Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.

Donate to our crowdfunder

Clause 1 - Application of Part V of theCare Standards Act 2000

Children's Commissioner for Wales Bill – in a Public Bill Committee at 11:00 am on 23rd January 2001.

Alert me about debates like this

Photo of Robert Walter Robert Walter Conservative, North Dorset 11:00 am, 23rd January 2001

I beg to move amendment No. 1, in page 1, line 9, leave out `ordinarily'.

Photo of Mr Barry Jones Mr Barry Jones Labour, Alyn and Deeside

With this we may discuss the following amendments: No. 2, in page 1, line 10, leave out `in Wales'.

No. 3, in page 1, line 13, leave out `in Wales'.

No. 4, in page 1, line 19, leave out `in Wales'.

No. 5, in page 1, line 21, leave out `in Wales'.

No. 7, in page 2, line 2, leave out `ordinarily'.

No. 6, in page 2, line 4, leave out `in Wales'.

No. 17, in clause 3, page 2, leave out lines 36 and 37.

No. 18, in page 3, leave out lines 14 to 18.

No. 19, in clause 4, page 3, line 28, leave out from `provided' to `by' in line 29.

No. 20, in page 3, line 32, leave out `in Wales'.

No. 21, in page 3, line 43, leave out `in Wales'.

No. 22, in page 4, line 2, leave out `in Wales'.

No. 23, in page 4, line 10, leave out `in Wales'.

No. 24, in page 4, line 21, leave out `in Wales'.

No. 25, in page 4, line 23, leave out `in Wales'.

No. 26, in page 4, line 26, leave out from `services' to `those' in line 27.

No. 27, in page 4, line 29, leave out from `provided' to `by' in line 30.

No. 28, in page 4, line 33, leave out `in Wales'.

No. 29, in page 4, line 43, leave out `in Wales'.

No. 32, in page 5, line 3, leave out `in Wales'.

No. 33, in page 5, leave out lines 5 and 6.

No. 35, in page 5, leave out lines 26 to 29.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

On a point of order, Mr. Jones. There is an issue of what might be called intelligibility with the amendments that you have announced. I have looked at the amendments closely and tried to see if they make sense in the English language. Amendment No. 1 would make the Act say, ``This Part applies to a child...who is resident.'' In particular, amendment No. 2 seeks to leave out the words ``in Wales'', and would make the Act say, ``to or in respect of whom services are provided by, or on behalf of or under arrangements with, a person mentioned in schedule 2B.'' However, that schedule is entirely about Wales. I cannot therefore see how we can possibly debate the amendments. First, they do not make sense in the English language. Secondly, schedule 2B is entirely about Wales and therefore negates what I take to be the amendments' purpose.

Photo of Mr Barry Jones Mr Barry Jones Labour, Alyn and Deeside

The selection of amendments is a matter for the discretion of the Chair, and it is not the custom of the Chair to give reasons for that selection. If the hon. Gentleman wishes to explore the general principles that govern the selection process, he should refer to pages 405 and 406 of ``Erskine May''.

Photo of Robert Walter Robert Walter Conservative, North Dorset

It is my pleasure to speak to the amendments to clause 1. In doing so, I may deal with some of the points raised by the hon. Member for Bridgend and, I hope, provide him with some clarification.

We tabled the amendments in a positive way. Reference has been made to the reasoned amendment that we tabled on Second Reading, when we said that we had reservations about the Bill. Those reservations relate not to the Children's Commissioner for Wales or to his being empowered in the ways requested by the National Assembly for Wales and a number of charitable and voluntary bodies in Wales, but to some of the Bill's limitations. Hence we tabled the amendments, some of which I shall deal with in a moment.

My position is a positive one. As I mentioned on Second Reading, I was a member of the Select Committee on Health that recommended that we should have a children's rights commissioner for the whole United Kingdom, not only for Wales. Many of our amendments will address that point, while recognising that the Bill relates to the Children's Commissioner for Wales, amending the Care Standards Act that was passed by this House during the previous Session.

We welcome the appointment of Mr. Peter Clarke as the Children's Commissioner. One reason for tabling the amendments, and for wanting to get the Bill out of Committee on the date that has been suggested, is so that he can start work knowing exactly what his brief is. This Committee is minded to keep to the 1 February finish date. Hon. Members may table amendments that will require in-depth discussion, and the Opposition will table further amendments, including amendments to schedules, which tie in with those already tabled.

