster to introduce a Children Bill. So why, I ask the Minister, in the light of this unanimous view, have the Government decided to fragment rather than consolidate the role of the Children's Commissioner for Wales on behalf of Welsh children?

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative

I am not sure that I have anything to add, except emphasis, to what has already been said. I shall endeavour to sharpen the issue, if, indeed, it is not sharp enough already.

There is no doubt that the UK scope of the Children's Commissioner begs the question of his relationship with the children's commissioners not only in Wales, which I am delighted to say we have heard a great deal about, but also with the children's commissioners in Northern Ireland and in Scotland.

It is true that there is some definition of that relationship in Clause 5, but, as we have heard, some issues are still very unclear and there is substantial concern. For example, it is a major concern for Children in Wales, which spans a number of organisations concerned with children's rights and welfare.

We know that the commissioners in the devolved administrations are confined in the scope of their operations to devolved matters—that is their preserve. It is not altogether satisfactory because, as the noble Baroness, Lady Finlay, said, children's problems often involve non-devolved areas, notably the police and the Home Office as well as devolved areas such as social services, education and health.

When we established the office of Children's Commissioner for Wales, we were indeed assured that he would be able to make representations to the National Assembly on any matter in any area, devolved or not devolved, and that the Assembly could pursue it with the relevant Secretary of State at the UK level. As far as I am aware, that arrangement still holds. I hope that the noble Baroness, Lady Finlay, is right that assurances have been given that it will continue.

Now we are to have a Children's Commissioner with a UK remit. He is debarred under Clause 5 from concerning himself with devolved matters in Scotland, Wales and Northern Ireland, but not reserved matters, and so there is some overlap of functions and certainly a great deal of potential for confusion. The key question for me is the following. In future will the Welsh commissioner, for example, refer a matter touching a non-devolved area in Wales to the UK commissioner rather than to the Assembly? That must obviously be one line of approach. I am sure that in practice all the commissioners will work fairly harmoniously together and it may be helpful to the existing commissioners in different parts of the UK to have a fellow commissioner who operates at UK level but does not interfere in their local concerns. There are two sides to that particular coin.

My noble friend's amendment proposes that the relevant commissioner should be confined to England. That might, indeed, clarify the situation but I am not absolutely certain that it would be wholly advantageous. I see potential benefit in the UK commissioner's umbrella role. After all, if the Welsh commissioner, the Scottish commissioner or the Northern Ireland commissioner see a problem in a non-devolved area, and if they talk about that problem to the UK commissioner, they will at least be talking the same language and I am sure that there will be a greater degree of understanding.

With regard to the suggestion that the Welsh commissioner should have the authority to examine non-devolved matters, on the same basis as he examines the devolved matters in the devolved areas, the difficulty is obvious. He is an appointee of the Assembly. He is not directly responsible to or appointed by the Secretary of State responsible for those non-devolved areas. However, I am sure that those who have spoken already and others who may speak will support me in saying that the Government should explain the new commissioner's UK role more fully, because there is clearly widespread dissatisfaction. The last thing we want is for children to be discriminated against one way or the other, or to have to suffer the consequence of this administrative mix-up.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Minister, Home Affairs, Shadow Minister, Welsh Affairs 8:00 pm, 4th May 2004

The Bill has come about as a result of various cases where children have fallen between the care that should have been given to them by various authorities. One essential purpose of the Bill is to make sure that that does not happen again, and to clarify lines of responsibility.

The Welsh commissioner's Bill had its genesis in the Waterhouse report, which was concerned with what had gone on in various establishments in north Wales, some of them very close to where I live. Bryn Estyn comes to mind, but there were other institutions as well where abuse had gone on. For 18 months, Sir Ronald Waterhouse led an inquiry into those problems. One of his recommendations was that there should be a Children's Commissioner for Wales, to bring together the various agencies concerned with the welfare of children. That was done. It was the first Bill to come before your Lordships' House that was entirely devoted, following devolution, to Welsh matters.

We had not been debating that Bill very long when it became quite clear that there was an element on the Government's side that was pushing to divide the responsibilities of the Children's Commissioner for Wales, so that the Home Office would not be affected by anything that he did. The argument was that the devolution settlement had taken place, and that we should do nothing to undermine it. I do not think that right. The very expression "devolution settlement" suggests that that is something fixed in stone for ever and a day. The Richard report, which we have just received in Wales, has demonstrated that the devolution settlement is unsatisfactory, and that very significant changes have to be made to it. Therefore, no one should be tied to the devolution settlement.

There should be no no-go areas for the Children's Commissioner for Wales. We cannot divide the welfare of a child into devolved and non-devolved matters. The implications of the welfare of that child cross those barriers, which are only temporary and artificial and do not go as far as many of us in Wales want.

As the noble Baroness, Lady Finlay, pointed out, Lord Williams of Mostyn—I always have to call him Gareth Williams—decided that it would be good to give the Welsh commissioner power to look into anything, devolved or non-devolved. The compromise was that, instead of going directly to Ministers in Westminster, anything that had to do with non-devolved matters should be reported by the Welsh commissioner directly to the National Assembly. It would be for it to decide whether to take it up in Whitehall.

Last week, we had some very helpful discussions with the Government, and I pay tribute to them for the fact that they are prepared to be involved in discussions with all of us who are concerned with the Bill and its Welsh side. We were told in those discussions that, in fact, the Welsh commissioner has been able to approach Whitehall ministries directly. It may horrify some people—that, on non-devolved matters, the Welsh commissioner should arrogate to himself powers that the original statute did not give him—but it is the practice.

If that is the practice, and if the Welsh commissioner requires statutory authority to approach Whitehall ministries directly—the Home Office in particular, and the social security ministries, which are concerned very directly with the big problem of child poverty in Wales—that is what the amendments seek to provide. The lines of authority and responsibility should be clearly drawn, and we cannot draw them on the basis of what was the devolution settlement some years ago but may not be the devolution settlement in a few years' time, if the Richard report is accepted.

Consequently, let us forget about what is devolved and not devolved; let us consider what is in the interests of the children. By passing the amendments, let us recognise that children's problems cross all the boundaries. I hope that the Government will accept the amendments. If they do not and the amendments are pressed at a later stage, I assure them that we will support the amendments entirely.

Photo of Lord Elton Lord Elton Conservative

I have two very short points in support of what has been said. The first is to ask the Minister, when she thinks about the matter, not to look at it from above. She should not look at it from a government point of view of administrative convenience—of the possibility of an overarching power, to which my noble friend Lord Roberts was attracted. I ask her to look at the matter from below, where the children are. They need one point to go to; they do not want a choice of points.

The second matter which I would draw to the Minister's attention is that in setting up the Welsh commissioner, the Government provided for the Welsh Assembly to speak on his behalf on non-devolved matters. Therefore the Government are ready and willing to listen to the Welsh Assembly and to give great weight to what it says. Will the noble Baroness please pay great attention to what it said this afternoon, which is exactly in accordance with the amendment that my noble friend is moving from our Front Bench?

Photo of Lord Prys-Davies Lord Prys-Davies Labour

May I, from these Benches, support the amendment? In particular, I wish to reiterate some of the points that have been made by the noble Baroness, Lady Finlay, and the noble Lords, Lord Roberts of Conwy and Lord Thomas of Gresford.

