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moved Amendment No. 31:
Page 2, line 17, at end insert—
"( ) ensure that the content of any material issued by the Commissioner or his staff, whether printed or in electronic or other form, which is intended to be used by children, takes account, so far as practicable, of the means of communication, level of understanding and usual language of the intended recipients."
I rise to move Amendment No. 31 and to speak to Amendment No. 45, which is included in this group of amendments.
The wording of Amendment No. 31 refers to all children, and we have already had several debates on the matter. The Children's Commissioner must be required to have a robust policy on accessible information. We are concerned that it should include, for example, a website which fully complies with the Web Accessibility Initiative guidelines and which has been rigorously user-tested by children, including disabled children. For example, children with visual impairments, learning difficulties, and physical impairment should be involved in the testing. A recent formal investigation by the Disability Rights Commission into web access, covered by Part 3 of the Disability Discrimination Act, revealed that 80 per cent of public websites are impossible for disabled people to use. It is therefore vitally important that any new website set up by the commissioner for the use of children should not fall down in that way.
It should also provide for information in the full range of accessible formats, such as large print, audio, Braille, disk, easy-read, pictorial format, and VSL video—for disabled children. These should be available at the same time as the original print version. It will not be good enough to produce them several weeks or months later.
It is also important that information in all formats in the community languages is produced, to prevent exclusion of children from black and ethnic minority communities and those brought up with Welsh or Gaelic as their first language.
It is also important that information takes into account the different ages and levels of understanding of children. I am reminded of an exercise I was made to do during my teacher training, in which I was given a number of paragraphs from different newspapers to analyse, according to a formula that detected what was the average reading age of somebody who would be able to understand fully the meaning of such a paragraph.
Having gone through school and university and then had teacher training, and having on the whole mixed with people from the same sort of background, it was a great surprise to me to realise that, when teaching children, I would have to use a more restricted vocabulary, a much simpler sentence structure without a lot of subordinate clauses, and to be very careful about contorted sentence structure. It is therefore vitally important that the adults who produce such websites follow the example of organisations such as the NSPCC—in which I express an interest—which involve children in the production of their websites. We must make quite sure that it is understandable to the age of children at whom it is targeted.
The commissioner would also need to ensure that appropriate communication and other support are available to children participating in consultation events with the commissioner, including independent advocacy where that is needed. It may be necessary to make particular arrangements for access for disabled children; perhaps for signers; for Braille, for notes that are passed round; and possibly even for interpreters. It is very important that all those things are taken into account, and I hope that Amendment No. 31 would make that quite clear on the face of the Bill.
Amendment No. 45 is supported by Liberty. It is quite difficult to speak about it here because it is a consequence of Amendment Nos. 50 and 51, should they be passed by the Committee. Those amendments would place the responsibility for drawing up and disseminating guidance about information-sharing with the Children's Commissioner. The commissioner would discharge this responsibility in consultation with the Secretary of State and the Information Commissioner.
The Children's Commissioner would be best placed to make judgments about the balance between the need for privacy and child protection, not least because his or her first interest is the well-being of children. The commissioner would also have the power to review and update guidance, and thereby ensure that best practice was upheld.
Amendment Nos. 50 and 51 give this power to the commissioner. Amendment No. 45 requires the commissioner to report annually on information sharing. There is an argument that the commissioner should report on information sharing anyway, as it is so critical to the well-being of children. I therefore hope that this group of amendments will be accepted by the Government.
I also support Amendment Nos. 47, 48 and 49 in this group to which I have attached my name. They are tabled in the name of the noble Earl, Lord Howe. However, I will not steal his thunder by saying any more, except that he has my wholehearted support for his amendment. I beg to move.
I should like to speak in particular to Amendments Nos. 47, 48 and 49 in this group, which relate to the annual report of the commissioner.
The Bill proposes that the commissioner should report to the Secretary of State and that the Secretary of State should then lay the report before Parliament. Only when this has happened will it be legally permissible for the report to be published. I am not happy about that, because it seems to me to be yet another manifestation of the commissioner's lack of freedom and independence from Ministers.
Concerns have been expressed to me by a large number of outside bodies—including Barnado's, the Children's Society, NSPCC, UNICEF, and a whole host of other eminent organisations—that a government Minister should not have the power to delay publication of the commissioner's annual report. To the noble Baroness it may seem a preposterous suggestion that any of her colleagues would want to delay publication; but, if that is so, why not take this provision out of the Bill? It is unnecessary and its presence only arouses unpleasant suspicions.
It seems to me, however, that there is an even more fundamental point here. Allowing the commissioner to report to Parliament ensures that it is Parliament and not the government of the day to whom he is accountable in an important sense. The Secretary of State would of course be able to lead an annual debate on the commissioner's work and recommendations, and that is as it should be, but it would be for the commissioner himself to determine the content and timing of his report. I would personally favour having the commissioner present his report to a Select Committee of the other place. The other three UK Commissioners report directly to their respective legislative bodies, and the Parliamentary and Health Service Ombudsman can make annual and other reports direct to Parliament.
There are therefore clear precedents for reporting arrangements to be structured in this way—and for good reasons. The point of wanting to have a commissioner who is independent is not only that this accords with the letter and the spirit of the recommendations issued by the Committee on the Rights of the Child; it is also because if children ask, "Who is this person acting for us?", the most off-putting answer they could receive would be, "This is a Children's Commissioner who is appointed by government Ministers, reports to government Ministers, and may not publish his reports until government Ministers tell him that he can". Children need to feel that they have their own champion battling for them, not some offshoot of government.
I am also proposing, following on from Amendment No. 31, that the commissioner's annual report should be produced in a format which is readily understandable to children over the age of 12 years. If we really want children to feel that this is their commissioner, the commissioner needs to be able to communicate with them in language that they can comprehend. It is a simple point, but I think it is an important one. I beg to move.
The noble Earl, Lord Howe, has made an argument for not delaying the report. Until last week, I served on the Joint Committee considering the draft Disability Discrimination Bill. We have delayed our report to both Houses of Parliament—that is the choice of the committee—because we wish it to be available in all accessible formats before it is laid before Parliament.
Although it is usually the task of an office of this House, which is by nature unpopular—the Whips' Office—I take this opportunity of saying something that is not popular before I start. We had some excellent debates this morning, but we are lagging behind on our timetable slightly. I will try to set a good example, as other noble Lords have done, by speaking to the amendment fairly swiftly. I hope that we can make faster progress this afternoon, otherwise it will be a long time before we reach some of the Bill's very interesting and difficult aspects.
The amendments all relate to the publication of the commissioner's annual report, apart from Amendment No. 31, which relates more generally to the material. Of course we see the annual report as a highly significant public document. It is an opportunity for the commissioner to record in a formal document, laid before Parliament, what he has done and what he has found out in the course of his work, the issues he has prioritised, the actions he has taken to improve outcomes and the responses he has had to those actions. It will be an extremely important document; we want it to be read as widely as possible and to inform public debate and public policy. We have the example of how the Welsh commissioner, on the evidence of the Minister for Health and Social Services, has already, in his very robust fashion, made such an impact.
The case made by the noble Baroness, Lady Walmsley, on Amendment No. 31 is completely accepted and understood. There is no doubt that we want the commissioner's report to be read by young people, whatever their situation and capabilities. That is the purpose of creating the office of the commissioner in the first place. They will have informed his work; they will inform the way in which he presents the argument. I am absolutely sure that if he is going to take any evidence on how best he should produce the report on the Internet and put it on the website, the greatest experts in the world will be 12 year-olds. They will tell him exactly how to do it—how to make the links, do the graphics, get the sound, and so on.
We are intent on involving children and making sure that disabled children, who, in many cases, have a particular facility for hand-held technologies, will be able to access the report as much as possible.
Over the past few years, we have made real progress in how best to reach children, how to consult and listen to them, and how to articulate and amplify their voice. We issued 30,000 copies of the children's version of Every Child Matters and received 3,000 responses from children, so we have had good practice and good examples of how to do this. Your Lordships will ensure that we do not miss the point and I am sure that any commissioner worth his or her salt will do the same.
We would be wise to see it as an absolute priority that the commissioner should do that but not put it on the face of the Bill. We do not want to prescribe what the commissioner will do; we have confidence in him or her meeting the point with enthusiasm and ingenuity. We would expect the commissioner to produce at least one version for children or young people.
The problem of prescription is illustrated by Amendment No. 48, which is quite prescriptive in seeking to produce a version for children aged 12 and above. We have to ask: why 12? We could all produce a 12 year-old who is very different from every other 12 year-old. Some will have a reading age of seven, while others will have a reading age of 27. It is quite difficult pitching the age right. We could argue that what is needed is a report which would be available to those with the youngest reading age. I am thinking especially of looked-after children, for whom the reading facility is not always there.
I think we have to leave it to the commissioner's discretion and judgment to decide exactly what he needs to produce to get the key points of his actions and concerns over to children. I restate my conviction that he will do this.
The noble Baroness's point about minority languages is extremely important. I dispute the assertion that Welsh is a minority language—it is, of course, the language of heaven, so we have to be very careful how we describe it.
To be frank, we did not expect Amendment No. 45 to be linked to Amendments Nos. 50 and 51. As we will be having a very long debate on information sharing, I hope that the noble Baroness will not mind if we postpone that debate for now and refer to this amendment when we come to the later ones.
Amendments Nos. 47 and 49, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Byford, as well as the noble Baroness, Lady Walmsley, would provide that the commissioner report directly to Parliament, bypassing the Secretary of State. I believe that the noble Earl is the least sinister person in the House; I am sure that he does not mean me to interpret the amendments in any sinister fashion. I can assure him that we have no intention of compromising the independence of the commissioner. It is normal parliamentary procedure and applies to other annual reports which are a record of work programmes and work achieved. It does not amount to a means of censorship. Indeed, we will measure the report's independence by its robustness. Again, I refer to the Welsh commissioner, who has produced some very robust reports.
The noble Baroness is being very complimentary about the Welsh commissioner, but the Minister for Children, Margaret Hodge, was not so earlier this week, when she appeared before the Select Committee on Welsh Affairs. According to a report in the Western Mail, Mrs Hodge said it was disappointing that Mr Clarke, the commissioner, had produced only one report in three years. She furthermore confirmed that she would not extend Mr Clarke's powers to represent the rights of Welsh children on non-devolved issues. Again, that somewhat contradicts what we heard in this House in an earlier debate.
I believe that the commissioner's report was very robust. The Minister for Health and Social Services, Jane Hutt, says quite explicitly in her evidence that he has helped to inform public policy in Wales and is doing the job he is there to do in representing Welsh children. I will not reopen the debate we had on Wales at this point, if the noble Lord will forgive me. We will have opportunities to return to that later.
The fact that the commissioner's annual report goes to the Secretary of State is a matter of courtesy and practice. It is not an opportunity for alteration and delay. I am sure we would all agree that a Secretary of State would not dream of delaying or interfering with the nature of the Ofsted report, for example.
This annual report is a different animal from the others that the commissioner will be making available and putting on the website. Noble Lords have expressed a concern that the Secretary of State may sit on or delay a report. I do not believe that that would happen, and he certainly cannot change its contents, but there is nothing in the Bill to say that he must lay it before each House within any set period.
Clause 3(4) requires the commissioner to publish his report in general as soon as possible after the report is laid before Parliament. It is not unreasonable to accept a similar condition on the Secretary of State's duty under Clause 3(3)(b). If the Committee will permit, I will return with wording to that effect on Report. With that assurance, I hope that the noble Baroness will be able to withdraw her amendment.
I thank the Minister for her response. By withdrawing Amendment No. 31, I have to accept for the moment that the Government will not put the issue of appropriate material on the face of the Bill. However, I hope that they will undertake at least to include in the job description for the Children's Commissioner that information should be provided to the children in all accessible formats.
I accept the common sense of debating Amendment No. 45 later on. I will leave to the noble Earl, Lord Howe, the task of deciding what to do with the other two amendments. However, it may be all right for the Minister to promise on behalf of her Government that there is no sinister intent and that there would be no deliberate delay in publishing the commissioner's report. Certainly, when the Liberal Democrats come to power, I will make a similar promise on behalf of my own party. I will leave it to the noble Earl, Lord Howe, to say what he would do were the Conservatives ever to gain power again. With those comments, I beg leave to withdraw the amendment.
We debated this amendment earlier, and I want to thank noble Lords who spoke to it. I have a suggestion for the Minister. I thank her for her acceptance that all children will be included in all relevant stages in the Bill. I accept the reservations made by the noble Lord, Lord Laming, with regard to identifying each group, although I do not necessarily agree with him. The Minister told the noble Earl, Lord Listowel, that she would consider young people between the ages of 18 and 21 in relation to the amendments that he moved. That is equally relevant to disabled children between those ages, who would rather be called disabled young people.
I hope that this is a helpful suggestion. We tried to include "disabled" in subsection (3)(e). If the Minister cannot accept that, she may be willing to consider between now and the next stage including a new paragraph (f) reading "equality and opportunity", which would cover all of the discussions we had earlier on. I beg to move.
I am always grateful for suggestions and I will of course go away and consider the noble Baroness's point. The specific point that I made to the noble Earl related to the relationship between the commissioner and young people in care in the context of young people who are learning disabled.
The purpose of these amendments, which are supported by the vast majority of children's organisations, is to give the commissioner power, albeit within very strict limits and criteria, to conduct formal investigations were the commissioner and not the Secretary of State—as the Bill currently states—to decide that that is the logical and required route. Again, the commissioner rather than the Secretary of State would have the power to decide when reports of formal investigations should not be published—in exceptional circumstances, for example, when the identification of individual vulnerable children would not be in the best interests of those children.
The clause also places a requirement on the Secretary of State to lay copies of investigation reports before Parliament as soon as reasonably possible. As currently worded, Clause 4(1) allows the Secretary of State to direct the commissioner to undertake an inquiry into the case of an individual child. Thus, in both instances the essential independence of action that the commissioner's role requires—and, as we all know, the Government themselves want—is immediately undermined. Those supporting these amendments believe that the English commissioner must be able independently—not just at the behest of the Secretary of State—to undertake such investigations and be equipped with the necessary tools such as the right of access to documents, the power to enter institutions and meet children in private and summon witnesses. Currently, the Secretary of State not the commissioner decides, apparently unilaterally, when, how and if such a report should be published.
Nobody is suggesting that the commissioner's role should be almost exclusively dealing with individual complaints or conducting formal inquiries. Indeed, the restrictions on the circumstances in which such inquiries could be conducted are made very clear in the Bill. However, for the commissioner to be the independent champion for children that the Government have repeatedly stated that they want, these changes, which strengthen that vital independent role, are surely essential.
It has never been satisfactorily explained to me why these strengthened powers, which seem to be an integral part of the commissioner's role in Scotland, Wales and Northern Ireland, are not considered relevant to the English commissioner's responsibilities. I hope that the Minister will be able to enlighten us about what lies behind that. The amendments set out clear criteria for the exceptional occasions when the commissioner can use his or her formal powers. It is worth remembering, as I pointed out in my speech at Second Reading, that budget considerations will also be a major influence on the extent to which the commissioner uses his or her power. I hope that the Minister and, indeed, the Government will feel able to accept these important and essentially reasonable amendments. I beg to move.
I rise to speak to Amendment No. 36, which would alter the word "may" to "must". I accept that these amendments would ensure that the commissioner "could" order an investigation into an individual child, which we believe is right. Although I accept that that would normally go through the Director of Children's Services, it seems unfair that children in England will be denied the same rights as children in the devolved administrations. The question was raised at Second Reading when the Minister did not explain—and has not since, as far as I am aware, explained—why England will be dealt with in a different manner. Is it right that we should be approving a two-class system? Why are the Government making such a proposal? I urge the Minister to re-examine this important error. Do we really want to create a first and second class citizen for those only making the mistake to live in the wrong part of the UK? My noble friends Lord Howe, Lord Lucas, Lord Hanningfield and others have all referred to this.
In its submission to me, the Disability Rights Commission said that Amendments Nos. 36 and 37 would ensure that the commissioner could conduct an investigation of the case of an individual child. It also says:
"We consider this to be a basic aspect of an effective commissioner and we note that other children's commissioners have used such powers to good effect without letting any individual casework detract from their more strategic activities. In any case, individual cases can often lead to strategic and broader change long-term".
It is an important issue and I hope the Minister will be able to respond to it formally today. As I said earlier, although the numbers in England are obviously larger than in the devolved administrations, it does seem odd to us.
I move now to Amendments Nos. 69 and 70. It seems curious that a Bill which sets up the office of the Children's Commissioner does not confer on him the power to go to court in the interests of children, nor to be heard in court or tribunal hearings—the outcome of which may,—inter alia, affect the interests of children generally. In other words, I am slightly surprised at having to move this amendment.
If children are to have a champion—and that champion is to be tasked with placing them and their needs centre-stage—he must, we believe, have access to the courts. The very fact he has the right to bring proceedings or to intervene may ensure he never has to do so. If he is not given that right, almost certainly it will prove to have been an oversight.
With regard to Amendment No. 70, I have no legal training and am, therefore, not qualified to pontificate on the shortcomings of the law in relation to actions brought by children. However, I do know that it is possible that there are aspects of the law—particularly inheritance law in parts of the UK—which seem to act against the best interests of the child. A children's champion must be able to enter the lists in defence of his duty and to take up cudgels on the child's behalf where there is none other fit or willing to do so.
The Commissioner Campaign Co-ordinating Group has sent a strong lobby about the issue of the Children's Commissioner. I stress again, only in exceptional circumstances would they see the commissioner being asked to take on this particular role. The commissioner's overall purpose can be summarised as working with children to get things changed—I think we all agree with that. Achieving this will mostly rely on the commissioner being effective and an authoritative advocate and mediator, which we talked about earlier.