It is the Committee's function to scrutinise and seek to improve the Bill. We want to take on board some of the comments made by voluntary bodies in Wales on the Children's Commissioner and by the National Assembly for Wales. The National Assembly thought it desirable that the Commissioner's remit should cover non-devolved matters, recognising that such a proposal would be subject to negotiation with the Government. We quoted on Second Reading comments from a number of voluntary bodies, including the Children in Wales Commissioner Campaign Group, which, in one of its reports, stated:

many looked after children ordinarily resident in Wales live in foster homes or residential children's accommodation in England. Young offenders are also in penal institutions on the other side of the border. There is currently no children's hospital in Wales, and children frequently travel to Liverpool or Bristol for specialist treatment...The Commissioner cannot, it would seem, review issues of children's rights affected by the environment, the media or the family, by private bodies or voluntary or religious bodies unless they are providing a relevant service.

It went to point out:

the Commissioner cannot review or monitor or comment on proposed primary legislation—i.e. Bills before Parliament at Westminster.

That particular group believes that the Bill should be amended so that

the Children's Commissioner for Wales has a right to comment on non-devolved matters and cross-border services and a right to comment on primary and potential primary legislation as it affects children in Wales.

On Second Reading, in an intervention on the hon. Member for Cardiff, North, I referred to paragraph 29 of the excellent report of the Health and Social Services Committee of the National Assembly on the Children's Commissioner for Wales, which states:

We have given consideration as to whether the Commissioner's remit should include policy and services that affect children in Wales but for which responsibility has not been devolved to the Assembly, such as the benefit system. We believe that such jurisdiction would be desirable to promote the rights and welfare of children in Wales. The widest possible functions in respect of non-devolved policies and services should be explored and, as a minimum, the Commissioner should be able to consider and make representations in respect of any non-devolved matters affecting children in Wales in a way similar to the Assembly's right under section 33 of the Government of Wales Act, which it can exercise in respect of non-devolved functions. However—

I drew attention to this important point on Second Reading—

we recognise that such a proposal would be subject to negotiation with the UK Government.

Fortunately for the Committee, representatives of the UK Government are sitting in this Committee, and therefore will be able to comment in a moment.

Paragraph 30 states:

We have also given consideration as to whether the Commissioner should have jurisdiction over services provided in England for children normally resident in Wales—`cross-border provision'. Again, we believe that such jurisdiction would be desirable to promote the rights and welfare of children normally resident in Wales, especially in the context of commenting on why the services may not be available here. Therefore we also recommend that the widest possible functions should be explored in respect of cross-border provision, with at least a power similar to the Assembly's under section 33 of the Government of Wales Act but, as with non-devolved issues, recognise that this matter would be subject to negotiation with the UK Government.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

Is it correct that, if, for example, a child in Wales were sent to the Great Ormond Street hospital for children, and there was some abusive incident, the Children's Commissioner could make no comment on the way in which the services to that child were delivered?

Photo of Robert Walter Robert Walter Conservative, North Dorset

That is correct. The services at the Great Ormond Street hospital for children would be funded by the national health service in Wales—over which the Children's Commissioner for Wales would have some remit—but, because those services were provided by a hospital outside Wales, the Children's Commissioner would not be able to comment on or investigate any alleged abuse in that institution. That is why we have proposed this series of amendments.

Most of the amendments to clause 1, starting with amendment No. 1, the first before the Committee, deal with the questions of cross-border provision and non-devolved matters, which is why a number of the amendments delete subsections dealing specifically with Assembly functions, which are not non-devolved matters. As we progress through the Bill we can start to deal with non-devolved matters.

On cross-border matters I hope to be brief, because the point is clear. My hon. Friend the Member for Faversham and Mid-Kent asked about children who are provided with services in England which are funded by authorities in Wales, which come under the jurisdiction of the National Assembly, the national health service being one of them. In other instances, children in care may well be provided for in homes in England. There is also the cross-border problem, which the Minister might like to address, of children from homes where the mother and father live apart, both with custodial responsibilities given to them by the courts, one living in Wales and the other in England. That brings us to whether a child is ordinarily resident in Wales if both parents have joint custody. In those instances, the Bill would result in confusion.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent 11:15 am, 23rd January 2001

If a service were provided in England for which the taxpayer in Wales was not liable—for example, an independent school, to which a number of Welsh children may be sent, which turned out to be abusive—would the Children's Commissioner for Wales not be able to comment on that either?