I believe that the merits of the amendment were first discussed when the Children's Commissioner for Wales Bill was before Parliament, so the amendment represents a further stage in a long-running campaign to extend the powers of the Welsh commissioner over devolved matters. I hope that that will be acceptable to the Government. Today we have heard from the noble Baroness, Lady Finlay, that the Welsh Assembly itself has unanimously called for the Welsh commissioner's powers to be extended over devolved matters.

I find it difficult to understand why the Government—who I have supported—have persistently refused to extend the remit and powers of the Welsh commissioner to over non-devolved areas of policy. At Second Reading I listened carefully to my noble friend the Minister, who asserted as if it were a fact that this is due to what she described as,

"the logic of the devolution settlement".—[Official Report, 30/3/04; col. 1210.]

Many of us in Wales do not accept that there is such a logic or that the Government of Wales Act 1998 represents a final settlement that cannot be questioned. Indeed, the Government of Wales Act in no way has affected the power of Parliament to legislate as it sees fit. The principle of the sovereignty of Parliament makes it impossible for Parliament, through one Act, to limit the competence to pass another Act which may be inconsistent with the first Act. The functions of the Children's Commissioner for Wales should be determined by the children's legislation of today.

I read the evidence of the Welsh commissioner, Mr Peter Clarke, to the Welsh Affairs Select Committee, given on 22 April. I shall not quote from the transcript, because it has not been edited, but I have no doubt that he is seriously concerned over whether this model will work. As I understand it, difficulties can arise in two main areas. First, the existence of two different commissioners, with different remits and powers, will cause genuine difficulties in the minds of children and young people. In addition, there may well be a preliminary issue to be settled—to which the noble Lord, Lord Thomas of Gresford, referred—regarding whether an issue arises within an area that has been devolved or has been reserved. This can sometimes be a manifestly difficult question which may take time to resolve. Evidence of that is to be found in the report of the Richard commission.

Unless the amendment is accepted by the Government, the Bill will not work as well as they believe it will. Therefore, I hope that they will give the amendment careful consideration.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I am grateful to all noble Lords who have spoken in this debate. As was entirely predictable, it was a debate that carried conviction—and had about it a touch of deja vu, when we recall the debates that we had in this House on the Welsh commissioner; but it is none the worse for that. It also has the irresistible appeal of allowing a short debate on the devolution settlement, however it is described. I will try to be clear, because the last thing that we would wish for at this stage would be to add to what I perceive is confusion about the role of the respective commissioners, particularly from the point of view of children. I take entirely the point made by the noble Lord, Lord Elton, that we must see this matter from the point of view of children and not as if we were administering something to them.

Essentially what we are doing is to create an English commissioner with the scope to address non-devolved issues across the UK. He will work on behalf of children across the UK in those respects. I am happy to reiterate that he is the equal, and not the superior, of the other commissioners—he is their partner. However, because he has the scope to work across the UK, he will be able to offer the children of the UK additional access to issues that are now reserved. These are extra powers, extra opportunities, and they are new powers that will ensure that he is the ally and the friend of children, as well as of the other commissioners. He is not a competitor; he is not muscling in. I want to reassure noble Lords that there is nothing in this Bill that will reduce, inhibit or compromise the powers of the existing commissioners.

I want to quote something that has been quoted already—from the evidence that was given to the Select Committee for Welsh Affairs. The Welsh Secretary for Health and Social Services made this absolutely clear when she said—she was pressed very hard on this point—that the UK commissioner does not take anything away from the role of the Welsh commissioner. She or he will still be able to make representations to the Assembly about any matter affecting the rights or welfare of children in Wales, including non-devolved matters.

So in relation to the question the noble Lord, Lord Roberts, raised: yes, he will still be able to take issues to the Assembly, and from the Assembly, with the support of the ally that he has in the Health Minister in Wales, to the Secretary of State for Wales. In response to the noble Lord, Lord Thomas of Gresford, who raised the question of his present access to other secretaries of state, I suspect that this is actually an informal arrangement that has grown as the Welsh commissioner has developed his powers. It is extremely important that we are clear that, just as now, he can take up those powers through the Assembly with the Minister's support, but in future he will also be able to call on the UK commissioner, who is there to help him by offering him the extra access to Parliament and across government in terms of non-devolved issues. How much extra benefit that is going to bring, to have formal access to the relevant Secretaries of State. Therefore, as I see it, this is not fragmentation at all. This is bringing extra strength and coherence to what is available for children. I address that point to the noble Baroness, Lady Finlay.

It has been suggested that children might be confused by having two commissioners. We must resist this idea. It is a false argument. Whether children are confused about where they might go will depend a lot on how the commissioners in the devolved countries present the case themselves. They are expert already at communicating and liaising with children. They would not want to confuse the children in Wales and in Scotland by suggesting that there was a competitive, alternative route, unless they had already been able to talk to those children about what extra benefits that might bring.

I sincerely believe that we want clear lines of communication. That will depend a great deal on the commissioners in the three other countries offering a seamless service themselves, working closely with the new commissioner, as we intend—I shall come to that later—so that the service offered to children is seamless. There will be no distinctions drawn. This will be a one-stop shop, as it were. This is work in progress, and the arrangements will have to be worked out, but let us not pre-judge this by suggesting that there will be wilful confusion that will somehow disadvantage children. We do not believe that that will be the case at all.

Let me turn now to the short debate we have had on devolution and the powers of the Welsh commissioner. I take entirely the point noble Lords have made. Indeed, in turning to Amendments Nos. 71 and 71A, I congratulate the noble Baroness, Lady Finlay, on her ingenuity in opening this debate up to the Care Standards Act 2000, which is where it should be.

We want to congratulate Peter Clarke on the start he has made, and on his extremely successful efforts to communicate with children and young people and to establish the profile of the commissioner. He is indeed an effective champion for children, but I should say—and I say it in all sincerity—that this is not the place to reopen the debate on the extent of the commissioner's powers in Wales, because it does mean opening the debate about the devolution settlement. The noble Lord, Lord Thomas of Gresford, does not like the term "devolution settlement". Indeed, he is right that the Richard commission is preparing the ground for future debate and that the Welsh Assembly is debating the issue. It is another matter in the development. Let us have that debate, but this is not the context in which to reopen the debate on the powers of the Commissioner for Wales. I took a great deal of comfort from the noble Lord, Lord Roberts, who gave a powerful explanation of why we should not do so. The noble Baroness, Lady Finlay, will not therefore be surprised to learn that we cannot accept Amendments Nos. 71 and 71A.

It will also not surprise Members of the Committee to learn that we are unable to accept Amendment No. 11 and the related Amendments Nos. 63, 65 and 72 because they seek to limit the scope of the commissioner's role in England. We are intent on extending the ability of children in the other countries to access new areas. The powers we have provided, which the amendments would remove, are important and the alternatives proposed would not fill the gap.

Amendment No. 72 cannot be considered alone—it has to be seen alongside Amendment No. 11 and, to a lesser extent, Amendments Nos. 63 and 65. Amendment No. 72 seeks to create a UK function to replace that which would be removed by the amendment to Clause 2. However, it is not clear whether Members of the Committee moving it want the Children's Commissioner to have a UK-wide role through working with other commissioners or for each to be wholly responsible for his own country. Therefore the amendment is flawed in its wording and, given the scope for confusion, it would not deliver an acceptable alternative. Members of the Committee might therefore want to withdraw it.