However, there will be some occasions when the circumstances of an individual child or group of children can only be improved through the commissioner making legal intervention. An example of that would be the child who has been on the local children protection register for more than a year without the allocated social worker. Pursuing a remedy through the courts would assist the individual child as well as others in similar circumstances—exactly the kind of strategic role I believe the Government envisaged. Courts and tribunals have a unique and essential function in reviewing the safeguarding of children's human rights. It is an absurd prospect to have a commissioner charged with improving children's rights who sometimes cannot use the legal proceedings to achieve that aim.
I would like briefly to support these amendments because of the experience of the Joint Committee on Human Rights when we visited the children's commissioners in Australia and New Zealand. They would not have achieved their very significant improvements without powers of this kind. That is all I need to say about that, other than to urge my noble friend again to look at the report on the Children's Commissioner by the Joint Committee.
I shall speak to Amendment No. 66, to which my name is put, in support of the noble Baroness, Lady Howe. I support this new clause because children must have—as they have been promised—a strong and independent commissioner. The independence of the commissioner has been stressed all through this Committee stage, as I think we all want a really independent commissioner. This means that the commissioner must have the power on his or her own initiative to undertake a formal investigation with appropriate powers when it seems necessary to do so.
I believe we are all in agreement that we do not want the commissioner to undertake a lot of time-consuming formal investigations. Subsection (1) of the new clause provides criteria to limit strictly the decision to undertake a formal investigation. This decision must be the commissioner's and not that of a Minister. It is not possible to reconcile the concept of an independent commissioner with the current provision in the Bill, which only allows the commissioner strong investigative powers when directed by the Secretary of State.
We appreciate the commissioner will be able to carry out general investigations into anything that comes within his or her general functions. However, under the current Part 1 of the Bill, in doing so the commissioner will have no more powers than a voluntary organisation, a journalist or an individual Peer. It does not help for Ministers of this Government to say that, of course, there will be consultation with the commissioner before a direction. That misses the point.
We all hope that the commissioner and the relevant Secretary of State will develop close and respectful relationships; that can only be in the children's interests. There is no room for ministerial direction in this relationship. We are establishing the commissioner not just to work with this Government but with other future governments who may not have the same concern for children's interests. It needs emphasising, perhaps, that the commissioner, as an unelected body, has no powers to overturn the decisions of elected government.
The commissioner's powers are those of review, investigation and reporting. In general, they are powers to influence, and influence comes with authority. That is why—if this new office is to be taken seriously and enabled to act as a powerful champion for children—the commissioner must have the right to use, on his or her own initiative, formal investigative powers.
I hope for some acknowledgement from the Government today that Part 1 of this welcome Bill needs looking at again to ensure that the commissioner is—and will be seen to be—independent, and that we are establishing something with sufficient powers to add value to the organisations working for children.
In its foreign policy and in international development, the UK has been prominent in promoting to other countries the need for strong, independent human rights institutions. Now we need to create one for England's children. The Government are to be warmly congratulated on initiating the creation of commissioners across the UK. However, it is our task here to ensure that Part 1 of the Bill leaves this House fulfilling the expectations of children and of all those, including myself, who have campaigned for so long for an independent children's champion.
I add my voice to those who have regretted the inclusion of subsection 2(6) prohibiting the commissioner from conducting an investigation into the case of an individual child. Perhaps the first point to note is that the Welsh commissioner does have this right, both under primary legislation and secondary regulations passed by the National Assembly. However, as I indicated earlier, judging by the Minister for Children, Margaret Hodge's remarks to the Welsh Affairs Committee on Monday, she does not think much of this right, or the Welsh commissioner's use of it. Again, I refer to this report in the Western Mail, where it states:
"Minister for Children Margaret Hodge yesterday launched an extraordinary attack on the work of the Wales' champion for the young Peter Clarke. The Minister accused Mr Clarke's office of getting 'bogged down' in individual cases and 'losing sight' of the 'bigger picture' on child welfare in Wales".
Towards the end of the report came the remarks that I quoted in my intervention, when she deplored the fact that Mr Clarke had produced only one report in three years and confirmed that she would not extend his powers to represent the rights of Welsh children on non-devolved issues. Again, I stress that that is somewhat different from what we have heard in this House.
We all know the danger of getting bogged down in individual casework. Indeed, the noble Baroness, Lady Howarth, referred to precisely that the other day. However, there are some now notorious cases with which we wish to heaven that someone outside the formal network had got to grips before those situations developed. We shall probably be told that it is not intended to be a function of the commissioner to look into the Victoria Climbie or Toni-Ann Byfield type of case, unless such cases give rise to a general issue, or the Secretary of State directs under Clause 4(1). I agree with the noble Baroness, Lady Howe of Idlicote, that it deprives the commissioner of independence of action if he can act only when directed by the Secretary of State. I should have thought that the commissioner was best placed to judge whether he should look into an individual case.
Such cases, as the noble Lord, Lord Laming, has told us, usually do have general implications. That was pointed out in a letter in Monday's edition of the Times. Elizabeth Ewart-James, the author of the letter, deserves to be quoted. She has frontline experience and is familiar with the realities of child care. She wrote:
"One of the causes of tragedies such as that of Toni-Anne Byfield, the little girl shot dead while in the care of Birmingham social services . . . is lack of staff. Local authorities should keep childcare teams fully staffed, even if managers and those in the plethora of peripheral posts have to stand in for limited periods.
"This would keep them in touch with what is happening on the front line, where I have been working for the most part. Freezing childcare posts to save money should not be permitted.
"There are highly paid managers spending their time promoting better communication, as was recommended after the Victoria Climbie inquiry, although there are dangerously few workers in the field.
"Society clearly wants vulnerable children protected and few people want to do this difficult and stressful job. Surely salaries should also go up".
Perhaps that last part is a bit of special pleading. However, the thing that I noted about that letter, which is worth noting, is the contrast between lack of staff in social services and the "plethora of peripheral posts", with highly paid managers concerned with communication and,
"dangerously few workers in the field".
That is the reality, even after the horrors revealed by successive inquiries, from Waterhouse onwards. It was the Waterhouse inquiry that shocked me, because I had been a Minister in the Welsh Office—although I am glad to say that I was not the responsible Minister over the relevant period examined by Sir Ronald Waterhouse. But I am still deeply shocked to this day that few people knew what was going on.
The Children's Commissioner cannot really be worthy of his title if he cannot dip his toe into the morass that we know exists, which he can do only by examining individual cases. I suspect that the purpose of the subsection is to stress where responsibility lies; namely, with the local authorities that provide social services, schooling, healthcare and the police, if they are called in, as well as the various inspectorates. I understand the Government's viewpoint, and that is all very well, provided that authorities are adequately staffed, trained and resourced, which they seldom are, as most of us know—including those on the Front Bench opposite.
We may well ask some very awkward questions about the Bill, and its entire purpose, if the subsection stands unchanged. Is it simply to provide a public relations facade—a "plethora of peripheral posts", as Elizabeth Ewart-James described them? If there is a grain of truth in that suggestion, the Bill is seriously missing the point. It cannot meet the real needs of the situation if the Children's Commissioner cannot gain direct experience of them. That would be a very harsh judgment on the Bill, but some highly respected children's organisations have made comments that tend towards that conclusion, although they are too gentlemanly or ladylike to say so pointedly.
The Bill's real target should be the prevention of the horrible tragedies that we have read about and which have horrified the public. To aim at anything short of that is really to miss the point. To prohibit the commissioner from examining individual cases in the blanket fashion in which the subsection does it makes him a tangential figure in tackling one of the major issues of our times. We must either eliminate the prohibition in this subsection or amend it in line with Amendment No. 36, which would allow the commissioner to examine the individual case if necessary.
I have listened to the debate with something of a sinking heart. The concerns that I have had throughout about the appointment of commissioners in general relate to the way in which we project on to them all the solutions to the ills that we have in social care.
I have been a director and assistant director of social services in some of the most difficult areas in London. I have been the chief executive of Childline and have therefore listened to thousands of children talking about the issues that are causing them difficulty. Now I am the deputy chair of CAFCASS.
The issues are very much the same year in and year out. There is, as the noble Lord said, a real shortage of social workers. It is a long historical position that we lost many social workers in many difficult years when social services were cut back significantly. I am a Cross-Bencher and have no political view on the matter, but in those difficult years we lost the professional impetus that gave people the understanding of how to deal with the issues. The commissioner can in no way put those things right unless he takes the overview, looks at local authorities across the board and, with the inspectorates such as the Commission for Social Care Inspection, raises his voice about where the difficulties are. He must identify the local authorities with no stars and where authorities are pushing ahead on behalf of children.
I have had the unfortunate experience of being subject to four child death inquiries, on the receiving end. People could say that that was something to do with my work but, if one chooses to work in really high-risk areas and is prepared to put one's shoulder to those ploughs, children do die. It is sometimes the responsibility of the workers; it is most often not. I wish that noble Lords would wait to hear the outcome of inquiries before making judgments about what happened. Sometimes we have to remind ourselves that parents, not the workers, kill children. That does not mean that I do not think we should hold workers to account. I myself have been held to account for things that I did not do so I know what that is like.
If the Minister accedes to some of these issues, I should like to be absolutely assured that the boundaries between the work of the commissioner and that of other bodies are clear. If there were to be an inquiry, what would the conflict be as regards the area child protection committees—to be called safeguarding boards—and a Part 8 review if that was proposed? Would the commissioner be dragged totally into child protection when my hope is that he or she will look at children across the board as we develop a much more pro-active, preventive role for him or her?
If the commissioner is to go to court, what would be the conflict between guardians and reporting officers? I am pleased to say that CAFCASS is improving daily and more children are being properly represented. We have to be very clear about such issues of detail. If we have experience from the devolved authorities, could we know what it is? Have they undertaken investigations? If they have, what was the outcome? I ask that even though I am not necessarily clear that that would translate to England. As I have said often enough in this debate, our situation is very different from those in the devolved authorities. I have run an organisation, and now work in an organisation, that works in all the countries within the UK and therefore I have some understanding of that.
That was an extremely pertinent interjection. However, does the noble Baroness, Lady Howarth, agree that it is really important to compare the boundaries? Where the devolved authorities' children's commissioners have carried out investigations—I am ignorant of that—what were the boundaries and how did they define them? Surely we need to know that before we can make a judgment. Does the noble Baroness agree that that is the case?
It is one of the issues. Those boundaries constitute the difficult areas in which we would find ourselves should the commissioner undertake the kind of investigation that we are discussing.
I am grateful for the contribution of the noble Baroness, Lady Howarth. The one thing on which I believe we in this Chamber would all agree is that we would like the post of children's commissioner to be successful. The debate that we had on earlier amendments revealed the extent of the range of issues that we hoped that the children's commissioner would be sensitive to and would be willing to pursue. They constitute an enormous range of issues.
Unlike many other countries that have children's commissioners, in this country there are in excess of 11 million children and young people. When the Committee considers the range of situations that we highlighted in our earlier discussions, let alone the ones that we did not have time to discuss, it is clear that the person who occupies the post of Children's Commissioner, if he or she is to be a champion for all children and young people, will have to take a very wide view of their role and their responsibilities.
I hope that there will never be another Victoria Climbie inquiry, partly because I hope that no child will suffer as Victoria did, but also because I hope that we can find other ways of discovering what went wrong in such cases. But if we are to do that, the responsibility of the Children's Commissioner to investigate matters of that kind, and to have the power to which the noble Baroness, Lady Howarth, referred, needs to be used with a great deal of discretion and care.
When I was the chief inspector of social services I was constantly requested by individuals to look into their grievances resulting from the decisions of courts, social workers, police officers, schools or whatever. Since I retired as chief inspector I have continued to receive those requests.
My fear is that we shall overwhelm the post of Children's Commissioner but, more than that, that we shall drag it back into a narrow role of being concerned with second-guessing the issues of other decision-making bodies. There is the mechanism in each of those bodies to review decisions that have been made. I believe that we could drag the post back into a narrow confine concerned with matters of child protection. Matters of child protection are, of course, immensely important but if we are to have a Children's Commissioner who will promote the well-being of all children and young people in our society, we must keep that vision before us and not allow ourselves to be dragged back into what is a very limited role for such a post. I should be grateful if the Minister would confirm that the hope with this Bill is that the role of the Children's Commissioner will be broad-based and that he or she will be responsible for promoting the well-being of all children and young people whatever their needs may be.
I should like to associate noble Lords on these Benches with Amendments Nos. 35, 36, 66, 69 and 70 to which I have also put my name. They seek to ensure that we have a commissioner who is both independent of government and equal with the existing commissioners in the other jurisdictions. It will cause enormous difficulty, not least in terms of the interaction between the new commissioner and the existing commissioners, if the new commissioner does not have the same level of powers.
I believe in listening to people who have done the job. I always listen with great respect to the noble Baroness, Lady Howarth. I have also recently listened to the commissioners themselves who are already in post. They were very critical about the lack of power to enter premises, to conduct individual investigations, to conduct wider investigations without the say-so of the Secretary of State and so on and on. It is quite clear that they believe that the power to conduct inquiries into individual cases is absolutely necessary, as they put it, as a last resort. They do not expect to be the first port of call in an individual case, but they consider that it is necessary for them to have that power as a last resort. Why are the Government so reluctant to give the new commissioner the same powers as the existing commissioners?
In my opinion this matter comes back to what I said on Second Reading; namely, that the Government are not prepared to give enough resources to the new commissioner. The Government have talked about the large number of children in England. I pointed out that if you look at the resources that are proposed for the new commissioner, each child would have only something like one-twelfth or one-fifteenth of the resource per child compared with the resource that is given to the commissioners in the other parts of the UK to deal with their children.
The difficulties of size could be addressed first of all by adequate resources being given in terms of financial support and in terms of staff, some of whom could act as assistant regional commissioners or assistant London commissioner, as we shall debate later in connection with amendments moved by the noble Baroness, Lady Thornton.
One way of addressing the matter of avoiding overwhelming the commissioner with work, as the noble Lord, Lord Laming, mentioned, is to take away the responsibility of the new commissioner for anything to do with Wales, Scotland and Northern Ireland. The commissioners in those countries are coping extremely well at the moment. The Scottish commissioner has not yet had the opportunity to demonstrate what she can do but certainly the Welsh and Northern Irish commissioners are doing very well indeed and want to be allowed to continue to get on with their job in their own jurisdictions in their own way. So there are ways of addressing the issue of size for the new English commissioner, as I like to think of the post, as opposed to UK commissioner. I do not accept the Government's claim that because England is so different and so much bigger they cannot give the same level of powers and independence to the new commissioner. The Minister is one of the most listening Ministers in this Government and we thank her for the response that she has already given at this very early stage in the Bill. I hope that she will be able to go back and use her considerable powers of persuasion with the powers that be above her pay grade to see what she can do to improve this part of the Bill.
I rise to add my support to Amendment No. 35. The experience in Wales shows that the commissioner is involved in listening and signposting but that he needs accurate intelligence to detect whether something is the tip of an iceberg or a one-off situation that warrants inquiry. I wonder whether the Minister can tell us whether, as the England/UK commissioner cannot undertake an inquiry, he will be obliged to call for an inquiry from another body if an issue appears suspect and warrants further investigation? Can she explain which body might then be enlisted and how it would be financed? How will work for children in Wales, who are primarily under non-devolved authorities, be affected by having two commissioners, one with an ability to investigate and one without? Will that restrict the ability of the Children's Commissioner for Wales to investigate within his current powers? He is independent of the Assembly and has undertaken an independent role.
The noble Baroness, Lady Howarth, has shone a spotlight on a very difficult situation, legal and social, that can develop if unlimited powers of inquiry are unleashed. This makes me reflect on what we mean by inquiry. In respect of understanding what is going on and of being seen to be a person and not an organisation, I think that the commissioner needs an ability to talk to individuals and to discover individual situations. That does not need the death of a child or a court case. He should have the power to find out how little Johnny came to miss school for three weeks because it will illustrate and provide a sharpening up of his general inquiry into the condition of children going to school. Without that, his inquiries are going to be statistical, not personal, and he will be seen as an apparatus, not as a person.
I am glad to see the noble Baroness nodding—not that noble Baroness but the noble Baroness, Lady Howarth. I shall not attempt to describe for the benefit of readers of Hansard the gesture that the other noble Baroness on the Front Bench has just made; it was entirely supportive, but it was not easy to interpret.
The point that I am trying to make is that the commissioner must know what goes on in individual cases if the statistics about what goes on in all cases are to be correctly interpreted. I hope that, at a later stage, some formulation will be discovered to do that without wheeling out the commissioner to act as some sort of quasi-judicial body.
I have not spoken previously in the debates on the Bill and I do so now only as a member of the Joint Committee on Human Rights. We have been looking at the Children Bill, and particularly at the powers of the Children's Commissioner and the powers that might apply to the Commission for Equality and Human Rights. Our report on that subject was published yesterday. It repays careful attention because we touch upon a number of issues that will arise on this amendment and others about, for example, the danger of swamping a commission with too many individual cases, rather than having a strategic look, the importance of independence and of powers, the kind of powers and so on. I would mark the document and urge those who are present and those beyond this Committee to study it very carefully because it is the fruits of our evidence.
We have not yet published our report on the Children Bill and the Children's Commissioner so what I am now saying, I am saying in an entirely personal capacity. However, I think it is true that, in the evidence that we took from Wales, Scotland and Northern Ireland, we were all struck by the lack of equal powers to be given to the English commissioner. That seemed to all of us to be unacceptable. I shall perhaps touch on that in some of the later amendments. We were also very troubled about the questions of independence that will arise in some later amendments.
The particular issue about individual complaints that has just been mentioned by my noble friend is quite difficult. I agree with her and with the noble Lord, Lord Elton, that plainly the individual child must be able to be taken into account in the general strategic work being done by the Children's Commissioner. If the prohibition into investigating an individual child is literally intended to rule out considering the cases of individual children, it would be deplorable. On the other, if what is meant—although it is not in any way expressed in the Bill—is that the commissioner is to concentrate strategically on issues of general importance to children and young people and should not be saddled with a vast caseload of individual complaints, then the report that we published yesterday on the more general issue of the Equality and Human Rights Commission bears reading upon that subject.