Photo of Robert Walter Robert Walter Conservative, North Dorset

As the Bill is drafted, the Children's Commissioner would not be able to comment.

Photo of Mr Raymond Powell Mr Raymond Powell Labour, Ogmore

On a point of order, Mr. Jones. Since 10.30 am I have been asking for the window behind me to be closed. I shall leave the Committee until it is closed.

Photo of Mr Barry Jones Mr Barry Jones Labour, Alyn and Deeside

I should be grateful if the hon. Member for Vale of Clwyd (Mr. Ruane) would consider standing on the radiator and attempting to close the window.

Photo of Mr Barry Jones Mr Barry Jones Labour, Alyn and Deeside

That is not a point of order.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I look forward to two imminent by-elections.

I had just taken an intervention from my hon. Friend about services provided in England, Scotland or Northern Ireland for children who are ordinarily resident in Wales. That is why we have tabled the series of amendments, which hon. Members may be forgiven for thinking are repetitive. Amendment No. 1 removes the word ``ordinarily'' from ``ordinarily resident in Wales''. Amendments Nos. 2, 3, 4, 5 and 7, as well as later amendment Nos. 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 32, take out the reference to Wales, which would give the commissioner powers on cross-border issues.

I come now to amendments Nos. 17, 18, 33 and 35 , which look more particularly at non-devolved matters. It might appear that we are limiting the orders that could be made. For example, amendment No. 18, relating to proposed section 72B(6), states:

The Assembly may not make an order under subsection (2) if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions.

We want the commissioner to have powers to exercise his remit where the Assembly does not have functions, so we designed the amendment to delete that subsection.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

Amendment No. 18 would delete clause 3(6). The hon. Gentleman has been party to tabling that amendment, but if the subsection were deleted, the commissioner could not, under the powers in the Government of Wales Act 1998, automatically operate in non-devolved areas. I suspect that it would lead to a hiatus. For the amendment to work properly and the Assembly to act as the hon. Gentleman intends, we would need to amend the Government of Wales Act.

Photo of Robert Walter Robert Walter Conservative, North Dorset

If the hon. Gentleman read some of our later amendments, particularly to clause 3, he would see that we have dealt with that problem by allowing the Secretary of State to lay orders before the House to grant the commissioner the requisite powers in non-devolved matters. We have made provision to allow the Assembly to carry out certain functions with the consent of the Secretary of State, who could make any representations to other members of the Cabinet.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I am conscious that we may be straying out of order, which is why I did not mention the issue earlier. I have the same questions to ask about amendment No. 30, which amends clause 4 and gives order-making powers to the Secretary of State for Wales. I believe that, under the Government of Wales Act, for devolved matters, such powers are vested in the Assembly, so could the Secretary of State assume such powers. Perhaps we should debate that later.

Photo of Robert Walter Robert Walter Conservative, North Dorset

The hon. Gentleman highlights the dilemma before the Committee, which stems from having a Children's Commissioner for Wales whose remit extends only to devolved public bodies. As I said on Second Reading, child abuse is not unique to bodies that are devolved to the National Assembly. It can just as easily occur in non-devolved bodies. Limiting the remit of the Children's Commissioner to devolved bodies does a disservice not only to the concept of a commissioner for children, but to children living in Wales. That is why we tabled the amendments to give the commissioner a remit over non-devolved bodies. The amendments might seem, in isolation, to knock a hole in the Bill, but our amendments to clause 3 fill that hole by giving the Secretary of State powers to make orders, giving the Children's Commissioner power over non-devolved matters.

I hope that the Minister and the Government will be minded to consider those. As I said in my opening remarks, that is exactly what the National Assembly asked for, and that is why the National Assembly's report states:

We recognise that such a proposal would be subject to negotiations with the UK Government.

Obviously, the Assembly has been unsuccessful in those negotiations so far, so it is entirely appropriate that the Opposition should now conduct those negotiations in this Committee in order to give the Children's Commissioner powers over cross-border activities and non-devolved matters.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

I support the thrust of the Opposition's argument. As currently drawn, the Commissioner's role is far too limited to cover all the services and, thereby, the well-being of the children of Wales. For example, why is it considered appropriate that the commissioner system in Northern Ireland can consider non-devolved matters? For example, its first piece of research was into the judicial system as it impacts upon juveniles. Why is it right for that body to do that while the Commissioner in Wales is specifically barred from considering that particular aspect? As has been said, there is no youth prison in Wales and, therefore, detainees will inevitably be kept in England or elsewhere. That is an important matter. Unfortunately abuse does occur in institutions such as that.