Amendment No. 73 presents another form of confusion. We suspect the intention was that the commissioner should not become involved in the affairs of the devolved regions but in practice the amendment has the opposite effect. I will write to noble Lords on the amendment because it is a difficult and technical issue.

I turn to the practical aspects that have been addressed by several noble Lords. How will the commissioners work in relation to each other's responsibilities? We have spoken of a memorandum of understanding—and again it is work in progress. I can assure the Committee that we intend the four commissioners to take part in a shared and equal discussion to draw up appropriate protocols.

It is difficult for us to be drawn into detail because the memorandum of understanding is to be owned by them. It will work if they each sign up to it. They are independent commissioners and their programmes of work and priorities will grow from what children tell them, just as the noble Lord, Lord Elton, would want. Therefore, we do not see it as our job to tell them what to put in the memorandum of understanding, but we will be able to come back to the House as progress is made.

In answer to a specific question asked by the noble Earl, Lord Howe, the definition of "children in Scotland" and Ireland is "normally resident" in those countries. The noble Baroness, Lady Finlay, asked whether children in Wales were consulted about the new English commissioner. Our consultation was essentially through the Welsh Office, the Welsh Assembly and the Welsh Commissioner. A lot more consultation remains to be done and children in Wales were obviously involved in the consultation document, Every Child Matters. We shall certainly ensure that Welsh children are fully involved at all future stages.

I want to return to my original theme; the relationship of the UK commissioner to the other devolved commissioners. As I said, we have created an English commissioner with scope across the UK to reflect and assist with issues that are devolved to the other three countries. We believe that they are useful and necessary powers, but I understand from what noble Lords are saying that they may find the language confusing and of concern. We do not believe that it is so, but having listened to the debate we will take it away and see if we could use clearer language to ensure that there is no room for confusion.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

While the Minister is on her feet I wonder if I might probe her a little further on the memorandum of agreement to which she referred. If the English commissioner came to an agreement with the commissioner in Wales and within that memorandum of agreement they wished to have direct lines of communication from Wales to the Home Office, for example, what would be the position with the Bill as it stands?

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

A memorandum of agreement is essentially an administrative instrument and could not interfere with the distribution of powers and the way in which they were used. I shall take advice on the matter, but I think it is extremely unlikely that that could be done.

Photo of Lord Elton Lord Elton Conservative

In that case, will the Minister interpret for me and other members what she meant when she said that the Government would come back to the House? At one stage when she was talking about the memoranda of understanding she said that they should grow naturally and she did not doubt that she would be able to come back to the House. Will that be during the passage of the Bill or on some other occasion, and if so, when?

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

We do not have the timetable of the drawing up of any memorandum of agreement at the moment. It is very much work in progress. All I was saying is that as the Bill's passage evolves, if there are things within our scope to come back and tell the House about the development, we certainly will do so.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Minister, Home Affairs, Shadow Minister, Welsh Affairs

I do not expect turf wars between the commissioners for Northern Ireland, Scotland, Wales and England, but close co-operation. However, that is not the point. The importance of the commissioners is their ability to be advocates for children with the relevant Ministries; shall we say, the Home Office? Up to now, the Welsh commissioner has informally been able to take up the cases of individual children with the Home Office and obtain replies from that department.

If the English commissioner comes in with no remit to take up individual cases, I postulate a system where there is a youth in a young offender institution in Wales who is being abused, either by fellow inmates or by staff. The Children's Commissioner for Wales could today take up that individual case and pursue it with the Home Office, not because of any statutory powers but because that is the practice that has grown up.

I am sure that the English commissioner would be standing by applauding his efforts if that were to happen, but what would the Home Office reaction be? Would it not say to the Welsh commissioner, "I am sorry, chum, we listened to you before, but now that there is a UK commissioner whose responsibility is for non-devolved matters in Wales, we're going to listen to him. If he doesn't have the power to take up individual cases, tough—we can only look at the situation as a whole"? The individual being abused has thereby lost the championship of the Welsh commissioner and it has not been replaced by the so-called United Kingdom commissioner.

With the greatest respect to the Minister, of whom we are all fond in Wales and in the Committee, what communication has there been with colleagues in her party who are now in government in Cardiff—I have to make the point that the Welsh commissioner came from the co-operation between the Liberal Democrats and Labour in Wales—who are almost the majority party in the Assembly and who voted 50 to nil against the policy that she is putting forward today? Surely they have some influence on the way in which this Government are thinking here. If they do not, if anything undermines the devolution settlement, it is that this Government will not listen to what Members of their own party are saying in the National Assembly.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 8:30 pm, 4th May 2004

I can assure the noble Lord that we have very close contact with our colleagues in Cardiff. I was speaking to Jane Hutt only hours ago about the fact that the Welsh Assembly had given its full support to the Bill as a whole, and we welcome that. We are mindful of the feelings of the Assembly Members. I simply reiterate that Jane Hutt said very firmly in committee that there would be no change and no loss in the powers of the Welsh commissioner. I can do no more than reinforce that point. The commissioner will be able to go to the Secretary of State for Wales via the Minister, as he does now, with whom he has informal relationships. However, the routes that are taken and the processes that are applied will be worked out between the commissioners.

Although I hesitate to advise patience, I believe that during the course of the Bill we shall become clearer on some of these matters. However, I can assure the noble Lord that we are alive to these issues.

Photo of Lord Elton Lord Elton Conservative

As a Back Bencher, I am becoming increasingly confused. From what has been said, I am learning that there is a system in Wales which protects children and in which the children's champion has access, informally or formally, to offices with non-devolved functions relating to Wales. I am now told from the Front Bench opposite that, in spite of that, we are to introduce a new element and that the inter-relationship of the two is so symbiotic and complicated that we are not to know, while we are legislating for it, what it will be and we must wait to see how it evolves. I do not think that that is the way to legislate. We should make things simpler and not more difficult and more certain and not more uncertain.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I very much hope that our consideration of the Bill is not confused; I do not believe that it is. When we come to debate later clauses, we shall consider the powers of the English commissioner to take up cases. In fact, the English commissioner will not be able to pursue individual cases in the same way as the Welsh commissioner can. That is one difference.

The question raised by the noble Lord, Lord Thomas of Gresford, concerned the ability of the Welsh commissioner to continue to do the things that he does at present. I have given assurances that that is absolutely the case and that there will be no change in that respect. The UK commissioner will have some additional scope, in terms of access, to represent issues which are now presently reserved. In that case, the relationships will be complementary and supportive. We shall pursue these issues at various stages of the Bill—perhaps in more detail.

Photo of Earl Howe Earl Howe Conservative

I am most grateful to all noble Lords who took part in this debate. I was also grateful to the Minister when she said that she would look at the wording highlighted by noble Lords to see whether it could be made a little clearer. However, I am sorry that she resisted the thrust of the argument that I and others attempted to put forward.