My noble friend Lady Walmsley was not present to hear this, but the Welsh, Northern Irish and Scottish commissioners gave evidence to us and one or two members of the committee asked whether England is different because of the size of the population and whether therefore there might be a case for a slightly different view. To my surprise they seemed to recognise that "one solution fits all" might not make perfect sense so far as complaints are concerned and that perhaps one would need to have some adjustment. I say that only because it is important that the Committee should know that that is the way in which the matter is being looked at. That is not to say that I do not entirely agree with what my noble friend has said; it is simply that the evidence has been taken by that committee and this report deals with one of the issues that has arisen.
This has been a very important debate and I am very grateful to all noble Lords who have given the Committee the benefit of their expertise and knowledge in examining these issues around the role of the commissioner. There is clearly a very strong measure of agreement that we want a powerful independent role representing the views and interests of all children and young people and an agreement in substance that children and young people should be able to seek redress effectively.
The Government's approach is that an investigatory or casework role would be unmanageable for the reasons that I gave in my Second Reading speech. We are a country of 11.7 million children and we believe that the proper role for the commissioner is to ensure that complaints procedures that already exist are accessible and effective in handling individual cases concerning children and young people. I am very grateful to the noble Lord, Lord Lester, for referring to the report published yesterday, which I have not yet had a chance to study. The comments that he made about commissions being swamped are important and I shall study the report.
In my Second Reading speech I said very clearly—I say it again to the noble Lord, Lord Lester—that the commissioner can talk to anybody or to any service provider. There are no constraints on who he talks to. Indeed, we would expect the commissioner to talk to individuals, organisations and representatives of organisations in the course of his work. But fundamentally our judgment is that the role of the commissioner is to complement existing children's services and not to replace them. We believe that investigations are often best carried out by local social services or other such bodies, as the noble Lord, Lord Laming, and the noble Baroness, Lady Howe, eloquently said. I shall not attempt to repeat their points, but I agree with them completely. It is important that we do not second guess the work of other agencies but that we give the commissioner the strategic role that we believe is so very important.
Amendments Nos. 35, 36 and 66 would allow the commissioner to investigate individual cases. We believe that that fundamentally changes the nature of the commissioner that we have set up and that to adopt this approach in England would run a risk of the commissioner being caught up in a large number of individual cases. We do not believe that that would enable the commissioner to fulfil the powerful strategic and influencing role that we wish him to play. As I said, that is by no means to dispute the need for satisfactory handling of individual cases.
As noble Lords indicated, different arrangements are in place in other parts of the United Kingdom. When the commissioners addressed the all-party group at which I was present, the Welsh commissioner said that he currently had 500 cases before him. I say to the noble Lord, Lord Roberts of Conwy, that I value and recognise the excellent work that the Welsh commissioner and his colleagues do. I was not there when my right honourable friend participated nor have I yet seen a transcript of what was said. However, I can say, because I have just checked, that she did not criticise the work of the Welsh commissioner for the quality of the report. I think it is important to say that in this place.
This is not about creating, as I think the noble Baroness, Lady Byford, described, a two-class system. We have a different approach. That is not to devalue or undervalue the work of any other commissioner; it is simply to say that we judge an alternative as more suited to our circumstances. I would wish that to be clear and to send my good wishes to the other commissions with which we are working.
I am grateful to the Minister for her comments. I know that we all want to achieve the ultimate goal of ensuring that all children are well represented and looked after by an independent commissioner. However, perhaps I may remind her that our amendment says that the commissioner "may" investigate, not that he or she has to investigate everything. It just provides them with the facility to do so. Current systems would deal with the sort of complaints that she thinks might be referred to the commissioner on an individual rather than strategic basis. But is that not true also in Wales, Scotland and Northern Ireland? What is different in the devolved administrations? I cannot see the logic of that argument.
I can see the logic in saying that there are more children in England; I have no difficulty with that. Later in our consideration of the Bill, perhaps we will consider the possibility of having more than one commissioner for England, as the noble Baroness, Lady Walmsley, was perhaps hinting. However, I leave that point for now. The immediate problem is that the Minister seems to be asking for a completely different system for England without a justification for the request other than numbers. The systems available to England are the same as those in Wales and Northern Ireland. That is why I raise the issue now.
I am grateful to the noble Baroness for raising that issue, which I hope to address later in my comments. I say immediately, however, that the number of children dealt with is an issue; I would not for one second pretend that it is not. This is also about a different approach. As I say, that is not to devalue or undervalue other approaches. Our approach is to say that it is critically important that we have a commissioner who is focused on all children; who looks at the outcomes that children themselves have identified as of great importance, and continues to refine and re-examine those; and who takes a strategic overview, looking at systemic failure.
The noble Lord, Lord Roberts, in raising not only the specific case of Toni-Ann Byfield but also the more general issue, described what he believes may be more systemic failure. The commissioner would unquestionably consider that. However, in our case, for a number of reasons, that would not entail looking at the individual cases. The first reason is the sheer volume, an issue to which I will return. Secondly, we believe that that is best done by looking at the way in which our current procedures and practices deal with individual cases. That is our approach. That is not to negate other approaches or to say that one approach is better than another. We have adopted and stand by that approach. We are absolutely clear that we believe in it.
I was taken with the comments of the noble Lord, Lord Laming, on Second Reading, when he said:
"We must hold on to the belief that the main task of the commissioner is to be an advocate for all children . . . The post should not be used to second guess the decisions of the authorities, not only because there are well established mechanisms in place for that but also because the commissioner post will be worthwhile only if it brings a new dimension to the well-being of millions of children and young people".—[Official Report, 30/3/04; col. 1224.]
I agree wholeheartedly with those comments.
It is vital that those who provide services to children are listening to children and young people and taking action. As I have said several times already to the Committee, I do not believe that investing more than is appropriate in this individual and office will help to develop the commissioner role in the most appropriate manner. The commissioner is not a substitute for everything else. It is not a substitute for government or processes and procedures that are already in place. It enhances and adds to the value of what we can do. I am categorically clear that our approach to England will work well.
Of course the Children's Commissioner can consider the case of individual children at the discretion of the Secretary of State, but he cannot do it at his own discretion. Would it not be an indication of his independence of stature and his quality if he were allowed that discretion which is now reserved to the Secretary of State?
This is where the noble Lord and I disagree. I may be a listening Minister, as the noble Baroness, Lady Walmsley, says, but I am absolutely clear about this. The role of the commissioner is as I have defined it; it is to enhance and to take the overview. We believe that there may be occasions when the Children's Commissioner is the most appropriate body to look at individual cases. The noble Lord, Lord Laming, did so well on behalf of all of us in investigating an individual case and not least in seeing what it told us about what needed to be done. This legislation is in part a result of that. We are very clear that there may be such circumstances. However, we are also clear that, as we have defined it, that is not the commissioner's key role and purpose.
"conduct an investigation of the case of an individual child", even with the say-so of the Secretary of State? I think that the Secretary of State's say-so is to do with general inquiries. Am I not correct about that?
What we have been clear about, and we shall debate the matter later, is that in the powers under Clause 5 the Secretary of State invests in the commissioner the ability to look at inquiries. That is important and we believe that that is an appropriate way to take the matter forward. It is completely understandable that noble Lords may take a different view, but the Government are clear where we want the commissioner to focus his attention and what we want him to do. As I have said, the situation is different from his colleagues in other parts of the United Kingdom and other parts of the world, but it is appropriate and is the right way forward. We are clear about that. I hope that I might continue on the basis that this is where the Government believe it is the most appropriate way forward. Bearing in mind the comments of the noble Lord, Lord Laming, and the noble Baroness, Lady Howe, I hope that noble Lords will feel able to withdraw their amendments and to reflect further on the matter.
Amendment No. 37 makes a different proposal, which is that the commissioner could only pursue individual cases as part of a wider investigation. There is a fine distinction to be made here. For reasons that I have already given, we do not believe that it is appropriate for the commissioner to take up individual cases, but we do expect the commissioner to investigate issues that come to his attention as a result of approaches from individual children and to want to talk to children about their experiences in pursuing such issues. The commissioner will be able to advise the Secretary of State regarding cases that he or she believes warrant an inquiry. These are all options that will be open to the commissioner. They are distinct in nature from investigating individual cases, but I hope that they illustrate the wide-ranging discretion that the commissioner should have.
Amendment No. 38, tabled by the noble Lord, Lord Lucas, makes related proposals that would enable the commissioner to be involved in legal action on behalf of a child when he considers that such action is needed to establish a point in law. I have already explained that the main focus of the commissioner's work is on influencing the way that our system works to achieve better outcomes for children and young people. As part of this, the commissioner should be able to look into complaints and advocacy systems, as well as the legal system, to ensure they are child friendly and work effectively for children.
However, it should remain the responsibility of existing bodies such as the Official Solicitor and CAFCASS to act on behalf of children. The commissioner will, of course—and this is important in addressing some of the concerns raised—participate as a witness in any court proceedings if called upon to do so. Again, both amendments could tie the commissioner up in casework to the detriment of the strategic role that we believe is most appropriate for us to set up. I therefore invite noble Lords to withdraw the amendments.
Amendments Nos. 69 and 70 also cover the commissioner's possible involvement in legal proceedings—in the case of Amendment No. 69, a power to bring or intervene in legal proceedings and in the case of Amendment No. 70, a power to provide assistance in relation to legal proceedings. Again, the question arises whether, in giving the commissioner such powers, we would cut across the avenues already open to children in need of legal representation. Representation and assistance for children seeking legal redress is already available through a next friend, a guardian ad litem or a "litigation friend". Alternatively, a child may itself instruct a solicitor if it is mature enough and this will be accepted by the court. In certain cases, such as applications for care and supervision orders, the court shall appoint a CAFCASS officer for the child. Giving a similar function to the commissioner would lead to duplication and confusion and, therefore, is not supported by the Government.
The commissioner may, of course, make children aware of the existence of these arrangements and comment on their effectiveness in meeting children's needs, if appropriate. It is important that the legal system works to support children. But, we believe that the systems are in place. The commissioner's role is to check that the systems do work and to advise government. That is the right role for the commissioner, rather than to take on the role in person.
Our approach is based on our judgment as to how the commissioner can be most effective in supporting children. We believe that these amendments would detract from that effectiveness. So, with those explanations of our intentions and with the over-arching view of all noble Lords that we want the commissioner to be effective in supporting children, I call upon noble Lords to withdraw their amendment.
Before the Minister sits down I have a brief question for clarification. She is persuasive in what she said about not having the power to investigate individual cases, but the noble Baroness talked about "systematic failure". Is it within the remit of the commissioner that he can investigate systematic failure? What counts as systematic failure? I will use an example from another field: a systematic failure might involve a hospital where there is an undue number of child deaths, or another hospital where issues of consent in relation to retained organs arise. Can the Minister give us an example or two of what might count as a systematic failure that would be within the remit of the commissioner to investigate?
I will try to give the right reverend Prelate some examples and perhaps follow that up in writing and place a copy of the correspondence in the Library of the House, because it is important that we understand the distinctions.
A commissioner, when he comes across incidents in children's lives, will have the power to look at anything that he wishes to, and talk to anybody he wants. To take an earlier example, the commissioner may see advertising that he believes tries to get children to do particular things, or may believe that we need to look at aspects of advertising. If, when looking at child healthcare issues, he is concerned that some children cannot get the advocacy that they need, or about whether particular aspects of healthcare are appropriate and relevant to children, he can investigate the matter, if he so wishes.
If the Secretary of State believes that an individual case should be investigated, he has the power to direct the commissioner to do so. To take the obvious example, had there been a Children's Commissioner at the time of the Victoria Climbie case, the Secretary of State would have directed the commissioner to investigate it. That perhaps gives Members of the Committee some examples of the differences between the different powers.
I understand perfectly why an individual child's case might not be suitable for the work of the Children's Commissioner if there are effective alternative remedies. However, I do not understand why it is necessary under Clause 4(1), which we shall discuss later, for the Secretary of State to direct the Children's Commissioner to hold an inquiry into the case of an individual child where it raises issues of relevance to other children. If we are to have a Children's Commissioner worthy of the name, I do not understand why that matter should not be within the complete discretion of the commissioner. That seems to be completely unnecessary state censorship.
It is certainly not state censorship. If the law provides that the Children's Commissioner shall not deal with individual cases, we cannot then say that he can, if he so wishes, at his own discretion. We are clear that the role of the commissioner is strategic overview. He has an over-arching role to look at what happens systemically in support for children and to investigate, in conversations with children—taking his power from children—the issues that concern children and young people. He must look across a range of areas of public and other life to ensure that children are well cared for and that the systems respond. Where it is clear to him from his correspondence and elsewhere that that is not happening, his role is to carry out an investigation. That is absolutely clear.
We recognise that there will be exceptional circumstances, such as the appalling tragedy of Victoria Climbie, where it is appropriate for an investigation to take place at the highest possible level to establish the lessons that must be learnt, not just from the individual tragedy, but for the whole system. Much that we had to learn from the recommendations of the noble Lord, Lord Laming, is invested in the legislation and, more importantly, in the Green Paper Every Child Matters. We have set up the opportunity, where it is clear that that will happen, for it to happen. To make that work in law, it is important that there be a direction from the Secretary of State. The Bill cannot provide that the commissioner may not look at individual cases but can do so sometimes.
We have made clear the reality of the relationship. I have no doubt that, if the Children's Commissioner felt that certain cases needed to be investigated, he would be in dialogue with the Secretary of State about that. Regardless of the concerns of Members of the Committee that one Secretary of State might be receptive and another might not, these are matters of huge public interest that do not simply rest on the deaths of Secretaries of State. The Victoria Climbie case did not rest on such a factor; it shocked many noble Lords and much of the population. There was a response to that. There must be clarity about where the power comes from, but we would expect the Secretary of State and the commissioner to be in dialogue.
I am sorry to ask the same question in a slightly different way, but I am still not clear. I understand perfectly the argument and sympathise with it. However, I do not understand why one could not amend the law so that, instead of absolute prohibition of investigations of individual cases, it gave that as the starting point and provided the exception in Clause 4(1)—but instead of leaving the Whitehall official to decide, it would be up to the Children's Commissioner. The amendment would say,
"except where in the case of an individual child there are issues of relevance to other children which, in the opinion of the Children's Commissioner, warrant investigation".
I do not understand why we must control the Children's Commissioner in that respect, if we are to have one that is worth having at all. Why would the Minister be a better judge of such matters than the Children's Commissioner?
I wish to ask about the residence of the power. One of the things that concern me greatly about commissioners generally is accountability. When there is a decision to have an inquiry of the standing that the noble Lord, Lord Laming, was involved in, I have heard from him often that it ground him to a halt on everything else for a year. I assume that we would not want a commissioner to be personally undertaking the kind of investigation that took him out for a year. That kind of investigation takes place after much deliberation, not just by one person—the Secretary of State—but by a whole number of people taking advice. Who would decide with the commissioner how they would take this work forward if they are going to have these kinds of powers? I am simply probing where the boundaries are. I think it is absolutely unacceptable that any individual would have total power to decide to investigate something of the significance of the Climbie inquiry, without being accountable somewhere else in the system. I am totally unclear as to where that accountability is, certainly in the Welsh system—I am not as familiar with the others—and I would need to be clear if that were so in the English system. Otherwise it is power without accountability.
I agree with everything the noble Baroness, Lady Howarth of Breckland, has said, and the accountability in this case rests with the Secretary of State. I understand what the noble Lord, Lord Lester of Herne Hill, is trying to do and he is probing very well in determining the independence and the importance of the commissioner. We are clear that we do not wish to see a commissioner who becomes the court of last resort for every case, the place that everybody goes to because they have the discretion, instead of making sure that the system is working effectively. It is absolutely clear to us that the Secretary of State, on behalf of the Government and accountable to Parliament, must be that place of last resort in working with the commissioner. It is critical for this new role that there is clarity about what it is and that we set this position up in a way that is appropriate to the role that the commissioner will be undertaking on behalf of children.
I have a neutral and administrative question to ask. In this and other debates, the noble Baroness has promised to write to individual Members of the Committee and place copies in the Library. It would be immensely helpful if they could actually be copied direct to noble Lords who have taken part in the debate as well.
I shall be delighted to do that. I am very happy to send copies of all letters to all Peers who have taken part in the debate.
I have not intervened before in the general discussion because I was not entirely certain that I was entitled to do so. I have listened to everything that has been said and there clearly are differences of views. I want to end on two points. First, the whole aim of our amendment was to remove the powers, exclusive to Secretaries of State, to direct either a form of investigation or undertake an individual investigation, and transfer them to the commissioner, as we believe is the case with the other commissioners. The reason for that was to strengthen the independence of the English commissioner, and to have parity between all of the commissioners.
Secondly, it appears that 11 million children are going to have fewer rights than children in the other groupings. I find that very hard to understand. Earlier today we discussed rights and the Minister gave an undertaking that she would look at the whole process of whether rights could be written more firmly on the face of the Bill.
In conclusion, because I know we are short of time, I shall withdraw the amendment at this stage, but there is a great deal to think about between now and Report in terms of deciding whether one would wish to return to the issue. I beg leave to withdraw the amendment.
This amendment relates closely to Amendment No. 30, which would have ensured that the equal opportunity route was followed, as is required of other children's commissioners. Regardless of whether that amendment was accepted or not, there should still be a duty on the commissioner to report on equal opportunities issues that have come to his or her attention or on which he or she has taken action. That is the purpose of the amendment. I beg to move.
I have put my name to the amendment. I agree with the noble Baroness, Lady Howe of Idlicote, that, even if, regrettably, the Government resist our proposal to put the promotion of equality of opportunity into the objectives of the Children's Commissioner, the public—minority groups in particular—will want to know, at least, what action the commissioner has taken during the year to promote equality of opportunity. It would not be unreasonable to put such an obligation on the commissioner into the Bill.