Joint custody is another point which should be addressed specifically. There are numerous points here. I do not wish to see holes drilled in the Bill, nor, I think, do the Opposition. There are flaws in the Bill and it is in all our interests to consider them as soon as possible. Some of those were flagged up on Second Reading. The hon. Member for Bridgend thought that my points were too detailed for a Second Reading debate, but I simply sought to enable the Minister and his advisers to give a reasoned and considered response in Committee.

The Minister will know that section 33 of the Government of Wales Act 1998 is an umbrella clause, empowering the Assembly. It states that the Assembly

may consider, and make appropriate representations about, any matter affecting Wales.

That was considered appropriate in the Government of Wales Act, and it would cover the general points that we are considering now as they relate specifically to children and young people. If a similar wording were adopted by the Committee and the Government, the point would be well made. To express the point another way, on Second Reading the Minister said that the Commissioner would be able to comment informally on matters not falling within the devolved powers. But the Minister probably appreciates that a comment made informally on virtually anything of substance will hardly be worth the paper that it is written on.

First, unlike a Minister, the Commissioner would not be able to obtain the evidence from the body concerned in a proper manner. He would not be able to inquire deeply enough into these matters to give a proper response. I say again that he will be gagged.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North 11:30 am, 23rd January 2001

Does the hon. Gentleman agree that, if a person of the Commissioner's standing in Wales made any comment at all about any of the issues to which he refers, they would be treated seriously by anybody considering such issues?

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

It is all very well saying that the hon. Lady is correct, but how do we know? I hope that she is, for the best reasons that she and I believe in, but I have grave reservations about it. There are civil servants and there are civil servants, and there are walls within this place that are impenetrable, and matters will be known on a need-to-know basis each time. Even Ministers are sometimes not fully informed. I am dubious about the whole thing. I hope that she is right and that I am wrong, but wording similar to that in section 33 of the Government of Wales Act could be provided in this Bill, thereby strengthening the commissioner's power, ensuring that he receives the information that he requires, as rapidly as necessary, and that, in due course, he can respond fully, after mature reflection on all the necessary facts, performing his duties in a far better and fuller manner on behalf of the children of Wales. I have flagged up the matter with regard to juveniles and schooling has been mentioned. Plenty of other areas could be considered, but the inclusion in the Bill of wording similar to section 33 would reinforce the commissioner's role immensely and would enable better access to be given, where it is required, in cross-border activities and in reserved matters.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I have been a long-term protagonist of a children's commissioner. My belief, contrary to that of many young people in the UK Children's Parliament, is that it is infinitely better to have a Commissioner than a Minister, because, as we all know, Ministers' responsibilities become tremendously demarcated. If a Minister is given a general responsibility, such as women's matters, the moment something controversial turns up which could conceivably be regarded as part of women's' matters, it is sent off to the junior Minister concerned and is often not properly regarded. I have always supported the idea of a Children's Commissioner, but to make some manifest improvement only in the devolved parts of the United Kingdom is an interesting way to run the nation's affairs. There is a growing feeling among a number of English constituencies and Members of Parliament that we are rapidly becoming second-class citizens and it is high time that something was done about it.

Photo of John Smith John Smith Labour, Vale of Glamorgan

Does the hon. Gentleman recognise that particular circumstances led to the demand for this measure in Wales much sooner than in other parts of the country?

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I am conscious of the fact that the situation in Wales was horrific, and received a huge amount of publicity, but I think that I am right in saying that something like a hundred inquiries are under way in the UK as whole, and heaven forefend that they find anything as horrific as was found in Wales, but one has an uneasy feeling that that may arise.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

Does the hon. Gentleman accept that the reason we are considering the matter today, is because the National Assembly for Wales has made it a major priority and has pressed for the Children's Commissioner? The commissioner is not being given to Wales; the pressure has come from the National Assembly.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

It would have been a leap of imagination, which is possibly beyond Ministers, to have applied the measure to the UK as a whole.

Photo of Chris Ruane Chris Ruane Labour, Vale of Clwyd

The hon. Gentleman mentions that, in England, there are a hundred current inquiries into child abuse. Does it not make sense for those inquiries to run their course and make their recommendations, and then to have a Child Commissioner in the light of those inquiries?

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I understand clearly that the principal motive for the introduction of a Children's Commissioner has been the incidence of child abuse and the desire to prevent that in future as far as possible. I, of course, welcome that, but it as a great pity that the Children's Commissioner may be corralled by public opinion into dealing almost exclusively with child abuse.