The Government's route here may be logical but I suggest that it is not the only logic. It depends on your starting point. If your starting point is the logic that flows from the devolution settlement, if I may use that phrase, you will end up with the Bill as it now is. If your starting point is the advocacy arrangements that children are likely to find simpler, more understandable and less confusing, then I believe that you end up roughly where I suggested in the amendments that I tabled. The arguments advanced by the Minister are essentially top-down arguments, and that is what I find unappealing about them.

I do think that there is merit in re-examining the idea of each country having its own commissioner who fully understands the law of that country as well as its language, culture and demographic characteristics, but the key point is that in each country there should be one person to whom children have easy access and who is in a position to take a holistic view of children's needs. That is the express view of the three current commissioners, who made a joint public statement at the end of March to that effect. The second speech by the noble Lord, Lord Thomas of Gresford, was extremely powerful in that context.

I worry a little about the term "UK commissioner" because although the Children's Commissioner is described in the Bill as being responsible for children in the United Kingdom, Clause 5 makes it very clear that he will not be concerned with the views and interests of children who fall under the remit of any of the other three commissioners, in relation to devolved matters, nor may he undertake inquiries into any devolved matters. It is therefore a little hard to see how he can be in the fullest sense a UK commissioner.

But we have explored this subject in some depth. We all have much to reflect on between now and Report and it is time to move on. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

This might be an advisable time to withdraw, so I suggest that the Committee adjourn until 9.10 p.m.

[The Sitting was suspended from 8.37 to 9.10 p.m.]

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 11A:

Page 1, line 9, at end insert "(or who are temporarily abroad as a result of the posting abroad of a parent with Her Majesty's Armed Forces or Diplomatic Services)"

Photo of Lord Lucas Lord Lucas Conservative

In moving Amendment No. 11A, I shall speak also to my other amendments in the group. These amendments have one thing in common, which is they have nothing whatever to do with each other. This is one of those groupings which is put in occasionally to hurry up the progress of the Committee—particularly after any group that involves the Welsh. Perhaps I may take my amendments in order. So far as concerns the other amendments, I will listen and learn from other speeches.

Amendment No. 11A concerns principally our Armed Forces. We currently have 25,000 children abroad with the Armed Services. The responsibility for matters relating to those children flows through the Ministry of Defence. Generally, the Ministry of Defence has other things on its mind, particularly when it comes to budgets; and children's matters rate somewhere below cigar lighters for generals. It commonly takes many years for improvements that we make in this House to children's services in the UK generally to filter through to the children of Armed Services personnel who are abroad on active service.

We should take the opportunity of the Bill to shift that gently in the right direction. I have two amendments on the subject, one at this end of the Bill and the other right at the back end—Amendment No. 247A. Amendment No. 11A would extend the remit of the Children's Commissioner to those children of personnel serving abroad. Obviously, when they come back to the UK they will be under the commissioner in whose patch they happen to be living. I shall not try to rehearse the arguments of the previous amendment. While the children are abroad they have no one looking after them. We should try and do something about that.

Amendment No. 18 is my second amendment in the group. It is really cheeky of me putting it in because I have absolutely nothing to teach the noble Baroness on the matter. I have long talked about the need for research and evidence-based policies. The noble Baroness has actually done something about it and has begun to bring that sort of attitude into the DfES, for which I am enormously grateful. The amendment merely raises that flag again and says, "When we are trying to put together policies for children, let us gather evidence and produce a solid evidence base for whatever it is that we are proposing to do. And let us allow and encourage the Children's Commissioner to promote and direct such research".

My third amendment in the group is Amendment No. 32. It really just picks up an uncertainty that I had about the way in which the Bill was constructed, in that it is clear that the Children's Commissioner will not be in a position to offer advice to individual children. None the less, a lot of individual children are going to contact him. One gets into problems with data protection rights and child protection and so on.

It is clear to me that whatever we do, it has to be possible for the office of the Children's Commissioner to direct or pass on children who come to him to those who are capable of dealing with individual children. I want to be absolutely sure that he has the powers and rights necessary to effect that passing on. It takes a lot of courage for a child to raise a matter with an adult. If the first time they do that, their voice falls on stony ground, their voice may never be heard again. I want to avoid that if at all possible.

Amendment No. 41, which is my last amendment in this group, comes back to a discussion that we had on Amendment No. 17. Subject to correction, it is my strong recollection that it is the common practice to lay out in primary legislation how a commissioner, or a similar body, might report. It rather sets the relationship between that body and the Minister and the public at large. At the moment, the commissioner has a right to report to the Secretary of State, but he has no right in the Bill to report to the public. The noble Baroness said that there is nothing to stop him doing that; yes, but there is no right for him to do it. I want the Bill to be clear that the commissioner has the right to go public. He does not have to sit and wait for the Secretary of State. He will not be one of those people who puts a report in to the Secretary of State and two years later it is not published. We have entirely too much of that.

This will be a commissioner who has a right to be heard. Although there may, out of courtesy and good practice, normally be some advance notice for the Secretary of State, and he might expect to get things a month or two in advance, he should not dictate the publication date. I advance those arguments with the object of hearing what the Government have to say on the subject; at this time of night, I certainly have no intention of dividing the Committee. I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I rise to speak to Amendments Nos. 12, 15, 16, 21 and 23 in this group, and to support the noble Lord, Lord Lucas, in particular in his Amendment No. 41. I too am in favour of a commissioner who has a right to be heard.

The purpose of my amendments is to probe the scope and functions of the Children's Commissioner and the resources available to her or him. For example, how will the work of the commissioner influence government policy across all departments, their related quangos and other policy-making bodies? Will he or she be able to commission or sponsor other organisations to conduct research on his behalf? How influential will the commissioner be in practice? Where the issue concerns the interests of children, will he or she be formally consulted by bodies such as the Commission for Racial Equality, the Learning and Skills Council or the Advertising Standards Authority? How will that work in practice?

Amendment No. 12 would further strengthen the dreaded "R" word—children's rights—by allowing the commissioner to require anyone exercising functions, or engaged in activities, affecting children to take account of their views and interests. It is all very well the commissioner having to take account of children's views and interests, but it would be good if he or she were able to require other people to do the same. Amendment No. 15 would replace the rather weak provision on considering and researching complaints procedures for children, with the altogether more robust duty to review and report on the effectiveness of advice and advocacy services, complaints procedures, inspection and whistle-blowing arrangements, so far as they relate to children. The same sort of thing applies to the Commissioner for Wales.

Amendment No. 16 allows the commissioner to participate in matters affecting children on bodies to which he or she is appointed. It seeks to probe the Government's intentions for the commissioner's influence in relation to quangos and other bodies. It will allow the Minister, if she will, to give further clarification of the resources available to the Children's Commissioner.

If the Government do intend that the commissioner will have influence over the work of such bodies as relate to children, will there be sufficient resources available to make such an involvement manageable? How does the role of the Children's Commissioner in relation to other bodies compare with the functions of other similar bodies such as the General Teaching Council? A key part of its role is to advise government and other education partners on issues affecting the profession, based on teachers' views and expertise.

Amendment No. 21 is very similar to Amendment No. l8 in the name of the noble Lord, Lord Lucas. That allows the commissioner to sponsor research by other bodies. But there is again the resource implication. The proposed funding of the Children's Commissioner is minimal. To be effective both the amendment of the noble Lord, Lord Lucas, and mine would need funding. The resources available would have to be substantially increased.