Such a provision would be consistent with the positive equality duties set out in Article 2 of the United Nations Convention on the Rights of the Child and with the Government's avowed commitment to a new, inclusive society. The precedents for such specific cross-cutting equality duties on statutory bodies include the equality duties imposed on the Learning and Skills Council and the Greater London Authority. Future disability legislation will impose duties on all public authorities to exercise their functions in a way that avoids adverse effects on, for example, disabled children and positively promotes disability equality. The same would apply to other minority groups.
Similar duties are already in place for race, but no equivalent duties are planned for gender, sexual orientation or religion. Nor are there to be equivalent duties to promote equality regardless of family status, as would apply, for example, to looked-after children or children from one-parent families. It makes sense to have a broad-based duty on the commissioner to report on what he or she has done, so that the public could know what he or she has done to address issues of multiple discrimination and challenge the systems that create the discrimination that operates against such people.
My noble friend Lord Howe's name is attached to this amendment. As I have spoken at length on previous amendments, I shall not go through what I said again. I just wondered whether my suggestion of paragraph (f) might be relevant here. Perhaps the Minister will bear that in mind. I support the amendment.
I already have.
That is what I am saying. Surely, if,
"the Children's Commissioner must have regard to the United Nations Convention on the Rights of the Child", reference would have to be made to that convention in any report that he made. Is equality not very much covered in that convention?
Members of the Committee are relentless in their pursuit of paragraphs (f) and (g). What can I say, except that we will look closely at their suggestions? Two issues are raised by this debate. I am very grateful to the noble Baroness: I shall take my cue from her. I shall not rehearse our commitment to disability and equal opportunities either. We had a very good debate earlier. I shall go straight to the substance.
As regards reporting back on equality of opportunity, because the commissioner is concerned with outcomes and is doing his work within the framework of the UN convention, he will be bound to report on what he has achieved in terms of equality of opportunity. We know that outcomes are not equal for all children. Children's situations, circumstances, attitudes and ability to access information differ. It would be extremely unlikely that the commissioner would not report on how that fundamental objective was being achieved.
The annual report will be an opportunity for the commissioner to tell us what he has achieved, what he has recommended and how those recommendations have been followed through. That will be his most important weapon in the armoury of public—I shall not use the term "shame"—exposure. We expect that to be as robust and clear as possible in terms of his achievements and other people's responses or, indeed, failure to respond.
The commissioner may well decide—we would think that it is very unlikely that he would not decide—to report on equality of opportunity in his annual report and to follow through on all his actions and the responses to them. For the reasons that we are saying consistently, we would not want to prescribe too much in the Bill. With those assurances, I hope the noble Baroness will withdraw the amendment.
moved Amendment No. 50:
After Clause 3, insert the following new clause—
(1) The Children's Commissioner has, subject to the following provisions of this Part, the following specific functions in respect of the sharing of information—
(a) to draw up and disseminate to the persons and bodies to whom sections 8 and 23 apply guidance as to good practice in sharing information;
(b) to draw up and disseminate to the persons and bodies to whom sections 8 and 23 apply guidance as to the circumstances in which it is appropriate for those persons and bodies to share information;
(c) to maintain under review the guidance set out at paragraphs (a) and (b).
(2) In drawing up the guidance set out at subsection (1)(a) and (b), and in reviewing such guidance under subsection (1)(c), the Children's Commissioner shall consult with—
(a) the Secretary of State;
(b) the Information Commissioner;
(c) such other interested persons and bodies with statutory responsibility for children as the Children's Commissioner sees fit.
(4) In this section, "information" has the same meaning as in section 8 and section 23."
I apologise to the Committee that I have been unable to be present so far due to other commitments, but I have been following the debates closely. In a sense, Amendment Nos. 50 and 51 are a precursor to the somewhat more substantial debates that we shall have on the vexed issue of Clause 8. At this point, I do not want to spend a great deal of time on this issue. I imagine that various Members of the Committee will want to talk about Clause 8 at considerable length. The purpose of these amendments is to place primary responsibility for the drawing up and dissemination of guidance on information sharing with the Children's Commissioner. Discussions so far on the many aspects of the post of Children's Commissioner have centred on the extent to which the commissioner will be viewed as the independent voice for children, whose first and last responsibility is for children and who therefore in practice would be best placed to issue guidance on what is perhaps the most difficult element in the whole Bill. Indeed, the sharing of information between professionals is one of the most difficult issues in childcare.
Noble Lords will know that the issue of information sharing between professionals in this area has come up time and again. It is raised every time a review is held into a case where a child has died. Over the past 30 years people have sought a solution to the problem of how to get professionals to talk to each other effectively. The noble Baroness, Lady David, referred to this in her speech at Second Reading. Many noble Lords are worried about the provisions in Clause 8 on information sharing, given how starkly they are set out.
I believe that there is the potential for a false assumption to be made; that is, that the debate on information sharing will be conducted by two opposing forces. One force will comprise those of us who may be characterised as information anoraks versus those who care about children. That is a false and harmful distinction. It is to the credit of those whose primary knowledge of and responsibility for data holding and data transfer that they have recognised that the lengthy and no doubt eloquent arguments which will be put by the Minister about the need to ensure that such information sharing as takes place—and we all agree that it should do so—is done only in the best interests of children.
Therefore the provisions of these amendments ensure that the responsibility for issuing guidance about this very difficult and tense operation lies with the Secretary of State and the Children's Commissioner working with the Information Commissioner. By placing responsibility with those people, it will be possible to make the most difficult of balanced judgments about what is in the best interests of children, thus achieving the balance required between the need for privacy and the need to share information that will protect children.
I believe that the amendment also covers a particular matter to which it would be helpful to draw the attention of the Committee. I refer to the power of the Children's Commission to review and update guidance on information sharing. The world of information technology changes a great deal faster than do the workings of legislation. We believe that this would be an important and helpful contribution to what is perhaps one of the most vexed issues in social care. The provision will enable best practice to be continually updated and disseminated to practitioners.
Perhaps this is a slightly premature debate since it is taking place in advance of our consideration of what may happen with Clause 8, but we believe that there is a good case to be made for ensuring that responsibility in this area lies with the Children's Commissioner. I beg to move.
I rise to support the amendment moved by the noble Baroness, Lady Barker, to which I have added my name. I need not add a great deal to the thinking and purposes that underline the amendment. As the noble Baroness said, the amendment foreshadows our debates on Clause 8 that we shall come to later in Committee. The Minister is in no doubt about the considerable misgivings that I and others have about that proposal in its current form. As I say, we will come to that in due course. For the moment, and given the contribution of the noble Baroness, Lady Barker, I shall focus on only one issue of relevance.
I believe that the critical point here is that a distinction needs to be drawn between the concepts of information-sharing and data-sharing. As I have understood the report of the noble Lord, Lord Laming, into the tragedy of Victoria Climbie, there are two different but related problems to be addressed. There is the issue of what sort of mechanisms should be put in place to ensure appropriate recording of information and data about children, partly as a means of highlighting causes for concern at their earliest opportunity but also to ensure that wider, substantive issues in respect of children's interests and welfare are very much to the fore. In fact, the Minister was forceful in emphasising this in respect of an earlier amendment.
In this context, the noble Lord, Lord Laming, advanced recommendation 17 in his report; namely:
"The Government should actively explore the benefit to children of setting up and operating a national children's database on all children under the age of 16. A feasibility study should be a prelude to a pilot study to explore its usefulness in strengthening the safeguards for children".
The Government's response to this is elucidated in Every Child Matters: Next Steps at paragraph 2.37, which states:
"The Children Bill provides the framework for the establishment of information of information sharing systems to ensure that practitioners are able to provide children and their families with the help and support they need at the earliest opportunity".
Indeed, this is endorsed by the Minister in her letter of 29th April, where she states:
"The information databases we are proposing under Clause 8 represent an important tool to facilitate information sharing".
In effect, this is a practical or technological problem, to which Clause 8 is the Government's proposed solution. However, there is the no less demanding problem of how to ensure that the sharing of information—of actually talking and communicating—is to be established among the various bodies, agencies and persons concerned with children's welfare.
In turn, this is a cultural problem. The BMA observed in the tragic case of Victoria Climbie:
"It was not that the professionals involved were unable to exchange information; it was that they didn't".
It is salutary to reflect that very many of the recommendations in the report of the noble Lord, Lord Laming, allude to this with varying degrees of emphasis. Indeed, in a speech in January of last year he observed:
"I make clear in the report why I conclude that the wellbeing and safety of children cannot be achieved by one agency acting alone, but will continue to depend upon each of the key agencies fulfilling their distinctive and separate duties. More exhortation that services should work better together manifestly is not enough. Actual change is required".
Although in the main the Bill is curiously silent on the point, the Government are equally aware of the requirement to address this, having stated in Every Child Matters:
"We want to value the specific skills that people from different professional backgrounds bring, and we also want to break down the professional barriers that inhibit joint working".
The amendment seeks to address the point. In giving the commissioner an overarching statutory duty to issue guidance as to best practice in respect of information-sharing, all those involved in the welfare of our children will be under no illusions as to the necessity of communicating with each other and talking amongst themselves as an essential component of their duties to offer children protection.
I acknowledge that, up to a point, the Government are seeking to attend to this via the expedient of the statutory guidance on co-operation under Clause 6 and other parts of the Bill. None the less, it strikes me that, without this amendment or something like it, there is a very real risk that any data generated by Clause 8 may not be worth very much. If the issue of how to change the current culture of an apparent absence of information-sharing is not addressed—and we should bear in mind that the tragedies of Soham and Toni-Ann Byfield seem to have been afflicted with the same sort of malaise—it will be more certain that we have to endure further tragedies. The mere existence of the database proposed in Clause 8—the Government have identified it correctly as a "framework"—does not address the dilemma.
It is perhaps a little presumptuous, but I conclude by suggesting that the amendment has the best chance of satisfying an earnestly felt desire expressed by the noble Lord, Lord Laming, who said:
"I hope that never again will any senior manager or member be able to say, 'But I did not know. Nobody told me'".
I am very grateful to the noble Baroness, Lady Barker, and the noble Earl, Lord Northesk, for this very thoughtful amendment. A great deal of thought has gone into the argument in favour of Amendments Nos. 50 and 51.
There is just one point of concern that I would like to raise. It is very important that a Children's Commissioner is seen as an advocate for children and young people and is able to make strong representations on all issues that affect their lives. Clearly, the exchange of information is a very important part of that. I hope that a Children's Commissioner will take a great deal of interest in this because, as has been said, all services for children in future will continue to depend upon inter-agency co-operation and the free exchange of information across the agencies.
My concern is the danger of implicating the commissioner in line accountability. It is very important that the commissioner's role as an advocate is strengthened as far as possible and is not compromised in any way by taking on a line accountability. It is very important that we have clarity of line accountability in these important matters. Therefore, the role of the Secretary of State in particular and the Government in general in making sure that the guidance applies consistently across all legislation should be followed with clear accountability to the Government. That is the only concern I want to express.
As noble Lords have indicated, this, in part, pre-empts a discussion that I know we will have on Clause 8, when I will be in extremist listening mode for all the reasons I have discussed with noble Lords outside the Chamber. I am looking forward to that debate because of the contributions that your Lordships will be making to it. So I would describe this not as a vexed issue, as the noble Baroness, Lady Barker, did, but an important issue.
I agree with practically everything that the noble Earl, Lord Northesk, said so eloquently about the differences between the tools to facilitate the pen-and-paper opportunity that new technology can give us and the cultural changes. Much of the cultural change will take place beyond and outside the legislation. The noble Earl is right about the duty to co-operate being a fundamental part of that, but training, workforce issues, the development of people's skills and talents and ensuring the accountability framework rest, in many ways, beyond and outside the legislation. I would not want any noble Lord to feel that those were not critical issues, as the noble Earl indicated, for indeed they are. However, perhaps they do not all need to be handled within the framework of legislation.
As the noble Baroness and the noble Earl indicated, the purpose behind the amendment is to give the commissioner responsibility for disseminating and drawing up the guidance to be issued around information-sharing.
Of course we need to ensure that there is adequate guidance on information-sharing. The guidance will be going to many of our statutory bodies. We are clear that guidance to practitioners under Clauses 6 and 7 need to provide more clarity about the circumstances under which information may be shared to promote children's welfare, safety and well-being. There will of course needs to be comprehensive guidance on the operation of the databases which we propose to set up under Clause 8.
I agree with the noble Lord, Lord Laming, on the implications that this has for the Children's Commissioner. I will say once more, although I know that noble Lords all agree, that the focus of the commissioner is on children—listening to children, representing children and hearing their views. His power comes from them and his focus must be on them. I, too, would worry about the implications of accountability if the commissioner were issuing guidance to statutory bodies such as the police, the Probation Service and social services. I do not believe that that is an appropriate role.
As I said earlier, it is critical that we do not move away from the role that the Government and other agencies have to play. We must do our part. The recommendations of the Climbie inquiry and the work of the Children and Young People's unit vested in the Green Paper must be the responsibility of us all. This is the role of government. However, it is also a legitimate interest for the commissioner who well may have views and wish to give advice on the drawing up and dissemination of guidance, which he is permitted to do under Clause 2. Indeed, the Government may well consult the commissioner, especially about the preparation of guidance and its distribution.
We have not yet appointed the commissioner, who may bring extremely valuable expertise and be able to assist us. There is nothing to stop the commissioner taking part in that discussion. I would expect that we would wish to discuss that with the commissioner, whose views will be welcome. However, I do not think that it is appropriate to specify such a duty in legislation. On that basis, I hope that Committee Members will feel able to withdraw their amendments and I look forward to discussions about Clause 8.
That has been a useful debate, not least because it has clarified for some of us the extent to which the commissioner can be involved in the process of determining how and what information is shared. The stark framework that is Clause 8 has set up any number of potential fears among those who have read it. Some of us feared that, as a result of Clause 8, professional shall speak unto professional and that the interests of children would not be properly taken into account. That was the rationale for trying to weave the commissioner more closely into the workings of the clause.
I hear what the noble Lord, Lord Laming, says about accountability. I have followed the rest of the Committee's discussions on the 101 things for which the commissioner should be responsible. No doubt, when the commissioner is appointed, the exact extent to which he is involved in the setting of strategic guidance on a whole number of fronts will be a matter of urgency. This is one of the most important areas in which his or her involvement will be needed. Who but someone who will spend his entire time listening to the concerns of children would be better placed to know how children feel about professionals having information about them and how systems should therefore be drawn up and operated?
These amendments have received as much support from the Government as I thought they would. None the less, this has been a useful and instructive discussion and I beg leave to withdraw the amendment.
In Amendment No. 52, my noble friend is asking the Government whether the Children's Commissioner who considers the matter and raises issues of general guidance to children may hold an inquiry into that matter. However, as we have sat through rather prolonged debates already, I suspect that the answer is "no" unless he is directed by the Government. The Minister may tell me differently: I live in hope.
Amendment No. 53 would leave out "direct" and insert "request". As currently worded, Clause 4(1), permits the Secretary of State to direct the commissioner to undertake an enquiry into the case of an individual child. This is a fundamental violation of independence—as we have said earlier, and I have argued it until I am blue. I am wearing blue, so I shall still keep arguing.
The commissioner must have the power to undertake formal investigations in exceptional circumstances. I repeat what I said earlier: this is not something we expect to happen on a daily basis, it will be exceptional. However, we believe—as has just been said in the previous amendments—that the independence of that commissioner is a key consideration. This is where the Government and ourselves, along with and other noble Lords around the Chamber, disagree.
The commissioner should have these powers in exceptional circumstances. He or she should be equipped with the necessary tools, and also the right of access to documents, the power to enter institutions and to meet children in private, as well as the right to summon witnesses. The Bill currently gives the commissioner such powers only when she or he is carrying out an inquiry directed by the Secretary of State. It will be the Secretary of State and not the commissioner who determines the terms of reference for such an investigation. It will be the Secretary of State—again, not the commissioner—who determines if, when and how the report from such an inquiry will be published.
Ministers have stated categorically that the commissioner will be an independent champion for children. I do not think I have repeated myself so much as I have today, but those of us who disagree with the Minister still do not think that he or she is an independent champion as the Bill currently stands. We believe it is difficult to reconcile the Government's stated aims for the commissioner with the reality of the Bill. We whole-heartedly agree that the commissioner must not be swamped with individual complaints. In my earlier amendment, I said I foresee everything going to the director locally, and not coming straight to the commissioner. Only in exceptional circumstances would it come to the commissioner because we do not want him to be swamped. We are all agreed on that.
England's population of children is, as we have said, 11 million—significantly higher than other countries within the UK. Without safeguards, the potential is indeed here for the commissioner to lose her or his strategic role. These safeguards must be written into legislation, rather than handing over the decision-making powers to the Minister. The current provisions suggest that the Government do not believe the commissioner will act in the best interests of children without close ministerial supervision. The noble Baroness may say, "I am not sure", but she will have a chance to follow me. It is clear to those of us who have read the Bill that that is how we see it being interpreted and why we have had such a long late-morning and afternoon session on these very important issues.
I understand that the Commissioner for Children and Young People in Scotland said, in evidence to the Joint Committee on Human Rights on
Also, before I formally move these amendments, what contact has the Minister had with the Children's Rights Alliance? Has that organisation raised some of the concerns that I have raised this afternoon with her directly? If it has, and the matter has been taken further than I understand, then the Minister may be able to bring me up to date regarding pur original conversations.
I cannot stress strongly enough our belief that the Children's Commissioner for England should be independent—though, clearly as the Minister stated earlier, I accept that he or she will only be used in exceptional circumstances. I beg to move.
I added my name to this amendment and shall just say a few brief words because I know my noble friend Lord Lester of Herne Hill wants also to contribute. I absolutely concur with everything the noble Baroness, Lady Byford, has said in moving this amendment, but I would add this question: What if the Children's Commissioner, when directed by the Secretary of State to conduct an inquiry, does not think that the issue is as important as the Secretary of State thinks it is? Perhaps because of other inquiries that the commissioner has made, he may take that view—or perhaps, given the enormous amount of time that such inquiries take, he or she may feel that he or she does not have the time or resources adequately to carry out such an inquiry. He or she may believe that the Secretary of State's reasons for directing him or her to conduct an inquiry were political or electoral in their nature, rather than in the best interests of children. Far be it from me to suggest that any Secretary of State of this Government might do any such thing, but we cannot say what might happen in future—and we are laying down legislation for the long term.
I ask those questions of the Minister, and perhaps she will consider them when she responds.
In speaking to this group of amendments, I support Amendment No. 52 very warmly, as it is fundamental to the independence of the Children's Commissioner. It is in fact echoed by Amendment No. 17, which I moved earlier. I was reassured when, at col. 1059 of Tuesday's Hansard, my noble friend the Minister said:
"As regards Amendment No. 17 . . . the commissioner will have the ability to review any issue that relates to the views and interests of children".—[Official Report, 4/5/04; col. 1059.]
If the commissioner can review any issue of his own volition, surely by the same token he must be able to hold an inquiry into that matter.
However, as regards Amendment No. 53, I believe that the Bill has got it right. It is quite normal in statutes that set up commissioners for the Secretary of State to have the power to direct. In a way, it is the counterpart of the commissioner having the independence to follow his own inquiry for the Secretary of State, who is the representative of the elected government, also to be able to direct the commissioner. There may be occasions when the commissioner's priorities need adjustment, and it would be right for the Government to retain the power to direct as long as the commissioner also has the right to conduct his own independent inquiry.
It is just 30 years ago, almost to the day, since I left the Bar to work for a Labour Government in creating the Equal Opportunities Commission and the Commission for Racial Equality. I am delighted to say what I am about to say in the presence of the first—and for my money the best—deputy chair of the EOC, the noble Baroness, Lady Howe of Idlicote.
I do not understand why the Government have got themselves into such a mess in this Bill, as I shall briefly explain in relation to Clause 4. When we set up the two commissions—the EOC and the CRE—we empowered each of them to carry out two kinds of inquiry. The first was a coercive inquiry that we called a "belief investigation", which meant that when the commission believed that a body had acted unlawfully, it could inquire into that and do nasty things by way of enforcement. We gave the commissions subpoena powers—the power to have access to information and to summon witnesses, all subject to judicial control and supervision. But we also empowered the commissions to carry out what were called "general investigations" into matters of public interest within the objects of the commissions—equal opportunity and the elimination of discrimination. For that purpose, we did not give them subpoena powers unless the Secretary of State intervened to allow them to do so, because we were troubled about creating star chambers that could use their powers coercively.
What we did not do was to hobble the two commissions as Clause 4 does. I simply do not understand why we are to have the weakest commissioner in the United Kingdom serving the children and young people of England. That baffles description. As we have debated already, Clause 4 places the commissioner entirely under the control of the Secretary of State in deciding whether he can carry out one of these inquiries at all. That seems wholly inappropriate and saps the independence of the commissioner.
Secondly, the way in which the reports are handled—to which we shall come later—are, again, under the firm control of the Secretary of State. Thirdly, there is no free-standing power—the point of the amendment tabled by the noble Lord, Lord Lucas, with which I wholly agree—to carry out what I would call a general investigation not into anything under the sun, but a matter raising issues of general relevance to children. In carrying out that inquiry, please note that the way in which the Bill—this wretched Bill, I am sorry to say, in respect of its drafting—is drafted, it creates such a powerless and quasi-independent commissioner, weaker, as I said, than any of the others, that the only access to information is via the Local Government Act 1972, which again places the matter entirely under the Secretary of State's control.
I have no particular objection to being careful about subpoena powers—I understand the need for that. But I cannot understand why the Children's Commissioner will not even—unless the Minister accepts the amendment, or something like it, as I hope she will—have the power to carry out a general investigation without any coercive powers or enforcement into matters of public interest affecting children. If the commissioner cannot even have that power, are we not disappointing all the expectations raised by the White Paper and the build-up to the Bill? So I hope that the amendment tabled by the noble Lord, Lord Lucas, so powerfully moved by the noble Baroness, Lady Byford, will be acceptable to the Minister.
I do not want to take up the time of the Committee, because I have already—much less effectively, I may say, than the noble Baroness, Lady Byford—gone through the matter, but also because the whole situation has been so brilliantly explained by the noble Lord, Lord Lester, who I thank for his kind comments. However, this takes me back to another power that we had at the EOC. The great point is that the provision gave the commission, not the Secretary of State, power to back an individual case if it raised issues of relevance to the wider concerns of children.
That point is not quite the same as that raised by the noble Lord, Lord Lester, although I may be wrong. That was achieved by giving whatever support we could and, hopefully, getting others such as the TUC financially to back the case that we were pursuing. So I still consider the whole issue to be of enormous importance to independence and to the rights of children throughout the UK.
As the noble Baroness, Lady Byford, said, this group of amendments raises questions that we have already had some opportunity to debate. I am mindful of the fact that noble Baroness is wearing blue and feels that she is talking blue; I notice that we on the Front Benches are all in blue; I also notice who is in the deepest blue, who may feel that she has said many things many times, but there we are. It is the nature of Front Benchers that we end up in the same costumes, in one guise or another.
I agree with the compliments of the noble Lord, Lord Lester, paid to the noble Baroness, Lady Howe of Idlicote, but because we disagree does not mean that the Bill is a mess or wretched in any way—it means that we disagree. Although the noble Lord may feel that it is a mess from his perspective, from my perspective it is absolutely clear and the distinctions are clear. I want to make that point because at the end, we all agree that we will appoint a children's commissioner and the descriptions that we give to that individual in our deliberations matter, because the individual must at some point take office with our wholehearted support. I read in the newspapers what we have already described the role as, and it is important that I make that point—on a personal level, I hasten to add.
We have already discussed some of these arguments concerning the issues of individual cases. I have tried to be clear about the context that we want for the commissioner and the strategic role that we want him to play with the function of inquiry and associated powers only for those cases of wider import where the Secretary of State thinks that an inquiry is appropriate and looks to the commissioner to carry it out.
As I have already said, there is an issue regarding the number of demands placed on the commissioner, and the focus that we have for him of listening to the views of children, being informed by what children say, and making sure that all services across a broad spectrum respond to children, looking at where they do not, and in those cases which in our view require the commissioner to look in greater detail at individual cases, having all the associated powers to do so. That is where the Government stand on this issue.
However, there is a need for me to make that as clear as possible. I am always aware that when one stands at the Dispatch Box clarity sometimes may not be as great as it might otherwise be. I shall write formally to the noble Lord, Lord Lester, as he quite rightly indicated from his great experience the differences between different commissions. We have time between now and other stages of the Bill to set out precisely Clause 2 and Clause 4 powers to inform our deliberations. If I do that, I am not saying that there will be an opportunity to bridge the disagreements but at least to be absolutely clear that we understand exactly our own positions.
I would be very grateful to the Minister if she did that and copied the letter to everyone who has taken part in the debate. However, I ask respectfully if she would reflect on the following point. The amendment of the noble Lord, Lord Lucas, that we are now discussing does not in any way suggest that the commissioner should be diverted into individual case work. Quite rightly in my view it refers to issues of general relevance to children, not individual cases at all. I should be very grateful for an answer to the following question. What is the issue of public policy in the Government's mind that makes it undesirable for this Children's Commissioner that we are setting up—who I entirely agree must be a person not put off by dismal propaganda beforehand—to take certain action? What is it that makes the Government fearful of the idea that the commissioner, with no coercive or enforcement powers at all, would be empowered to consider that,
"a matter raises issues of general relevance to children", and to hold an inquiry into that matter? That is what I cannot understand.
I hope that that will be made clear in my correspondence. I shall be as clear as I can now. Under Clause 2, we have said that the commissioner can consider anything. The difference—I think this is the point that the noble Lord makes—is that the powers that we have indicated under Clause 4 are in place because we believe that those powers are essential to carry out individual investigations, or the kind of investigations that we believe are triggered by the Secretary of State. We make that distinction not through fear. We are not fearful of the commissioner; quite the contrary. We are trying to establish how we develop a commissioner's post that is focused on the outcomes identified by children, that is able to consider different systems and where he can talk to anyone and so on. That is a general area, if I may describe it as such.
However, as regards specific investigations that might be undertaken—we have already indicated that the Victoria Climbie inquiry might well have been such an inquiry—further powers would be needed. The noble Lord may disagree with that distinction but I hope that it is clear in terms of what we are trying to do.
It is not for me to say whether the amendment is unnecessary. However, I believe that it creates a distinction that is different from the distinction that is in the Bill. I shall ask the noble Baroness to withdraw the amendment on behalf of the noble Lord, Lord Lucas, who I am pleased to see is present. I refer to the different distinction in the amendment. I shall try to explain that a little further.
As I said, we seek to ensure that the way in which the commissioner operates adds value and is additional to all of the other systems and processes that we have in place and does not second-guess or become part of the process as opposed to being distinct from it. Under Clause 2 powers the commissioner can look across all the issues that we have described. When he becomes aware, from what he hears from children, for example, that a particular issue is of concern he can look into that issue. Clause 2(2)(d) specifically empowers him to,
"consider or research any other matter relating to the interests of children".
He can report on that either in the annual report or on an ad hoc basis, as he wishes. We believe that that is an effective function that flows from what the commissioner learns from discussions with children and young people. He can then look at it and report on it. We think that that is the right way to approach it. Because of the changes that Amendment No. 52 would make, we ask that it be withdrawn.
Amendment No. 53 is a good opportunity for me to explain why Clause 4 gives the power to hold an inquiry when the Secretary of State directs. We expect that the commissioner will gain invaluable experience and expertise in talking to children and in gathering their views, which will be very important. If an inquiry is to be made into a matter affecting children, it is vital that the experience and expertise of the commissioner is brought to bear in the most appropriate way for the best possible resolution of that inquiry. That will not always mean that the commissioner undertakes the inquiry himself. There may sadly be a need for more inquiries than the commissioner could reasonably be expected to handle. Others undertaking inquiries on behalf of the Secretary of State might well call the commissioner to give evidence, based on what he has learnt through the exercise of his function. When the Secretary of State believes that the commissioner is the right person to undertake an inquiry, we believe that the Secretary of State should have the power to direct the commissioner so to do. In our earlier discussions I have indicated that we would provide the funding for such an inquiry. Of course, it would be appropriate that the Secretary of State must take into account other pressures on the commissioner. That is the rationale behind that. On that basis, I trust that noble Lords will feel able to withdraw Amendment No. 53.
If I may rise now, I really must try not being here to move my amendments more often. Clearly, it has been advocated with great force by my noble friend Lady Byford who has quite rightly received compliments from all sides of the Committee. I look forward to reading the letter with great interest. I remain unconvinced, but the letter has it so far as I am concerned.
I think that I shall be out of order again if I do not rise to speak right now. I am trying to be in order. I thank the noble Baronesses, Lady Walmsley and Lady Whitaker, for their contributions. I remember sitting through the debate on Amendment No. 17 on Tuesday. I am grateful to the noble Baronesses for speaking on this important amendment. I am also grateful to the noble Lord, Lord Lester of Herne Hill, whose authority I could not start to achieve but which I respect enormously.
I should like to ask four questions before my noble friend decides whether to withdraw the amendment. I asked the Minister to comment on the meeting of the Joint Committee on Human Rights at which the Commissioner for Children and Young People in Scotland said in evidence that she would not be able to maintain her position were she subject to such restrictions. It is important that this point is not lost. Have I missed it?
I feel that the noble Baroness has had the opportunity to make such points in her speech. To come back with detailed points may not be in order. I beg the noble Baroness's pardon. I am advised that it is Committee stage and that in fact the noble Baroness is in order.
That is why I rose to speak rather quickly because I think that earlier on I was out of order and I am becoming more terrified as the minutes pass. The noble Baronesses on the other side of the Chamber are very nice but it is off-putting when one thinks one is in order and then one is told that one is not.
I therefore ask the Minister for a reply to that comment, which was made in all sincerity, and to answer my question about what contact she has had with the Children's Rights Alliance and what response she has had to that. I also draw the Minister's attention to her response to the noble Lord, Lord Lester of Herne Hill, on Clause 2(2)(d). She seemed to imply that that referred also to an inquiry. The provision refers to the consideration or research of,
"any other matter relating to the interests of children".
It does not refer to an inquiry at all. I should be grateful for clarification as the point is not clear.
I have tried to be very non-party political as I think that that is in the interests of all of us. The Children Bill is hugely important. However, I must say to the Minister, for whom I have great respect, that I feel very disappointed. If we cannot achieve consensus as the Bill progresses, it will be yet another example of a Government who say that we should devolve matters down, as has happened in local government, and yet want to hold on to control at the centre. This is another very clear example of that.
The Bill has raised huge hopes outside; people are looking to it to achieve an awful lot. Yet, in the first instance, it has been another example of Labour raising your hopes but letting you down.
Before the Minister responds, will she also reflect on my comments on this group of amendments and tell us how the Government would respond should the Secretary of State direct such an inquiry, but should the commissioner feel that he or she did not have either the time or resources to carry it out?
I was very supportive of the noble Baroness, Lady Byford, standing up to correct me because I had not answered her questions, but I rather lost enthusiasm as her comments developed. It is never my intention to let anyone down. If she is disappointed that I am not able to take on her comments, she should see it from my end of the telescope. I am quite clear about what we are trying to achieve. I know that noble Lords' comments are always made within the framework of seeking the most appropriate way of delivering a children's commissioner. I put our disagreements in that context. However, it is never my intention as a Minister or as a proud member of the Labour Party to disappoint anyone.
The noble Baroness asked me about the comments of the Scottish commissioner. I had the privilege of meeting her just before she started her role. I have not read her submission but I will of course do so. She is inevitably very new in that role, which she looks at from a very clear perspective. I found her contribution to the all-party group extremely enlightening and very interesting. I am not sure whether I will agree with her comments, but I take nothing away from her abilities, which have been demonstrated to me. I wish her every success in her new role. I am not sure that she is able now to say what will eventually evolve for her. However, I will look at the comments and write to the noble Baroness if I can elucidate further.
I have met the Children's Rights Alliance with my right honourable friend Margaret Hodge on at least one occasion. I have met many different organisations during the course of the Bill. I am not sure that I met the alliance per se but I have certainly met many organisations that are a part of the alliance. Those very important organisations have at heart good wishes for children and the desire to support them. Our discussions are therefore extremely positive. It is not that we do not admire and respect those organisations; it is just that we sometimes do not agree with their conclusions. I am sure the noble Baroness will agree with that.
On paragraph (b), the difference is a general inquiry. The wording implies, and it is correct, that the commissioner could hold a general inquiry. I hope that the noble Lord, Lord Lester, will not disagree that the difference is that the inquiry under Clause 4 brings with it particular powers that are not invested in Clause 2. However, to inquire across systems and about the issues which children raise is absolutely within Clause 2. I hope to establish that clarification properly in correspondence. It is an important distinction.
The noble Baroness, Lady Walmsley, rightly said that I had not answered her question. It is for the Secretary of State to provide the resources to the commissioner for the inquiry. There is no question about that.
I am not sure that it would reach the point of disagreement, because although the relationship needs to be robust between the independent commissioner and the Government, it must also be the case that the commissioner and the Secretary of State have such a relationship that they would discuss the inquiry. My view is that when such inquiries arise—as the noble Baroness, Lady Howe, and the noble Lord, Lord Laming, said—they should be a process of looking at what more needs to be done. Big inquiries are not undertaken lightly or unless it is absolutely clear that that is the most appropriate way to go forward to achieve the best possible results in order to support children now and in the future. I imagine that the dialogue on this issue will continue, but I will reflect on what the noble Baroness, Lady Walmsley, has said. On that basis, I hope that the noble Lord will withdraw the amendment.
I shall speak to Amendments Nos. 64 and 131 in this group.
There are two purposes to Amendment No. 64, which is a probing amendment. The first is to give the Minister an opportunity to confirm that, under the current wording in the Bill, local government will pay for the cost of inquiries, rather than, as my amendment suggests, the Children's Commissioner and the Secretary of State. The second purpose is to find out whether the Minister envisages more inquires. Currently there are one or two major inquiries a year into child deaths and child abuse. The remit in Clause 4(1) is wider. Inquiries can be held when an individual case raises issues of relevance to other children.
So, does the Minister expect more inquiries to be held across a much wider range of subjects? For example, could an inquiry be held into the reasons for the exclusion of a pupil or a group of pupils from school? The Independent newspaper estimated in an editorial last
What about frequency? How many inquiries each year does the Minister envisage? What does the Minister think that they will cost? Does the Minister envisage that local government will pay for such inquiries? If the costs fall significantly on a single local authority, even though the issues relate to children all over the country, will the Secretary of State meet part of the cost?
Amendment No. 131 has appeared in the wrong place in the Marshalled List and relates not to Clause 7, but to paragraph 7 of Schedule 1. It should really have been debated when we debated Schedule 1, because noble Lords will see that it is part of the debate that we had the other day when I was promoting the idea that the Children's Commissioner should be appointed not by the Secretary of State, but by Her Majesty the Queen, on the recommendation of Parliament. The amendment falls perfectly in line with that suggestion. If Parliament is to appoint the commissioner, the payment should also come from it.
If the Minister was puzzled by the mistaken thought that I wished to delete Clause 7 entirely, I hope that I have clarified the situation. I hope that the Minister will consider the amendment in the light of that explanation. It would add to the independence of the Children's Commissioner from the executive, which I advocated a few days ago. In the light of our debate on Tuesday, I hope that the Minister will consider the amendment.
I should like to speak to Amendment No. 131, which also stands in my name. I commend to the Committee the 11th report of the Joint Committee on Human Rights, Commission for Equality and Human Rights: Structure, Functions and Powers, which was published yesterday. It deals in some detail with independence and accountability, starting at paragraph 108. The Joint Committee looked first at the traditional non-departmental public body model and alternative models. I shall not bore the Committee by going through that. It then looked at the need for independence, including independent funding, of the proposed new commission.