Amendment No. 23 was referred to by the noble Lord, Lord Rix, a little earlier and I added the word "all", which relates to "all children". The reason for that was to satisfy the many lobbying groups. We are all very grateful for their help. They wished to insert different kinds of children. When I was presented with such amendments it occurred to me what the Minister was likely to say in reply. I suspected that she would say that the provision would refer to all children and it was not necessary to specify particular groups.

However, without a pro-active statement on equality in the Bill, disabled children, asylum-seeking children, children in custody, the children of ethnic minorities and Travellers' children, may not benefit fully from the work of the Children's Commissioner. Therefore, it would be very helpful if the noble Baroness would look favourably on inserting the word "all" to send out a message to all groups that every child is included in the measures encapsulated in the Bill. I look forward to hearing the Minister's response to all these amendments and in particular to Amendment No. 23.

Photo of Lord Rix Lord Rix Crossbench

I thank the noble Baroness, Lady Walmsley, for including the word "all". As she well knows, I represent those with profound intellectual and multiple disabilities. They are included in "all children". I say to the noble Lord, Lord Lucas, that I would be much happier about Amendment No. 41 if it included at the end "in all accessible formats". That would make it available to people with all manner of learning difficulties and disabilities.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I shall speak briefly to Amendment No. 28. My noble friend Lord Northbourne had to leave early. I shall do my best to make one or two of the points which I am sure he would have made.

The Children's Commissioner is to be concerned particularly in this area with the views and interests of children. Four or five examples are given. There is a real concern here which is why the amendment has been tabled. One area of a child's life which is not even remotely covered is that in the family. Referring to what was said on a previous occasion, I know that a major concern —

A noble Baroness:

That amendment is in the next group.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I am so sorry. I shall sit down.

Photo of Earl Howe Earl Howe Conservative

I shall speak in particular to Amendment No.19, which is included in this group. Clause 2(2) of the Bill specifies that one of the functions of the Children's Commissioner is to advise the Secretary of State on the views and interests of children. While that is not an objectionable provision in itself—indeed, quite the contrary—it seems not to go far enough. Surely, the point of having a commissioner whose job it is to represent the views and interests of children, is that he should be able to do so not only to a single Minister but also, where necessary, across all departments of government.

Any piece of planned-for legislation of any description which looks as though it will impact on the interests of children should be the commissioner's business. He should be consulted on it and have the right to make his views known to whichever department of state happens to be sponsoring it.

I cannot see anything in the Bill that would enable the commissioner to adopt such a role or give him the right to adopt that role, yet it seems to me to be a role that is absolutely crucial. Who other than the commissioner will there be with a mandate to protect children's interests across government as a whole?

I hope the Minister will be receptive to this point because, quite apart from the debates we have had on whether or not the commissioner should be concerned with children's rights, there is no earthly reason why he should not have a duty similar to that of his three counterparts in Scotland, Wales and Northern Ireland to make recommendations to government as a whole. That should be not only implicit but also spelt out in the Bill.

Turning briefly to Amendment No. 15, perhaps I may ask the Minister for some reassurance on Clause 2(2)(c) which, as she may know, has caused some fluttering in the dovecotes in certain educational circles. The point has been made to me very forcefully that in our schools there are already nationally endorsed procedures in operation for the handling of complaints; on top of those, many procedures exist at school level as well. So we are not therefore looking at a uniform set of arrangements. The power given to the commissioner to review complaints procedures could, if we are not careful, turn into something quite bureaucratic and far reaching. I can quite see why this provision has been included in the Bill, but it is a power that will need to be used with some care if schools are not to find themselves disrupted quite considerably.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

The amendments in this group are very important. From Amendment No. 12 onwards they seek to strengthen the role of the commissioner. Amendment No. 15 is particularly important for alleged cases of abuse because it would protect children in a children's home, an area of great concern over recent years.

It is with hesitancy that I seek reassurance that Amendment No. 16 would not undermine the independence of the commissioner, who should be free to go wherever she or he feels appropriate. I am concerned that appointments to bodies might result in a conflict of interest arising at some stage.

I wish also to ask the Minister how, without the power to research, the audit requirements of the commissioner's office under public scrutiny would be met? Without the power to research, I am concerned that there could be an impedance of accurate data collection and that the processes of inquiry would need to be expanded beyond the date of their workings of the role.

Photo of Lord Hylton Lord Hylton Crossbench

The noble Lord, Lord Lucas, has done the Committee a service by giving the number of children belonging to members of the Armed Forces and diplomatic and consular services who are at any one time serving overseas. In doing so he has added strength to the argument that the words "all children" should be in the Bill. I support his Amendment No. 41, which seeks to give the commissioner the right to publish material on his own initiative. This would helpfully strengthen the role of the commissioner for England or for the United Kingdom.

I also support most or all of the amendments tabled by the noble Baroness, Lady Walmsley. Amendment No. 12 seeks to introduce the word "require". It seems to me that that would strengthen the role of the commissioner in a useful and practical way.

Amendment No. 15 relates to independent advocacy. I should mention here a practice that has been going on in Northern Ireland for quite a number of years and to which I have previously spoken, in other contexts, in your Lordships' House. I refer to the provision of independent advocacy services for young people contained for long, short or medium periods in secure establishments. It has worked out very well in practice; the independent lay advocates have been trained by a voluntary organisation in Northern Ireland with which I happen to be connected. I think there is a strong case for learning from that experience in Northern Ireland, and replicating it or introducing it into England and perhaps even other jurisdictions.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions) 9:30 pm, 4th May 2004

I sympathise with much of the thinking that lies behind the amendments in this interesting group. It is very important that the commissioner is effective in promoting the views and interests of children, consulting as widely as possible and having a broad vision of what constitutes their needs and interests. Noble Lords have raised many different concerns about the coverage and nature of that role which is, in a sense, what binds the amendments together.

I agree with the noble Lord, Lord Hylton, that the noble Lord, Lord Lucas, has raised an important point in Amendment No. 11A, which would ensure that the provision extends to service families overseas. Amendment No. 23, in the name of the noble Baroness, Lady Walmsley, would ensure that the commissioner's role covers all children. There is a separate group of amendments on the role of the commissioner in relation to children with particular needs, to which the noble Baroness alluded. We will no doubt discuss the particular needs of those children on another occasion.

I begin by assuring the Committee that the commissioner will indeed be the champion of all children, be they the children of service families living abroad, the children of families seeking asylum in the UK, children who are looked after or those who go to the local school, nearest to where they were born. The commissioner's role will extend to all children. It is my understanding that the Bill's wording encompasses all children, but I will take that away and see whether inserting "all" adds anything to our deliberations, which I believe the noble Baroness and the noble Lord, Lord Rix, want me to say. However, noble Lords can rest assured that the wording of the Bill covers all children. There are no exceptions; noble Lords would not wish it otherwise, and neither would I.

I am also very grateful for the detailed attention that noble Lords have paid to the way in which the commissioner carries out his or her role. Amendment No. 16 states that the commissioner should be able to sit on bodies that affect children—something of concern to the noble Baroness, Lady Finlay—and could be a consultee in inquiries or aspects of work carried out by other organisations or bodies.