One of my concerns is the possibility that the Children Bill would become a precedent for what would happen with the much wider and more powerful commission for equality and human rights. That relates as much to independence of funding as to anything else. The White Paper on the new commission is due out next month. I do not suggest that the Minister will know anything about it at this stage. At paragraph 126 of its 11th report the Joint Committee highlighted the need for a system of funding independent of direct ministerial control. It then suggested the relationship with Parliament. Paragraph 130, which deals with the commission not the commissioner, recommends:
"The commission should be funded by moneys voted by the House of Commons directly, not through the voted expenditure of a ministerial department. The adequate funding of the commission, having regard to the need for efficiency, economy and effectiveness in the use of its resources, will of course be essential to guarantee its independence. It will require more funding than the combined budgets of the existing commissions".
That is part of an important general section on the points raised by my noble friend Lady Walmsley—the appointment and accountability of the commissioner. The funding is part and parcel of all of that in Schedule 1.
Our amendment, which was tabled before the report was published, would achieve a system of funding that would enhance the independence of the commissioner by making it a matter for the House of Commons rather than for the Secretary of State.
As Members of the Committee have made clear, the amendment is about resources. I was grateful to the noble Lord, Lord Lucas, for his comments. The answer to his question is "Yes", which is probably the speediest and most helpful response that I have given today.
The Government intend to meet the cost of inquiries undertaken by the commissioner under Clause 4. We recognise that the cost of some inquiries could be substantial, therefore we would want to ensure that we fund them in addition to providing core funding.
The noble Baroness, Lady Walmsley, asked whether I thought that there would be more inquiries, how many there would be, and at what cost. The great tragedy is that we hold inquiries when things go terribly wrong. It is our ambition, through the Bill and much of the work of the Green Paper, that the kind of inquiries that we have seen over the past 30 or more years will become unnecessary because children will no longer be in such circumstances. I cannot predict the future. I hope that the kind of inquiries that we find ourselves conducting under Clause 4 will be of great import but will not be based around tragedy for children. So I cannot give the noble Baroness, Lady Walmsley, an indication of what costs there would be. I do not expect she is surprised. These inquiries can be incredibly important, not only in getting to the bottom of the individual issues, but also in terms of learning the lessons. We would want to ensure those were taken on board where that was important.
Paragraph 7 of Schedule 1 of the Bill would give the Secretary of State the power to make payments, and this would include paying for inquiries as well as routine grant payment, as the noble Lord, Lord Lucas, would expect. Earlier in this debate, questions were raised about some of the wording in Paragraph 7 of Schedule 1, and I did agree to consider the points raised in that part of the debate. However the precise wording emerges, our commitment to the principle of meeting the cost of inquiries will stand.
I am grateful for the clarification of Amendment No. 131. Indeed, the note that I have simply says that it would mean that payments were made by Parliament rather than the Secretary of State. So it stands on its own perfectly well in that context. I was very interested in what the noble Lord, Lord Lester of Herne Hill, said. I sense that my weekend reading has arrived in the shape of the report, which, with the Higher Education Bill next week, is a pity. I think my weekend may have just disappeared.
I will reflect on what is said in the report, and draw it to the attention of my right honourable friend the Secretary of State, because, as the noble Lord, Lord Lucas, quite rightly indicates, there is a need to look very carefully at what is being suggested.
I have already undertaken to look at the issues of funding. I will look at what the noble Lord, Lord Lester of Herne Hill, has very kindly drawn to my attention. On that basis, I hope the noble Lord will feel able to withdraw the amendment.
In moving this amendment, I shall speak also to Amendment No. 58, which also stands in my name and that of my noble friend Lady Walmsley.
I can deal with Amendment No. 55 very quickly, because it is banal. I hope the Minister will be able to tell me it is wholly unnecessary because it falls within the general powers of the Children's Commissioner in paragraph 2 of Schedule 1 to the Bill, which tells us that the commissioner,
"may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions".
That is the general, incidental power which one finds in all statutes. All that Amendment No. 55 seeks to do, for the avoidance of doubt, is to mirror Clause 13(3)b of the Children's Commissioner for Wales regulations, empowering the Children's Commissioner to set out her or his findings, conclusions and recommendations in the report. I would be surprised if that did not fall within the general powers, and we would seek assurance in that respect. If it does not, express words will be needed.
While talking about express words, may I become an old fogey and say that I hope that, before the Bill leaves this House, the grammar might be improved. In Clause 2, for example, I did not know that there was a verb called "to research" in the way that it is used there; namely, "to consider or research". I thought it was "to conduct research", but I may be wrong.
Amendment No. 58 is more substantial. If the Secretary of State directs the commissioner to hold any inquiry, then a report of that inquiry must be sent to the Secretary of State and laid before Parliament. In the Bill, it is proposed that the Secretary of State may then edit the report to conceal the identities of children or withhold it from publication. The relevant provisions are in Clause 4(3) to (6). That is at odds with the position of the Children's Commissioners for Wales, Northern Ireland and Scotland, who are treated as grown-ups capable of censoring their own reports. The responsibility rests with those commissioners. Exactly the same is true of the Equal Opportunities Commission and the Commission for Racial Equality, which are under a statutory obligation only to publish reports—the nasty, coercive ones or the general ones—subject to questions of, among other things, personal privacy.
Everyone agrees that we need safeguards for personal privacy, especially where children are concerned. Amendment No. 58 would change the position by inserting a new subsection (5) that would remove the power from the Secretary of State and place it with the Children's Commissioner. That is a read-across from Clause 13 of the Commissioner for Children and Young People (Scotland) Act 2003. Essentially, I want to know why the English commissioner should not have the same power and the same responsibility as the Scottish commissioner. It seems heavy-handed to say not only that the Secretary of State should direct that there be an inquiry but that, when the report is made, the Secretary of State will have responsibility for censorship of the report—the word "censorship" is correctly used here—instead of leaving it to the commissioner.
Somebody asked about safeguards. Obviously, the Children's Commissioner, if given the responsibility, would have to be careful to respect personal privacy. The Children's Commissioner will be subject to, for example, the Human Rights Act 1998, as a public authority. The commissioner will have to have regard to a child's right to respect for private life. We now know that the commissioner must have regard to the children's rights convention. There will need to be a lawyer at the shoulder of the Children's Commissioner, if the amendment is made, just as there will need to be a lawyer at the shoulder of the Secretary of State, if the power of censorship rests with the Secretary of State. Just like the Secretary of State, the commissioner would have to make sure that the power was not abused.
Given that the Local Government Act controls what I call "subpoena powers"—that is, all under the Secretary of State and, ultimately, the courts—and given that there will be adequate safeguards if the Children's Commissioner gets it wrong, I do not see why we cannot give the Children's Commissioner for England the same responsibility as we give those in the other parts of the United Kingdom. That is another aspect of unnecessary central government control over an independent commissioner. I beg to move.
I have a clutch of amendments in the group. Amendment No. 56 would insert the word "promptly". I think that the objective of that amendment is clear.
Amendment No. 57 would leave out the words,
"in such a manner as he thinks fit".
The Secretary of State might, for instance, place a report in the Library of the House without telling anybody. That has been done before. There should be a duty to publish properly. Perhaps it is implicit, but I would be grateful for some comfort on that.
Amendment No. 59 addresses one of the subjects touched on by the noble Lord, Lord Lester of Herne Hill. I share his discomfort that it should be the Secretary of State who censors these things. It is not proper that the Secretary of State should be able to say that he will not publish a report because a certain paragraph mentions an individual child's name or because something might be inferred from it about an individual child. I really think that it has got to be someone else, particularly since it might be a report that is critical of the Secretary of State, his officials or other members of the Government. To give the Secretary of State carte blanche to censor in an unrestricted way, which is the way the Bill runs at the moment, I find uncomfortable. I have suggested the High Court. Having listened to the noble Lord, Lord Lester, I share his views that it should be the commissioner who has to make sure that children are properly protected by the contents of the report.
Amendment No. 60 is a corollary of that. If the Secretary of State is to censor the report, it has to be clear that, in doing so, he is restricted to the minimum necessary in order to protect the identity of a child. This very much looks at the sort of procedure that is supposed to come in under the Freedom of Information Act, and so forth. Again, if this was the duty of the commissioner rather than the duty of the Secretary of State, I would feel much less strongly about it. Amendment No. 61 just follows on from Amendment No. 59.
Perhaps I may add an apology that I shall depart at six o'clock. I have two further amendments. If the Minister chooses to reply to them in their grouping, I may not move them when I come to them in their place. I think that I am fairly safe in saying that we shall not reach Amendment No. 247A today. It may be that Amendment No. 109A drops, but there we are. I leave them at the disposal of the Committee. But the noble Baroness does not need to feel that she should not reply to them just because I am not there. That may save her time later.
I shall speak to Amendment No. 57 in support of my noble friend Lord Lucas who, clearly, has explained his discomfort at this wording being in the Bill, and to Amendment No. 62. This Bill, as do so many others over the past five years, gives enormous unsupervised power to the Secretary of State to act through regulation and guidance. The report to which this section refers will be prepared by the commissioner. Giving the duty of publication to the Secretary of State may perhaps be regarded as courtesy. Such publication should be full and complete and not subject to further secretarial discretion.
As technology moves on, it may be that publication involves more than publication in a hard or soft-back booklet. But whatever the medium in vogue, the report should be made available to everyone who wishes to access it. I think that that is something that my noble friend has spelt out clearly.
Amendment No. 62 would protect the commissioner in his ability to do his work properly. The Children's Commissioner, given an investigation by the Secretary of State, will be required to gather information, collate it, analyse it and, from his analysis, draw conclusions on what happened and why. It is wholly possible and quite likely that in some, if not all, of his reports, he may have to criticise people—for example, services providers, professionals, parents, family and other friends—as my noble friend has just described. It could be a whole variety of people or organisations.
In many cases, this criticism will be couched in terms that reveal the identity of those involved, whether directly or indirectly. It may be that they will consider the criticism is harsh or even unjust. Others may use the criticism to remove or downgrade individuals from their position. It would surely be wrong in such circumstances for there to be any way in which such an individual could go to the court in pursuit of reparation.
By putting this simple amendment in the Bill, we hope to ensure that the Children's Commissioner can carry out his duties free of the possibility, however remote, that he may have to expend precious time defending himself against a law suit. I think that this is an important addition to the Bill.
This is an interesting group of amendments covering a range of issues about the publication of reports of inquiries held under the terms of Clause 4. Our approach here is very straightforward. The Secretary of State would direct the commissioner to conduct an inquiry; the commissioner would hold the inquiry and write the report—its contents are for the commissioner and no one else to decide; and the Secretary of State may make a decision on one significant point; that is, whether a child's identity needs to be protected. The Secretary of State would then publish the report unless it is impossible to do so without disclosing the child's identity and the Secretary of State thinks that that would not be in the best interests of the child.
There is no unrestricted power of censorship. The Bill does not give a power to the Secretary of State to censor a formal inquiry report. He can amend it only in the circumstances that I have indicated. That is an important point to bear in mind.
Amendment No. 55, moved by the noble Lord, Lord Lester, specifies certain points that should be contained within any report made under this clause. I have no problem with the principle behind this amendment. One would expect the report of an inquiry, other than in exceptional circumstances, to contain conclusions and recommendations. The noble Lord went on to ask why this was not a reflection of what happened with the Welsh commissioner. I cannot answer that question at this moment, but I shall write to the noble Lord. We think that the provisions are necessary because it is what we would expect to happen in any event. So this is not in any way an attempt not to reflect what was said about the Welsh commissioner; it is simply that we assumed that that would be a part and parcel of the provision. While what I have said may be sufficient, I shall look at it again.
The noble Lord, Lord Lucas, indicated that Amendment No. 56 would place a duty on the Secretary of State to publish "promptly" any inquiry report produced by the commissioner. We envisage that the Secretary of State would respond in a prompt manner to any report produced by the commissioner. There has never been any intention to allow the Secretary of State to delay publication, especially for a political reason.
However, there may be sound reasons for minor delays that I want to outline for noble Lords. The Secretary of State will have to consider whether there are grounds to exercise his powers under subsection (5) to protect a child's identity. He may wish to take advice, not least from the child or the family, on that question. Alternatively, the Secretary of State may feel that where a report alleges criminal activity by a named person or persons, it would be necessary to liaise with the police or other authorities to check whether the alleged offender is working with children, to prevent the person absconding or to protect that person from reprisals.
I am sure that noble Lords will agree that those are valid reasons not to publish the report immediately, all of which would be discussed with the commissioner. But I agree completely that the Secretary of State should not delay the publication of a report because he disagreed with its conclusions. I am sure that the Secretary of State would be called to account by Parliament in another place and, I am sure, noble Lords would ask questions in this House. I hope that those reassurances are sufficient, but I understand the sentiments that lie behind the amendment. I shall take advice and see whether anything more can be done in the spirit of my remarks. I recognise what noble Lords are looking for here. Without commitment at this point, I will look at the matter again.
I turn to Amendment No. 57, also moved by the noble Lord, Lord Lucas. I welcome the opportunity this amendment provides for me to explain a little further our thinking here. The wording of this clause was designed to confirm the flexibility afforded the Secretary of State in exactly how to publish a report. It could be in the form of a book available from the Stationery Office, a government publication on-line or a combination of those. It would allow flexibility on the issue of whether and how to produce a version aimed at children and young people. That is why the subsection has been worded in this way. It has not been written with the intention of allowing the Secretary of State to publish a report in an obscure fashion so that it could be hidden. Moreover, obviously there is no intention that it should be edited other than within the powers exercised under this subsection.
I hope that, with those reassurances, the noble Lord will feel that the amendment is unnecessary and I invite him to withdraw it. However, again I understand the implications behind the proposal and I shall see whether we can say something firmer on this matter. That may not necessarily be a form of words on the face of the Bill, but I may return with words that will reassure the noble Lord more clearly than I am able in my contribution this afternoon.
Amendment No. 58 would have two main effects, the first of which is the transfer of responsibility from the Secretary of State to the Commissioner for decisions about the disclosure of the identity of a child or children.
I think that we are all agreed that this is a significant consideration in the publication of a report. It is our view that it is the Secretary of State who should make that decision. Based on the general approach that we have taken to this clause, it is the Secretary of State who orders the inquiry and publishes the report. It is therefore right that the Secretary of State should take the decision. We would expect the Secretary of State to take advice, including from the commissioner, before making such a decision.
I noted what the noble Lord, Lord Lester, said about "a lawyer at their shoulder". I reiterate what I have said about the focus of the commissioner being on children, on the interests of children and on talking to children and representing their views. I would rather that the Secretary of State, who already has a lawyer at their shoulder, has that role in this context.
We have also said that the commissioner may publish other reports: an annual report and other ad hoc reports. In those circumstances, the question of individual identity does not arise.
The second effect of the amendment would be to set out when the commissioner may or may not disclose information that he has obtained through a formal investigation. We do not believe that these restrictions are necessary. As presently conceived, the only power of formal investigation is set out in Clause 4. We therefore do not believe that is an issue which will arise. However, I recognise the complexity of some of the issues raised. I will reflect appropriately on that and return to your Lordship's House, either in writing or, if I feel that there is something further to be done, by amendment.
Part of it comes from the Northern Ireland model and part of it comes from the Scottish model. Am I right in saying that the Children's Commissioner is a public authority which must respect personal privacy regardless of the Secretary of State, as well as natural justice; that the Children's Commissioner will need to take legal advice, just as much as the Secretary of State will; and that, in Scotland, Northern Ireland and Wales, the Commissioners are given that responsibility to protect personal privacy without the Secretary of State having to do so? The safeguards that we have built in are there precisely to comply with human rights: to make absolutely sure that the coercive powers of the commissioner will not be abused.
What we would be asking on Report, if possible in writing beforehand, is exactly why it is not possible, with all these safeguards from Scotland and Northern Ireland, to give that responsibility to the Children's Commissioner. I think that is what we are searching for.
I can certainly reflect on what the noble Lord, Lord Lester, has said. However, we are back in the territory of the differences in the way in which we perceive the commissioner and the commissioner's role—Clauses 2 and 4 in terms of their responsibilities.
I will reflect, however, on what the noble Lord has said regarding human rights and on ensuring personal privacy. I have indicated that, because we anticipate that the issue of personal privacy, ensuring that names are not revealed and so on, are very much part of the Clause 4 inquiry, it would rest with the Secretary of State and the legal advice.
The noble Lord is asking me to do two things: to reflect on that in itself, which I would say is not something we would wish to change, and also the broader question regarding the role of the commissioner and the matter of human rights. I will certainly ensure that we reflect on that, because it is important. I am grateful to the noble Lord for raising that.
Perhaps I may now turn to Amendments Nos. 59 and 61. These would transfer from the Secretary of State to the High Court the power to make decisions about whether a child's identity should be disclosed.
In a sense, we are rehearsing part of an argument that we have already had. We believe that it is in keeping with the rest of what we are trying to do. This role should fall to the Secretary of State, as the person ordering the inquiry and publishing the inquiry, in dialogue and conversation with a number of those involved, not least the commissioner—from whom we would expect the Secretary of State to take advice.
In extreme cases, those who felt it appropriate to seek judicial review would have the right to do so if they thought the Secretary of State was acting unreasonably, either by disclosure or by non-disclosure, by withholding the report. As I said, I would also expect Parliament to seek an understanding from the Secretary of State if a report was withheld, for it would surely be known that an investigation had been undertaken by the commissioner.
Amendment No. 60 specifies that the Secretary of State can amend a report only in so far as it is necessary to do so in order to protect the identity of the child. I am happy to clarify that the commissioner's report would be independent. It is not the Government's intention that the Secretary of State should alter or amend any of the commissioner's reports except to protect the identity of a child.
My advice is that the amendment is not necessary. As subsection (5)(a) is subordinate to subsection (5) itself, there is a clear inference, we believe, that this is the only way in which the Secretary of State may amend a report. I hope that with that reassurance, the noble Lord will not press his amendment.
Finally, Amendment No. 62 would protect the commissioner from legal action under the law of defamation. This is an important point: we expect the commissioner to produce fair and accurate reports and to be mindful of the need not to include statements that could be unjustifiably damaging to an individual or group of individuals. As the noble Lord, Lord Lester, has indicated, we anticipate that the commissioner will employ or have ready access to a legal adviser to avoid such occurrences. This is all the more important, given the strong emotions that are aroused by children's welfare, especially if actual or suspected abuse is involved.
The Government consider that the commissioner must be free to carry out his duties and help to protect children without being constrained by a constant fear of litigation. I will be happy to review whether legislation is needed to give the commissioner appropriate legal protection. I will consider this in more detail before Report. On that basis, I ask the noble Baroness not to press the amendment.
I am very grateful for what the noble Baroness has said on my amendments. So far as the earlier two are concerned, I will mull over whether I can come back with a constructive amendment and hope that she does better than me in the same endeavour. As far as the next two are concerned, I shall not pursue that line and will take an interest in what the noble Lord, Lord Lester, does about his amendment.
On Amendment No. 61, will the noble Baroness consider tweaking the wording of subsection (5) so that it comes more into line with the Freedom of Information Act 2000? I would expect there to be a duty to amend and publish if possible, which is what the Act provides. If you can, by deleting or amending, make something publishable, that is what you have to do. At the moment, it is not clear; the alternatives are that you can amend it or you cannot publish it. I would like it to be clear that you have to amend if you can, and it is only if you cannot that you cannot publish.
My advice is clear but I will of course look again at that point if the noble Lord feels that still more clarification is needed. I will write to him and pursue this if I think we have not made that clear.
I am satisfied with the Minister's answer that Amendment No. 55 is not necessary because the Government accept that what is sought is implied. It is for the Government to decide whether to make that quite clear on the face of the Bill. The Minister has already indicated that. On that basis, I beg leave to withdraw the amendment.
moved Amendment No. 67:
After Clause 4, insert the following new clause—
(1) Where the Children's Commissioner considers it is necessary and expedient to do so for the proper conduct of a formal investigation, he may, at any reasonable time, enter any premises in which—
(a) a child is living or being looked after;
(b) a child is being detained under any statutory provision;
(c) education, health, welfare or other services are provided for children; or
(d) the Commissioner believes a child is, or may be, employed or receiving training.
(2) On entering any premises under this section, the Children's Commissioner may—
(a) make any examination into the state and management of the premises and the treatment of children there which he thinks appropriate;
(b) subject to subsection (3), inspect and take copies of any documents or records which are required by any statutory provision to be kept there;
(c) subject to subsections (4) to (6), interview in private any child present on the premises;
(d) interview in private any other person present on the premises who is employed there (whether the employment is paid or unpaid or under a contract or otherwise).
(3) The Children's Commissioner shall not exercise his power under subsection (2)(b) unless he considers it necessary to do so for the proper conduct of an investigation.
(4) Before exercising the power conferred by subsection (2)(c) in relation to any child, the Children's Commissioner shall inform the parent of the child—
(a) of his intention to interview the child; and
(b) of the parent's right under subsection (6); and shall supply the parent with sufficient information to enable him to exercise that right.
(5) Subsection (4) does not apply if in the Children's Commissioner's opinion—
(a) it would not be in the interests of the child to inform the parent in accordance with that subsection; or
(b) it would not in the circumstances be practicable to do so.
(6) The parent of the child has the right to be present at any interview conducted under subsection (2)(c) unless—
(a) in the Children's Commissioner's opinion—
(i) it would not be in the interests of the child for his parent to be present; or
(ii) it is in the circumstances not practicable for the parent to be present; or
(b) the child objects to the parent being present and, in the Commissioner's opinion, that objection is reasonable (regard being had in particular to the age and understanding of the child).
(7) Where the Children's Commissioner proposes to exercise the power of entry conferred by this section he shall, if so required, produce some duly authenticated document showing his authority to exercise the power.
(8) Nothing in this section authorises the Children's Commissioner to enter any premises (or any part of any premises) used wholly or mainly as a private dwelling."
In moving Amendment No. 67, I should like to speak to Amendment No. 68 as well. Both amendments deal with very important issues. The first deals with powers of entry and inspection for the purposes of formal investigation, and the second deals with further action following the report of a formal investigation.
It is hard to think of the Children's Commissioner being refused entry to any place that is not a private dwelling where children are looked after or educated. However, it is the duty of this House to think the unthinkable and to ensure that Bills leave here with as few built-in loopholes as possible. In cases when an institution is being investigated, either on its own or as part of something wider, it is entirely possible that those in charge may wish to delay matters until, for example, the paperwork has been brought up to date. If the Children's Commissioner has no express right of entry—to his timetable—a delay may be inevitable, if only to clear his credentials.
Earlier today, I referred to a meeting that I had with the disabled group yesterday. One issue that was particularly raised was the important one of being able to give evidence or seek advice in privacy. The particular claues that we are dealing with are hugely important. In the case of an establishment that may be employing or training a child, the right of entry must be defined. Many small businesses are run by people with little knowledge of the law and no means of instant access to it. A school, for example, can ring up the legal department at the county or metropolitan county and obtain swift directions. A plumber with four adult staff and an apprentice will rarely have recourse to such a speedy response. If the rule is included in the Bill, it can be demonstrated on the spot and possibly cross-checked very easily through a body such as the Citizens Advice Bureau.
The Children's Commissioner's rights once he is on the premises must be carefully circumscribed, but they should give him reasonable access to the place itself, its management, its record systems, the people who work there and any children who attend there in any capacity. I believe that this amendment satisfies all those conditions. The Disability Rights Commission supports the aim of this amendment to give the commissioner essential powers of entry to an establishment and the ability to interview children and young people in private, on which I touched earlier.
On Amendment No. 68, the main reason for having a Children's Commissioner is to give children their own champion—a person who is on their side, good, bad or ugly enough to ensure that everybody else is also on their side. It is extremely important. There may be difficulties, but such a person will listen to them.
Travelling around the country from time to time as I do, I often listen to Radio 4. Recently, there were a mass of most unlikely but at the same time informative programmes. Through some of them I have become uneasily aware that almost ever since the end of the First World War, authorities of various kinds have acted on behalf of children in ways that, sadly, should not have happened then and that would not now be tolerated. This clause may never have to be invoked—I sincerely hope that it is not. However, not to include it in the Bill—I will listen to the Minister's response with interest—would run an unacceptable risk that further cover-ups may happen. We do not want that to happen, especially in our dealings with children. I beg to move.
I added my name to both these amendments. Amendment No. 67 is a critical test of the commissioner's independence and of his or her capacity to safeguard the most vulnerable children. For the post to be effective, the commissioner must have the power to initiate contact with children and meet them in private. Without it, authorities would be able to refuse access to institutions and to individual children, perhaps under some of the circumstances referred to by the noble Baroness, Lady Byford.
While we would expect that most institutions will understand the role of the commissioner—and support it and co-operate with him or her—this power is necessary as a symbol of the commissioner's independence and singular allegiance with children and as a safeguard to protect children from those who would seek to keep them away from the commissioner. The amendments set out the process the commissioner must follow when seeking to interview children in private, clearly stating the need for parental consent and involvement unless it is not in the best interests of the child.
Children's developmental state makes them uniquely vulnerable. They are more susceptible than adults to coercion and intimidation. We know from past enquiries into abuse in residential care that abused and mistreated children can remain silent for months and years because they do not have the knowledge, confidence or opportunity to make contact with someone outside the institution in which they find themselves. The practical barriers preventing children seeking help themselves can be huge and impenetrable, especially for younger children, disabled children and children in custodial settings.
It is under the circumstances where the Children's Commissioner believes that there is an abuse of the system— something going wrong for children in general—that he or she would want to enter institutions where children are held. Some of the lobby groups have asked for even further powers of entry than are in this amendment. I believe that under the circumstances where the commissioner has reason to believe that immediate intervention is required because an offence may be about to be committed, the commissioner would actually work with the police. Therefore, that sort of power is not necessary. I would certainly anticipate a very close collaboration between the commissioner and the police under those circumstances.
Amendment No. 68 is very important in terms of making sure that the commissioner's work is effective and that something actually happens as a result of what he or she has to say. It is not enough for the Government to claim that an effective commissioner will be able to elicit a response from a relevant body. On the other hand, it is relying too much on the good will of bodies subject to a formal investigation to expect them always to provide a timely, serious and considered response to the commissioner's recommendations. In difficult circumstances, the pressures on bodies to ignore, stall or dismiss out of hand the commissioner's recommendations will be immense.
If the Government want and expect bodies to respond to recommendations arising from formal investigations undertaken by the commissioner, then this amendment should be in the Bill. Without this provision, from the start the commissioner will have a serious credibility problem, and will be impotent to act if his or her recommendations are met with silence or a half-hearted and derisory response. To refer to mixed metaphors that we used on Tuesday, the commissioner would be a set of ears without any teeth.
We really do need both Amendments Nos. 67 and 68 in order to ensure the commissioner has the powers that he or she will need.
I should like strongly to support the need for the commissioner to have a right of access to any institutional premises where children are. However, the powers should not be limited, as it is in Amendment No. 67, to the context of formal investigations. As I said in the earlier debate on investigations, we are all agreed that formal investigations, which inevitably take a lot of the commissioner's resources, should be rare.
Similarly, we would not expect the commissioner to use this power of entry often, and there could be strict criteria for its use. However, we know the terrible abuse suffered by very many children in all kinds of institutions, and how it has persisted despite a whole range of safeguards, inspectors and so on. We also know that child labour persists despite other safeguards under employment legislation. The commissioner is not there to duplicate other services, but he is there to go in when others seem to failing children. As an independent watchdog for children, the commissioner needs to be seen to have exceptional powers to enter, to see relevant documents and to interview children in private, just as he or she needs the power to take or intervene in legal proceedings.
The commissioner in Northern Ireland has those powers and there is just as much need for it in England. An unannounced visit by the commissioner on the basis of a call from a child who finds that his pleas for help are not being listened to or is threatened with reprisals, or on the basis of a call from a whistle-blowing member of staff, could lead to all sorts of necessary action. The commissioner needs to be able to do that without the rigmarole of establishing a formal investigation.
The proposed new clause in Amendment No. 68, on "Further action following report" is also essential, as it requires relevant bodies to respond to the commissioner's recommendations following an investigation. I emphasise again, as I did earlier, that commissioners cannot constitutionally be given powers to overturn the decisions of Ministers or departments, but there needs to be a formal requirement to take the commissioner's recommendations seriously and to respond and explain why if they are not being accepted.
I was of course delighted that the Government conceded with such grace on Tuesday that the commissioner must have regard to the UN Convention on the Rights of the Child. Pursuing the logic of that concession should lead to a revised general function parallel to that of the other commissioners and the addition of these and other powers to give the commissioner the necessary authority and status to promote and defend children's human rights.
The debate so far has suggested universal praise for the Government's introduction of the Children's Commissioner but also very strong support from all sides and corners of the House for full independence and real powers, reflected today in a strong editorial from the Guardian, which I dare say that other Members of the Committee have read as well.
I rise to support Amendment No. 67. The commissioner really needs those powers to get to the truth. There could be resistance; it is understandable for institutions to protect themselves. The commissioner is not going to be able to get to the bottom of things without powers of entry and powers to seize documents. My strong convictions about the matter stem again from my visits with the Joint Committee on Human Rights to Australia and New Zealand, where we had long conversations with very experienced commissioners. It was their firm view that it was essential for the commissioner to have those powers. Their evidence is laid out clearly in the committee's report, recommending that there ought to be a children's commissioner. The powers are moderate, clearly limited and circumscribed.
I also warmly support what other Members of the Committee have said about interviewing children in private.
As I have already supported the inclusion of these powers during an earlier debate, I am not going to go into the same detail again. I have been extremely impressed by everything that has been said and would fully back it. As the noble Baroness, Lady Whitaker, said, the issue about being able to interview children in private is absolutely crucial.
I shall say very briefly, because I do not want to detain the Committee, that very important principles have been laid out in the amendments. The Children's Commissioner for Wales wanted greater powers than were enshrined in the Act passed in 2001. I would ask that any such powers should be also be extended to allow the powers of the Children's Commissioner for Wales to come near those of the commissioner in Northern Ireland. I have not tabled an amendment to that effect, but I know from the helpful discussions outside the Chamber that we have had with the noble Baroness, Lady Andrews, that when we are considering matters relating to England we can consider the implications for Wales.
As noble Lords have indicated in moving and supporting the amendments, these two amendments seek to give the commissioner additional powers with respect to "formal investigations". The Committee will wish to put my remarks in the context of my earlier responses. I believe that I have explained why we are not minded to give the commissioner powers for any formal investigations or inquiries other than the power to conduct an inquiry when directed to do so by the Secretary of State. As the Committee will be aware, Clause 4 as it stands gives the commissioner the powers that he needs for the effective conduct of an inquiry.
Amendment No. 67 would give the commissioner a range of new powers for the conduct of formal investigations, such as the power to enter property and seize documents. It is, of course, right that the commissioner should have the powers required to discharge the duties placed upon him or her, so an amendment of this type would be a natural sequel to any power to conduct formal investigations. However, as I indicated, as the Bill stands, the commissioner does not have that power except under the direction of the Secretary of State in Clause 4. I have indicated the reasons why we are not minded to give the commissioner such a power.
Noble Lords on all sides of the Committee have raised the following point. There is nothing in either the Clause 2 or the Clause 4 powers that prevents the commissioner interviewing children in private with all of the safeguards that Members of the Committee indicated regarding small children, families, permissions and so on. That is entirely appropriate.
We do not think that these additional powers are necessary for the role we envisage under Clause 2 which does not entail casework. However, as I say, we would expect the commissioner to speak to individual children, to talk to children in private and to discuss with anyone relevant—as I have said several times this afternoon—the work that he wishes to undertake. However, we do not believe that he should have the power to seize documents or inspect premises.
We have already provided the appropriate powers in respect of the commissioner's functions under Clause 4, if the commissioner is carrying out a formal inquiry. They include the ability to summon people to attend, give evidence or produce documents and enable him to administer oaths and take evidence under oath. It will be an offence to disobey a summons by refusing to give evidence or to tamper with documents. Under the commissioner's role as envisaged by the Government, we do not think it necessary to give the commissioner powers to enter property or to seize documents.
I agree with what the noble Baroness, Lady Walmsley, said about the need to involve the police in certain circumstances. I say to my noble friend Lady David, whom, as she knows, I hold in the highest respect, that the circumstances that she described in which the commissioner might enter premises gave me good cause to believe that we should not accept the amendments. If the commissioner were able to enter premises having received a phone call from a child, we would have created a post entirely different from that we have set out to create. It is very important that the inspectorates, the police and all those involved in the provision of services play their part in these matters. I accept that the commissioner might wish to call upon those services if he was concerned about a matter. I am convinced that the commissioner, with the oxygen of publicity that is available to him, would wish to see those services respond. However, the role that my noble friend suggests for the commissioner is different from that envisaged by the Government. We are very clear that the role of the commissioner is to support and enrich the work of developing services for children and to take the overview that I have described. On that basis, I hope that the amendment will be withdrawn.
I turn to Amendment No. 68. This amendment would give the commissioner powers to ensure that, where he or she makes recommendations for action to be taken following a formal investigation, these are acted upon. It is certainly not the Government's intention that the commissioner's inquiry reports should sink without trace. Under Clause 4, if directed by the Secretary of State to undertake an inquiry, we would wish the commissioner to identify problems and to propose action to be taken and changes to be made. Reports should lead to action, as the Committee would expect, or to explanation of why the commissioner's recommendations have not been accepted or implemented.
We believe that it is the responsibility of the Secretary of State to look to relevant bodies for responses and agreed action. If the Secretary of State's own department, or another government department were the subject of recommendations, Parliament would expect a response from the Government setting out what was being done to address those recommendations. As ever, the Secretary of State will be accountable to Parliament.
I hope that the Committee will consider that I have answered the questions and responded to the issues within the context of the way in which we have drawn up the commissioner's role. It is important not to underestimate the public profile of the commissioner, the respect in which he will be held within the world of children's services and the ability, therefore, to attract interest and concern regarding the work that he will undertake. In the context of the commissioner who we have set up, we believe that these amendments are unnecessary. On that basis, I hope that they will be withdrawn.
I am very grateful to the Minister for her full reflection on our debate and I am even more grateful for the points that have been raised by noble Lords on all sides of the Committee. I fear that I must be getting very tired because I have listened carefully to the Minister's response and I cannot see where the powers that we are asking for are in Clause 4. As I said, I am a little weary so it could be that I am not seeing where it is and I hope the Minister can assist me with that.
Secondly, I understand that the commissioner cannot insist, he can only be guided or directed by the Secretary of State. I do not think that he can insist in his own right but I am not sure about that. With regard to the commissioner having to respond very quickly to a child's call, that is certainly not our intention. I think that the Minister realises that and she is nodding her head, for which I am very grateful. As we said at the beginning of the day, these are seen as unusual cases that might be directed in that way.
The last of the Minister's comments on which I would be grateful if she would come back to me is that she said that the report should lead to action. Yes, it should, but I cannot see that that is applicable as the Bill currently stands. Other noble Lords may also have queries but I would be grateful if the Minister would answer my four queries in response to her response to me.
I shall endeavour to answer the questions. I have a specific response to the noble Baroness's question on Clause 4. The special powers in Clause 4 are in subsections (7) to (9), which refer to other Acts. I am very happy to explain that in correspondence with the noble Baroness and other noble Lords. My understanding is that it is through the reference to those other Acts that we get the powers. I am very happy to clarify that further if that would help. When the noble Baroness said that the commissioner could only insist, I was not entirely certain precisely to what she was referring. I would be grateful if she would explain.
Does the noble Baroness mean insist on entry to premises? I beg her pardon. The issue is between Clause 2 and Clause 4. Under the powers given in subsections (7) to (9), through these other Acts, it is my understanding that access would be available. I shall clarify that point because the noble Baroness has quite rightly raised it and I shall ensure that it is correct. If that is incorrect, I shall write to the noble Baroness. The differences between Clause 2 and Clause 4 are that Clause 4 is the formal inquiry, if I may describe it as such, instigated by the Secretary of State that brings with it a series of powers given under subsection (7) to (9) by reference to other Acts of Parliament. They enable the commissioner to do a number of things, including seizing documents and having witnesses, powers that he does not normally have in the day to day function of his job under Clause 2. That is the critical difference. In a sense, it is the line between where the noble Baroness wishes to be and where the Government currently are.