Amendment No. 21, along with Amendment No. 18 in the name of the noble Lord, Lord Lucas, aims to allow the commissioner to support research and pilot projects. Amendment No. 41, also in the name of the noble Lord, Lord Lucas, seeks to ensure that the commissioner can promote discussion and express views across the whole of his or her remit. This relates to Amendment No. 19, to which the noble Earl, Lord Howe, spoke; it seeks assurance that the commissioner will advise and consult with all government departments on matters relating to children.

I agree with them all. The commissioner should be able to do these things, assuming that this is what children want the commissioner to do. The commissioner's job is to be responsive to and face children in all the work that he or she undertakes. There is nothing to stop the commissioner doing the things that I have identified. I hope that with those reassurances, the noble Lord, Lord Lucas, will feel able to withdraw his amendment.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

Before the Minister sits down, will she confirm that were the commissioner to serve on other bodies in his or her capacity as commissioner representing the interests of children, he or she would not be likely to be compromised in any way in terms of conflict of interests, as was suggested by the noble Baroness, Lady Finlay of Llandaff? Will the Minister say whether such attendance would be properly resourced by the Government?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

On the second point, it will be for the commissioner to determine how the resources should be spent. It is quite within the remit of the commissioner that, if he felt that it was important to bring to the attention of the Secretary of State the fact that he wished to perform a function, resources could be discussed. However, it would be wrong of me to commit the Government at this point. It is up to the commissioner to decide whether he wishes to sit on bodies or take part in other ways, and not up to us to constrain or prescribe. However, if there is concern about this matter, perhaps we can explore it outside the Committee to see whether I have understood the noble Baroness's concerns.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

Perhaps I could add a question? Those who sit on non-departmental bodies and other groups have a primary responsibility towards that group. I would be concerned if the commissioner represented something other than the work of that group. Therefore, I think the matter needs teasing out and thinking through. There could be real conflicts of interest, which, if not thought through, would cause real difficulty, both for the body and for the independence of the commissioner.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

It is always interesting when an amendment goes in a different direction to the one I presumed. Our view is that the commissioner will make a decision about which bodies to sit on. However, in the light of what has been said, we should either correspond or meet to tease out the issues—as the noble Baroness, Lady Howarth, just said—to be absolutely clear. I hope that that satisfies noble Lords.

Under the legislation as it stands, the commissioner can do all those things, including issuing reports on subjects and engaging with all government departments outside of the annual report to Parliament. Rather than put them on the face of the Bill, we feel that it is important for the commissioner to be free to respond to children and young people in deciding what to do. The commissioner is free to do those things. Therefore, I hope that those particular amendments can be withdrawn.

We have already dealt with Amendment No. 43. Turning to Amendment No. 11A, I want to reassure the noble Lord, Lord Lucas, that it is our firm intention that children temporarily living abroad while their parents are on official duty overseas will have access to the commissioner should that be appropriate. Because we have not had time between the tabling of this amendment and this debate, I shall check the legal technicalities of the children's situation. Should it be necessary, the Government will introduce an amendment to ensure that they are properly catered for, as the noble Lord would expect.

Amendment No. 32 gives me a chance to clarify a little more of the commissioner's role. It is to promote awareness of the views and interests of children, and to make children aware of this function and of how they may communicate with the commissioner. Although it is inevitable that children will get in touch about individual problems, as we have made clear in all of our discussions and statements, we do not want the commissioner to be drawn into such inquiries. That is not an appropriate role in this context. There is no reason why the commissioner should not advise on general sources of help available for different kinds of problem, but we would not want him to have a formal referral role. Our understanding is that the commissioner could already offer general advice, but I am double-checking the position to ensure that that is correct. If there is anything in the existing Bill to prevent the commissioner providing such general advice, the Government will introduce a suitable amendment. On that basis, I hope that the noble Lord will feel able to withdraw Amendments Nos. 11A and 32.

Amendment No. 12, tabled by the noble Baroness, Lady Walmsley, and supported by the noble Lord, Lord Hylton, would make sure that the commissioner makes a difference to the way in which services take account of children's views. I share that intention, but it has to be for the services themselves to change. Taking account of children's views will be central to being able to deliver effective services and should be part of performance management processes. It would be wrong for the commissioner to act as another formal inspectorate, which is what would happen, albeit that is not entirely what the noble Baroness planned. That is not to say that the commissioner should not comment on how well this is achieved and approach services, inspectorates and the Government with views on what they need to do to improve. With that reassurance, I hope that the noble Baroness will feel able to withdraw that amendment.

Finally, Amendment No. 15 would expand on the particular focus that the commissioner will have on ensuring that complaints procedures are accessible to children and young people. The noble Earl, Lord Howe, raised a particular concern which I hope I will address in the course of my comments.

The intention behind the existing subsection (14)(c) is to reflect the commitment in the Green Paper that complaints processes should be looked at by the commissioner to assess whether they work for all children and young people. Clearly the advice and support available is crucial to this and would be included in what the commissioner would look at in carrying forward this part of the commissioner's remit. There is nothing to stop the commissioner looking at after-services such as statutory advocacy provision; indeed, those might be especially relevant in his specific role in supporting children who have more difficulty in making their voices heard. However, this specific remit is perhaps relevant to particular groups of children. On that basis, we would not wish to see this provision on the face of the Bill.

With those assurances—and, I hope, reassurances to the noble Earl—on the intent behind this part of the function of the commissioner, I hope that noble Lords will feel able to withdraw or not to press their amendments in this group.

Photo of Lord Lucas Lord Lucas Conservative

I am very grateful to the noble Baroness for the explanation she has given particularly on Amendment No. 11A. I entirely accept what she said on Amendment No. 18. On Amendment No. 41, I shall go away and check my precedents. I will probably not come back on it when I discover that she is right and I am just being argumentative.

I have remaining concerns on Amendment No. 32. When an adult rings up one might say, "Sorry, no; it is not for us. Why don't you try so and so?". An adult is well capable of dealing with that sort of advice and, particularly if they are provided with a telephone number, will pick it up again. I think that children are rather different, particularly children who have any variety of distress, problem or difficulty. It can require a great deal of bravery to make one of these calls. If the first one happens to be to the Children's Commissioner whereas it should have been to Childline, it is very difficult to say to the Children's Commissioner, "No, you cannot take their telephone number. No, you cannot give it to Childline. All you have to say is, 'Don't talk to us. There's a list of other people you might talk to on our website'". I think that that is second best. I know that it is difficult to act as a referral service, and I certainly would not suggest that that be done for adults. However, I think that to drop children back to stage one where they have to summon the courage again and find someone else to approach is not the best we can do.

I shall certainly return to the issue. I very much hope that the Government will have a chance to think through the matter again. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 23 not moved.]

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 24:

Page 2, line 5, at end insert—

"( ) the family;"

Photo of Lord Lucas Lord Lucas Conservative

There is a companion amendment, Amendment No. 26, which does the same thing slightly later in the Bill. Amendment No. 24 tackles Clause 2(3), which lists the things with which the commissioner,

"is to be concerned in particular".

The amendment then provides a list of various matters that we are supposed to care about in relation to children. However, in that list there is absolutely no mention of family.