I stand corrected. I have had a note that says that there is no right of access under either Clause 4 or Clause 2. The noble Baroness was absolutely right to pick that up with me. I shall clarify that point further and write to noble Lords about it because I would not wish to mislead the Committee on that.
In terms of action, as the noble Baroness said, the issue with which we are all grappling during this long afternoon is how to ensure that action is taken as a consequence of inquiry reports.
We have positioned the commissioner's work so that the action needs to be taken by the Government. The Secretary of State will have formally wanted the inquiry and published the inquiry's report. The Government, who are responsible to Parliament, will be responsible for ensuring that action is taken. I was also indicating that, in the normal course of the work of the commissioner and special inquiries, the oxygen of publicity will be a critical tool in enabling the commissioner to be clear about where people did not respond and where he is concerned about other issues. I would not underestimate that as an important part of our democratic process. In our proposals, however, the requirement for people to act on the formal inquiry would rest with the Secretary of State.
I hope that that is clear. If it is not, I will be happy to clarify it in further correspondence.
This is a probing amendment. It might look like special pleading for London, but it is not. Were we discussing this Bill in two or three years' time, as regional government is rolled out, we could easily be saying the same about Yorkshire or the east Midlands. As a government are already in place in London, we can use it as an example of how the Bill's regional aspects might work out. That is what this amendment is about.
The Bill should be amended to include provision for an Assistant Children's Commissioner for London. That will ensure that there is an appropriate regional mechanism within the national commissioner structure so that proper account can be taken of the diverse needs, rights, views and interests of—in this case—London's children, as well as those of London's governmental structures and policies.
Although there may be a case for a separate London commissioner, I think we would all agree that that model could be confusing to London's children, young people and the wider public. It would assume some knowledge of the different roles and responsibilities of national and regional government. It may be duplicating and lead to potential gaps in service delivery. The preference must therefore be for a model within the national commissioner structure to ensure external clarity and external coherence.
I raised this issue on Second Reading, as did several other noble Lords. I think that the noble Baroness, Lady Howarth of Breckland, said that assistant commissioners in the regions would match devolution and be able to respond to local people and local needs. She is completely correct. It is important that the Children's Commissioner's role must extend to monitoring and promoting and protecting children's rights in the development of policy and legislation at Westminster, alongside an appropriate regional structure to ensure that the commissioner can do his job properly.
An Assistant Children's Commissioner for London would be able to operate with an understanding of the complexity of well established regional government—the GLA—and other London-wide structures. This role would ensure that the Children's Commissioner function is apprised of and engaged at local government level in health, social care, education and, crucially, with the role of regional government in planning, community safety, culture and transport policies as they affect children.
Under the Greater London Authority Act 1999—which some noble Lords will remember putting through the House—the Mayor's statutory responsibilities, as I am sure he will recall, include the preparation of strategies, plans and policies for London covering transport, spatial development, planning, culture, ambient noise—I remember that one—air quality, waste management, biodiversity and economic development. In addition, the Mayor has a range of specific powers and duties and a general power to do anything that will promote economic and social development and environmental improvement in London.
As children and young people are major users of the public realm and have expressed strong interest in those areas, they are particularly susceptible to, for example, the effects of environmental degradation, poor air quality and unsafe play areas. Children's opportunities to play in green and open spaces are being addressed in a GLA group by the London Plan and its supplementary and best practice guidance, while children's community safety issues come within the remit of the Metropolitan Police Authority and Service, Transport for London and the London Child Protection Committee. I am saying this because it amplifies the point about why and how addressing the regional issues would make the job of the Children's Commissioner easier and would address at an appropriate level the sorts of issues that one would wish to have addressed—in this case in London.
An assistant children's commissioner for London would be required to safeguard the interests and rights of London's 1.62 million children and young people and their unique diversity and specific issues. On a population basis alone, London has two-and-a-half times the number of children and young people than Wales, nearly three times the number in Scotland and one-and-a-half times the number in Northern Ireland—which is why, indeed, they have their own commissioners. On numbers alone one could make the same argument about my own home county of Yorkshire and other regions of the country.
This is a probing amendment. We want to have this discussion and it is important that it is addressed in the Bill. I beg to move.
I have added my name to the amendments tabled by the noble Baroness, Lady Thornton. The appointment of a children's commissioner in London would be a good idea and I, too, hope that it would be the first of a set of regional assistant commissioners. Earlier today I addressed the issue of the size of the population of children in the UK—not from the point of view of diluting the powers of the English Children's Commissioner, rather to give more resources and divide them up regionally.
The region is a practical and effective level for developing consultation mechanisms and engagement with children and young people. Consultations by the Office of the Children's Rights Commissioner for London highlighted that children particularly identify with their neighbourhood and their city, when raising quality of life, safety and well-being issues with their representatives. A regional commissioner structure is also needed in London to reflect the diversity of London's children—41 per cent of London's children and young people aged under 18 belong to black, Asian or minority ethnic groups. That figure is even higher in inner-London; namely, 53 per cent. Between them they speak about 300 different languages.
A similar diversity occurs in my region, the north-west, where I hope that sometime in the future we will have regional government. So I support both the detail of the requirement for a London commissioner and the principle that he or she should be the first of a series of assistant commissioners, who together form a commission for England's children.
I rise briefly to support the amendment, simply because I have argued from the drafting of the Bill that it would be useful to have a commission, rather than a commissioner with a body of people outside in the regions. I believe that then we would have had a very different debate about the Bill, because some of the issues would have been different.
However, Norfolk, Cornwall and Yorkshire are as different as Scotland, Ireland and Wales and in time there will be no alternative but to develop a different structure for the representation of those children. I hope that we then have coherence with the central commissioner so that such issues as we have debated today do not have to be reconsidered every time a region appoints a commissioner.
I have considerable sympathy with the amendments. They raise the very pertinent question of how the responsibilities exercised by elected regional assemblies in England can best be married up with those exercised by the Children's Commissioner. Without repeating all the extremely well put points about London, I recognise that in London particularly the issues are stark. As the noble Baroness, Lady Thornton, said, there are acute challenges associated with ethnic diversity, poverty and ill health that need to be addressed. This is a very neat way forward.
I support the amendments. I declare an interest as a member of the London Assembly and the Greater London Authority; I hope to be so again after
In moving the amendment, the noble Baroness was careful, and proper, to say that there was no special pleading for London. However, in view of the interests that I have just declared, perhaps I might be forgiven for making a little special pleading for London. The case has been made very well. We have an existing structure of regional government of sorts in London, and we have such aspirations for the rest of the country. I am sure that that will need to be considered when the time comes.
London has a very large population of young people. Not only is it large in number, but, as other Members of the Committee have said, it is very diverse. In inner London more than half the population of young people is from a black or ethnic minority background. The case has been made for particular consideration to be given to London's particular circumstances at present, in the complex structure of governance, the size and, in particular, diversity of the population of young people. We all look forward to the Minister's response.
It is not often that I am called upon to respond to an election address. It went slightly beyond special pleading, but I take the point entirely. The children of London have had some very eloquent advocates speaking on their behalf in the past quarter of an hour. We would not dispute that London is a complex, large, diverse and very challenging community. As the noble Earl said, there are very stark issues involved. The GLA had for three years its own pilot in London of a Children's Rights Commissioner, whose record of listening to children was very successful. We are obviously very pleased about that.
However, the issues raised in the debate apply beyond London. We must reflect on the fact that other communities across the country, although they may not be as large, are certainly as diverse in the nature of their neighbourhoods and the challenges that they pose. When we talk about London in this context, we must reflect that a model for London takes us into the issue of models for other regions.
The noble Baroness made an eloquent case, not for a commissioner—she was very clear about that—but for an assistant commissioner, and explained why. We must be very careful at this stage in the development of the office of Children's Commissioner in the suggestions that we put or the prescriptions that we make to the potential commissioner and his office.
In particular, rural areas, which are sometimes relatively invisible, are no less complex, particularly as regards what they can or cannot offer young people. A serious attempt should be made to ensure that the interests of young people in rural areas are considered. One such young person said to me recently, "It may look like landscape to you; it actually looks very empty to me, when the only thing around is the bus station or the bus stop where I can meet my friends". We need to take that matter seriously.
While we are looking closely at the emerging office of the commissioner, we are on the threshold of some very dynamic development in regional issues and government in this country. I would suggest to the noble Lords that these first months or years may not be the right time to overload the commissioner with a set of new challenges, until the office itself beds down. Having said that, we have had some debate about what is "all children": the inclusivity of the nature of the challenge that he is faced with. My noble friend Baroness Ashton has made it very clear that "all children" means all children in every part of the country. To that extent, while I think we have to be very careful about over-prescription at this stage, we feel the commissioner has to find his or her own ways of working with, and prioritising, issues as the office emerges and develops, notwithstanding these powerful arguments. There is a danger of prescribing something which could turn out to be over-bureaucratic, and we would suddenly find ourselves with an inappropriately complex structure, something that would hinder, rather than enable, him in discharging his duties.
As regards some of the issues that the noble Baroness, Lady Howarth of Breckland, raised, the commissioner has a staff: a non-departmental public body. He is able to delegate the work of his staff, and it may be that he decides some of his staff should look after the interests of children in some of the regions. Whether you call this an office—a commission rather than a commissioner—we may have a debate about. Nevertheless, it will be a non-departmental public body with the capacity to do that. I am keen to make the case that he should have the independence to determine the priorities and how best to use those resources.
The noble Baroness, Lady Thornton, was extremely thorough in Amendment No. 77, having defined the functions of the assistant commissioner in Amendment No. 74, and argued about how to place a duty on the Children's Commissioner with regard to the assistant commissioner's work. If minded to accept her main amendment, we would feel that what she had done in subsequent amendments was perfectly reasonable.
Under the circumstances, however, I invite the noble Baroness to withdraw this amendment at this stage, because it is inappropriate in terms of the development of the office as we see it, for the reasons I have explained.
I thank my noble friend the Minister for her response. I also thank noble Lords for their support, particularly the noble Lord, Lord Tope. As a former chair of the London Labour Party, I am quite used to special pleading on behalf of London, and do not have a problem with doing that.
The problem we face here is that this is going to happen willy-nilly. London's government is not going to wait for the commissioner to take a long time to make their mind up about how to address the needs of London's children. I suspect there will also be debates in other regional assemblies in the making around the country. I accept that one does not want to prescribe how the Children's Commissioner should do his job. However, I would put in a plea that the opportunity to provide the framework in this legislation, allowing there to be co-ordination across the country as regional assemblies exist, should be taken. I would also put a plea in that the department examine whether or not that is possible within this Bill. Even if it is not acceptable to create an assistant commissioner for London at this stage, the position of assistant commissioners—or whatever we call them—to deal with such issues should be addressed.
It is not a competition between the needs of rural children and those of London's children. I am disappointed that we touched on that, because that is not the point. The point is to make sure that children everywhere are properly represented. I suspect that, whatever happens in the elections, the Greater London Assembly and the Mayor will address the problem anyway. We should make sure that it is done without creating confusion for children. I suspect that we will return to the matter, but I beg leave to withdraw the amendment.
moved Amendment No. 75:
After Clause 5, insert the following new clause—
(1) The Children's Commissioner shall—
(a) keep under review the working of Part 1 of this Act and in doing so consult with children and representatives of organisations concerned with children's rights and interests;
(b) make reports on it to the Secretary of State in accordance with the following provisions of this section.
(2) The first report under this section shall be made as soon as practicable after the third anniversary of the coming into force of this Part.
(3) A subsequent report under this section shall be made at such time as the Children's Commissioner thinks fit, not being earlier than three years after the making of the last previous report.
(4) A report under this section—
(a) shall include the views of the Children's Commissioner on the adequacy and effectiveness of this Part; and
(b) may contain recommendations as to amendments to this Part which in the opinion of the Children's Commissioner are necessary or desirable.
The creation of a Children's Commissioner for England has been widely welcomed. Although, as the Minister knows, we hope that the role and powers of the commissioner can be amplified and strengthened in certain ways, Part 1 of the Bill is, nevertheless, a decided step forward for children in England, giving them a powerful listening ear and an equally powerful voice.
The independent organisations that have been in touch with me—the Children's Rights Alliance for England, the Children's Society, the National Children's Bureau, the NSPCC and many others—have pointed to the legislative framework for the Northern Ireland commissioner as the model to aspire to. The functions of the Northern Ireland commissioner include the promotion of the rights and best interests of children; advocacy; assisting and intervening in legal proceedings; reviewing whistle blowing and complaints procedures; and investigating complaints. Alongside that, the commissioner has been granted a range of independent powers. However, the Northern Ireland Assembly understood—as did Parliament—that, even within that strong framework, there was a need for a periodic review of the adequacy and effectiveness of the commissioner's powers. In Amendment No. 75, I propose that there should be provision for such a periodic review for the English commissioner.
In launching the Bill, the Government described the creation of a Children's Commissioner as a "historic first"—I think that those were the words—and we all recognise that the creation of a commissioner carries with it huge expectations, as was said a while ago. Something like 130 organisations concerned with children and young people have campaigned for a children's rights champion and watchdog for over 10 years. It is in everyone's interests, not least those of children but also those of the commissioner himself or herself, to make sure, after an appropriate interval, that we have the kind of effective champion that so many have waited for. I suggest that, in reviewing Part 1 of the Act and making recommendations to government, the commissioner should be required to consult children and representatives of children's organisations. I hope that the Minister will see the virtue of the proposal. I beg to move.
I support the noble Earl's amendment. I hope also that, in conducting the review after the specified period, the commissioner could reflect on the powers that he or she has and the consequences of lacking the powers that he or she has not had, in the light of what is done by the commissioners in the other jurisdictions.
We are having heated debates about the powers and independence of the commissioner, and who knows how the Bill will come out at the end? However, I would be surprised if, at the end of the Bill's passage through both Houses, the new commissioner had exactly the same powers as those in the other three jurisdictions, who all have slightly different powers anyway. I would hope that the review would be conducted in the light of what he or she can do and what he or she might like to be able to do.
I take it that this is a different report from the annual report that one would expect. It is an imaginative addition to the expectation of an annual report that would encourage the commissioner to look at the framework in which he or she is working in a critical and constructive way. That is not always the case when people operate under this sort of arrangement.
I wondered whether a refinement would be to require all the Children's Commissioners to conduct a consultation and a single report at the end of the period, so that they could compare the relative performance under the different legislative requirements that they at present have.
I also cannot resist noticing the regularity that is required of the report. I recall what was said a little earlier today about what had been said in another place about the Welsh commissioner. I think that the regularity will be a reassurance to the Minister. The fact that it is triennial and that the Welsh Children's Commissioner was upbraided, we understand, for producing only one report in three years may cause her some thought. Basically, I think that this is an imaginative idea, which I hope will be taken up.
I, too, support this amendment. I agree that it is an imaginative proposal, which would be very important. If the Minister's proposals go through in their current form, there will be a fair amount of disquiet about the fairly limited powers, which some would call weak, that the commissioner has. To have a specific requirement to make such a report, rather than to have perhaps an expectation that something might be said in an annual report, would be very helpful and reassuring to those of us who still would wish for something stronger.
I entirely understand the thinking behind the noble Earl's amendment. The Children's Commissioner would be ideally placed to provide independent scrutiny of the legislation in consultation with children and the organisations that work with them. But the Government consider this amendment to be unnecessary. Under the Bill, the commissioner can do this anyway.
In response to the comments made by the noble Lord, Lord Elton, if the commissioners decide that they want to do something together, it is my understanding that they can do that. There is nothing to stop them.
I apologise for intervening because it is late. Does the noble Baroness not accept that something that the commissioners publish of their own volonte would have much less weight than something that they had to do because it was required by statute.
No, I do not agree with the noble Lord, Lord Elton, about that. When people do things that they wish to do, in some ways that carries more weight than when they do something that they are required to do. We have had many deliberations today about the question of independence and that the commissioner should determine what the commissioner does. I believe that this is an example where I can honestly say that we are very clear that the commissioner can do this if the commissioner wishes to. That is very important. By formally requesting the commissioner to do that, we would impose a burden that we do not wish to impose on the commissioner.
It is clear, as I have said many times in your Lordships' House, that the focus of the commissioner's work is to talk to children and young people; to look at what they want the commissioner to do; to get their work programme, in a sense, from what children feel is important to children; and to organise the workload of the commissioner as the commissioner sees fit in the light of those deliberations. As an independent children's champion, it must be for the commissioner to determine, in consultation with children, what they are doing, and, in consultation with children and children's organisations, how and when a review of the legislation is relevant and appropriate.
There is nothing to stop the commissioner from doing that. It may well be that the commissioner will wish to do that. The commissioner may wish to do it in consultation or in conjunction with other commissioners. It is entirely up to the commissioner as an independent champion to determine that. On that basis, I hope the noble Earl will feel able to withdraw his amendment.
In the last group of amendments the noble Baroness, Lady Andrews, spoke of the need to let the office of the commissioner "bed down". I do not disagree with that, but someone must take a view on how that bedding down process has worked. There is considerable merit in building in a formal provision for such a review to take place.
The noble Baroness, Lady Ashton, said that the commissioner could do what he or she wanted in regard to conducting a review, but I should have thought that was true only within the legislative framework provided for the commissioner. It is interesting to hear the Minister say that the legislative framework does allow for that, but that begs a number of questions in the context of our earlier debates today about the powers of the commissioner. It also raises questions about the financial provision being made for the commissioner. No review of this kind would be cost free.
In any event, at this hour I shall not pursue the matter further. I thank the Minister for her reply. I shall reflect on what she has said between now and the Report stage. In the mean time, I beg leave to withdraw the amendment.