I have no particular attachment to the wording; I suspect that the noble Lord, Lord Northbourne, in his amendments, has done it better than I have. However, it is astonishing to make a list of things that are important to children and not include family. Family modulates so many of the other things that are in here to begin with. Furthermore, it has an enormous importance on its own—how things are going in the family; how relationships are going in the family; how supportive the family is being of a child. Many of the things that go wrong for children are due to difficulties in the family. Many of the other things that can go wrong for children are best dealt with by support given in the family. It is so crucial and central to a child's wellbeing that I am really quite astonished that we should have got to a point where we can list things that are important to a child's wellbeing and leave out family. I very much hope that this will turn out to have been an oversight. I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 9:45 pm, 4th May 2004

I support the amendment and, indeed, Amendment No. 28 which stands in the name of my noble friend Lord Northbourne.

It certainly seems fairly odd, if I can put it that way, that this major aspect of a child's life has been left out. Referring to what the noble Lord, Lord Elton, said on an earlier amendment, I rather wonder whether it is because we are concerned, as indeed we are, with those who are disadvantaged and whose rights do not exist within their family and so on. But we need to remember that this Bill is not just about those children; it is surely about all children. The vast majority of children have supportive families. Perhaps the need there is for them to be better supported.

We need to remember that most of the important things in life—love, security, encouragement, the boundaries that need to be set—also come from within the home. Therefore, it seems a little odd to ignore the views of children on this very important issue in their lives. Perhaps the Minister will be able to explain why this matter has not figured. One begins to wonder whether the right questions were asked if the Government have managed to leave out such an important chunk of the normal child's life. I leave it at that.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

I fully appreciate what this amendment is trying to do. Of course, the family is tremendously important in a child's life. However, it raises the question of what is a family. Some children will not be in a family as many of us would possibly define it. I should like to tease this out some more and consider what we mean by the family. For example, there are children in care and children who are in many different kinds of families. Although I fully understand what the proposers are saying, I should like further definition on the amendment.

Photo of Baroness Thornton Baroness Thornton Labour

My problem with this amendment—I may be misunderstanding its meaning—is that the Bill is concerned with taking into account the views and interests of children. It is not that it excludes the family, but it is about children. What concerns me is that we might be tying ourselves into a situation where we have to take account of the views of children and families when what we really need to do is take account of the views of children.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I hope that I may add one very small point. The point that I was trying to make was that it is the children's views of family that seem not to have been included in the things that are relevant to their wellbeing.

Photo of Lord Elton Lord Elton Conservative

It follows from what the noble Baroness, Lady Massey of Darwen, said that the fact of children not being in a family is equally important. Perhaps we have to find a new way of formulating this whole subsection. But one cannot ignore what may be the biggest factor of all in a child's life when setting out the things that should be taken into account.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I have some concerns about the amendment because we are again trying to make the commissioner universally responsible for all things. When children in families want help it is because they are experiencing difficulty. They usually want one to leave their family alone in other circumstances. I should like us to be quite clear what we are saying in the amendment, if we suggest that the commissioner should have responsibility for families as well as all the other aspects relating to the welfare of children. We could be really into the nanny state if we make the commissioner responsible for all family life as well as everything else.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

We on these Benches believe that the best interests of children usually lie within their families. There are a few exceptions to that, which I hope that some measures in the Bill will seek to address. That said, because of the difficulty of referring to "the family", I think that "the welfare of the child", which is referred to in the Bill, might cover the issue. We are all agreed that that welfare lies, on the whole, within the bosom of their family.

Photo of Earl Howe Earl Howe Conservative

I should like to add my voice in support of the amendments, particularly those in the name of my noble friend. He is absolutely right in all that he said. Growing up in a loving family is one of the most important benefits that a child can receive for his emotional development and general well-being. I find it strange that there is no mention of family anywhere in the clause.

By family, I do not think that we mean only parents, although parents are an integral part of what a family is. We also mean brothers, sisters, aunts, uncles, grandparents and cousins. For those who live in foster families, it is the foster parents and perhaps their relations. We mean a one-parent family in some cases. Any child who grows up not experiencing the security, example, comradeship and love of his own family has missed out on a very great deal in life. It is not enough to look at the aspects of well-being listed in subsection (3) and try to convince ourselves that such things are somehow subsumed under the headings that we find there; they are not. We need to spell out in terms that a child's family life is a vital and irreplaceable part of his happiness and well-being.

It worries me sometimes when certain people talk about the best interests of the child being paramount. They do so in a way that appears to assume that one can define a child's best interests in total isolation from the relationship that he has with his parents and family. I had that worry when we were debating the adoption legislation two years ago, and I have it now.

The public authorities, whose function it is under Clause 6 to improve the well-being of children, should not be allowed to suppose that their objectives can be achieved without reference to a child's place in his or her own family. Everything that they do should be based on the presumption that families do best by being kept together, and that only in extreme circumstances should the removal of a child from his family be contemplated. Only by placing "family" in Clauses 2 and 6 can we be assured that social services, the police, the commissioner and other authorities will be obliged to pay explicit regard to that presumption.

Photo of Lord Rix Lord Rix Crossbench

May I make a rather wild suggestion at this late hour? Clause 2(3), which is on page 2, states:

"The Children's Commissioner is to be concerned in particular under this section with the views and interests of children so far as relating to the following aspects of their well-being".

It then lists those aspects in paragraphs (a) to (e). Could we not add, in a paragraph (f), "their relationship with a family"? That would solve the entire problem.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I support my noble friend's amendment. As I said earlier, I am concerned that it is simply too easy to isolate children when one speaks of them and to forget that most of the time they are within some caring context—with an adult or parent caring for them. Government policies on parents and supporting a child poverty strategy are very welcome, but when the financial incentive for parents, even of a child under one, is to go to work rather than to look after the child—although, I believe that that is beginning to change—it is easy to slip into isolating children and forgetting what they are in this context.

There is a culture in this country that perpetuates the undervaluing of those who provide care—whether they are parents, social workers or foster carers. Compared with the continent, we simply do not do enough to value the people who provide care for children. That is another reason why I shall listen with great interest to the Minister's response, because we need to build that culture of recognising the vital role that parents and carers play for children. I am worried that if we do not include "family" within that, we might be missing an opportunity to build that consensus for valuing more the support for children that is provided by families and other carers.

Photo of The Bishop of Chester The Bishop of Chester Bishop

I rise briefly to support entirely the intention behind the amendment. I am told that elephants live about as long as we do, but whereas baby elephants, when they are aged four or five, are able to go off into the jungle on their own to fend for themselves, our children are dependent on parents, or whoever is in their place, for three or four, or even, nowadays, five times as long as is the case with elephants.

Indeed, those patterns of dependency for children and young people are being ever more enhanced—and top-up fees will simply add one more force to that, as has been said. Fundamentally, if we are to look at the wellbeing of children, we have to look at the close network of support that society seeks to provide for them, which, in most cases—and ideally—would involve the family. But the term "family", as has been hinted, embraces both the nuclear family, the immediate parents, and that which we have so often lost in our society, the extended family—the wider network of relations. There is an old African proverb that it takes a village to raise a child.

The thrust of the Government's proposals for the Children's Commissioner is to give that person a broad, wide-ranging, co-ordinating and overseeing brief; not to try to over-define or tie down but to give that person something of a free hand to look at the overall experience of children in our society and to help to formulate proposals. That means that the relationship of children to family must be part of the remit. I have my doubts about whether it should be specified as simply one more on a list, for reasons that have been given. But there is no doubt that from these Benches we can support the fundamental thrust of the amendment.

Photo of Lord Hylton Lord Hylton Crossbench

These are important amendments. Of the two approaches, I slightly favour that set out in Amendment No. 28 and I agree with my noble friend Lord Rix that we need to consider family life insofar as it affects the wellbeing of children. That is not only what we need to consider, but what the commission needs to consider in future. I hope that that approach will go some way toward satisfying my noble friend Lady Howe of Idlicote.

Earlier in our discussions the Minister talked about the commissioner having a strategic or systemic approach to the children who he has to take into account. We can generally agree that that is the right approach, but I would like to see the commissioner considering family life, because it is the principal source of the love and nurturing that children require if they are to develop into satisfactory, reasonable adults.

In order to try to help the Minister's consideration of this question, I will recall what was happening 30 years ago, sometimes slightly more, when I and many others were deeply involved in questions of homelessness, housing aid and advice. We defined homelessness not just for single people but for families, in terms of normal family life. We asked ourselves, "Do a given family's living conditions allow them to enjoy normal family life?". If they did not have sufficient living space, they were deprived of normal life and therefore ought to be considered to be homeless, regardless of whatever the statutory definition of homelessness might have been at that time. I offer that to the noble Baroness the Minister, in the hope that it may be helpful.

Photo of Lord Elton Lord Elton Conservative 10:00 pm, 4th May 2004

That was a singularly helpful illustration. Looking at the Bill, it seems to me that the process we are now looking at starts in Clause 2(2)(a). The children's commissioner may, in particular, under this section,

"encourage persons exercising functions or engaged in activities affecting children to take account of their views and interests".

We are talking about their relationship with their family. The commissioner will presumably have lines to the housing authority as well as to the education authority, the Probation Service and others who impact on the family, and will be able to make them aware of what the effect of their proposals may be on the child, as the child sees it. That could be a very helpful dimension. I think my noble friend's amendment is an exceedingly good one. Whether or not it is finessed in the way the noble Lord, Lord Rix, suggests or not, I leave to others to guess.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Women and Older People, Non-Departmental & Cross-Departmental Responsibilities

I hesitate to prolong this, but I think we recognise that paragraphs (a) to (e) reflect the consultation process which was engaged in before the Bill, and the views of children as they were expressed then. Nevertheless, regarding the phrase "views and interests" of the children, we have already had a question raised on what the word "interest" means: whether we mean their interest—that is, their wishes or ideas—or the best interests, meaning the things that most reflect well upon the lives of children. That point was also made in relation to an amendment in the name of the noble Lord, Lord Lucas. Speaking not in a party political sense but personally, I come to a similar conclusion to that of the right reverend Prelate the Bishop of Chester; namely, that somewhere in this Bill we need to make it clear—and it may be that it is there already, I can see the Minister looking very speedily through her Bill—that we recognise the enveloping importance of the family and the life of the child.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I was looking speedily to make sure that I referred to the noble Baroness, Lady Thomas, when I get to that particular section in my notes. I am very grateful to all noble Lords who have participated in this debate—not least the noble Lord, Lord Rix, for coming up with an amendment that was promptly supported in the Committee. That goes beyond the manuscript amendment by my reckoning, but it was none the less an important part.

The purpose of these amendments is to add "family or family life" to the description of what we mean in the concept of well-being. It is an important concept in this Bill and, as the noble Baroness, Lady Thomas, said, we defined it in terms of the outcomes that children and young people told us they wanted to achieve. Our ambition is that a common understanding of outcomes should underpin the work of the commissioner and be a focus for the co-operation arrangements in Clause 6.

Amendment No. 24 from the noble Lord, Lord Lucas, and Amendment No. 28 from the noble Lord, Lord Northbourne, fall in Clause 2. Amendment No. 86 from the noble Lord, Lord Lucas, and Amendment No. 89 from the noble Lord, Lord Northbourne, fall in Clause 6. I entirely sympathise with the concerns of Members of the Committee that we acknowledge the primary importance of families, parents and carers to the outcomes achieved by children. I was only sorry that the noble Earl, Lord Howe, did not mention step-parents. As a step-mother, I take that personally—but I am willing to retract my personal outrage on the basis that I am sure he meant to include them.

However, I do not believe it is appropriate to amend the definition of "well-being" in this way. It is a direct translation of the outcomes which we set out in the Green Paper, Every Child Matters: being healthy; staying safe; enjoying and achieving; making a positive contribution; and economic well-being. As noble Lords heard me say earlier, that came from the extensive consultation exercise.

Amendments Nos. 24 and 28 also raise the question of whether the commissioner should consider family, family life or support to families to be within his remit. I can assure noble Lords that it can be. The commissioner will be free to determine the issues in which he takes an interest and this could well include children's views about what should or should not be done to support families and family life. There would be nothing to stop the commissioner from pursuing this as a proper topic for investigation, discussion and debate.

I turn to Clause 6 and Amendments Nos. 86 and 89. The outcomes are used again here to illustrate the scope and range of areas in which agencies will be co-operating to improve well-being. For the reason I have already given, I do not believe that we should alter the definition of "well-being". However, I agree with noble Lords that families and parents are extremely important in the context of the co-operation duties which are designed to improve services for children and young people.

Indeed, as I am sure noble Lords will know better than I, support for families and parents is a particularly good example of the kind of work likely to be done better as a result of better co-operation. In particular, the voluntary sector has real expertise in this field. We have also made it clear that parents and families should have a clear say in the way services are delivered.

We know from our experience with programmes like Sure Start that the involvement of parents and families is critical to the success of much of the innovative work we are taking forward; for example, through our children's centres and extended schools. We will expect local authorities and their partners fully to consult children, young people and their families in developing services. I am happy to confirm that this will be made clear through the guidance associated with Clause 6.

I hope your Lordships will agree that amending the list of outcomes is not the right approach. However—here I come to the noble Baroness, Lady Thomas—I agree with the right reverent Prelate and other noble Lords that it would be appropriate to put something on the face of the Bill to reflect the importance which the Government and services should place on parents and families. I undertake that the Government will consider how we can do that. I am sure, too, that we will return to this topic in detail when we debate amendments to Clause l6 in particular. In the mean time, with that reassurance as the way forward on this set of amendments, I hope that Members of the Committee will feel able to withdraw these amendments.

Photo of Lord Lucas Lord Lucas Conservative

I am grateful to those who have spoken. I am immensely impressed that we should have had such a varied and wide-ranging debate at ten o'clock at night. For all noble Lords to have stayed for it is impressive and I hope that it has impressed itself on the Minister. I believe that it may have done.

If this Bill leaves this House with the word "family" in it and with real intent in its expression, we will have made a significant improvement. I have no particular affection for sticking it in this list—it is a question of how it lies in the Bill and its overall effect on it.

I must carry out some research and discover what questions children were asked that they should not mention "family" in the list. Perhaps if it is not somewhere obvious, the Minister could drop me a note. We will doubtless return to the matter again in Committee and on Report, but for now I beg leave to go home to bed.

Amendment, by leave, withdrawn.

Moved accordingly, and, on Question, Motion agreed to.