The whole point of the commissioner is that he should be able to examine, consider and monitor policies that affect children across the board. As I suggested in an intervention on my hon. Friend the Member for North Dorset, the Children's Commissioner should take a serious interest in matters such as the lack of certain services. For example, in my part of the country, the absence of speech therapy for children is a serious problem. That kind of thing affects children's development and would be a valid matter for comment by the Children's Commissioner.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

Does the hon. Gentleman agree that nothing in the Bill would prevent the Children's Commissioner from commenting on the lack of speech therapists in an area of Wales?

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I am delighted to say that, as far as I can see, that is true. However, from the interventions that we have heard in the Committee so far, I am concerned that there is an assumption that the principal reason for having a commissioner and the principal work of the commissioner will be to deal with child abuse. That is an important function, but I would be sorry if the volume of work thrown up by that became a reason for limiting the activities of the Children's Commissioner, whatever his statutory functions might be.

In favour of the amendments, I must say that the Ministry of Defence has a welcome involvement in young people's activities. That is potentially controversial, but it would be a pity to exclude the Children's Commissioner from commenting on what is provided by the Ministry of Defence. A host of other services are being developed by the Government, including holiday activities for young people. I happen to sit on the working group that is considering that proposal. That kind of thing may have a potential for abuse, but it has, too, a huge potential for developing young people's capacities and improving their attitude to life, so it would be a shame if the Children's Commissioner had no interest in such issues.

There has been a splendid knee-jerk reaction to the idea of having curfews to protect innocent old people from the ravages of young gangs whirling round the inner cities. A great welcome has been given to that idea, but I suspect that it would impinge directly on large numbers of young people, and that few of them have been asked what they think of it. If we are not careful, considerable alienation may grow among thoroughly respectable young people who see no reason why they should be confined to their homes simply because a minority whom the police cannot control—and nobody else can control, either—are behaving badly. That is another issue of young people's rights. If they are not allowed to go to their choir practice or scout group—

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I am sure that the hon. Gentleman is aware that his description of the way in which the curfew will work is completely out of context. The curfew is planned to address issues of great relevance, especially to old people in some areas where they are, in fact, alarmed by groups of youths on the street. The curfew will work in a positive way by providing activities for young children, involving local authorities and other bodies in the area. There seems no reason why the commissioner should not be able to comment on those issues.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I hope that the hon. Lady is correct about that. It is important that the commissioner should do so. These amendments make the point that not only cross-border services for young people in Wales should fall within his purview, but a whole host of services provided by Government Departments that are at present excluded explicitly.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

I agree entirely with the hon. Gentleman and I ask him to cast his mind back to the high-profile case of the alleged sale of two children. I will not comment in detail, as it is sub judice, but once those wardship proceedings have been concluded in the High Court, the commissioner cannot comment on the record about the findings or anything to do with that case because it is a reserve matter under UK adoption law. Does the hon. Gentleman agree that that is entirely unsatisfactory?

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I do. Indeed, my understanding is that the Bill in its present form will create a person or an office that is uniquely forbidden to comment on a judicial verdict. That seems extraordinary. If the Children's Commissioner is already an expert in young people's matters and becomes an even more profound expert, it is bizarre that he or she should be prevented from commenting on a judicial decision that has been commented on by every newspaper, voluntary organisation and so on. I am sure that the Minister will address that point.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party

We are talking about the credibility of the Children's Commissioner. In later amendments we impose on the Children's Commissioner an obligation to consult widely with children on a number of issues. They may voice concerns. If the Children's Commissioner is straitjacketed and has to say that he cannot comment on those areas, the bureaucracy of it all will confuse many young people, particularly if those issues are in the papers daily. They will think that the powers of the Children's Commissioner are somewhat muted and may not then go to him with their concerns.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I may be mistaken, but my understanding is that it is intended that children's commissioners should be easily accessible to young people. If after listening carefully to a cross, angry or simply interested young person, the commissioner must say, ``I'm sorry, but that is not in my remit. I cannot possibly deal with that,'' that is the quickest way of switching young people off completely. I hope that the Minister can reassure us, particularly on the substance of the amendments.

Photo of John Smith John Smith Labour, Vale of Glamorgan

We have had an interesting discussion on the amendments, but we must be careful. We want the Children's Commissioner in Wales to work. That should be our over-riding objective. There is a danger in making the Children's Commissioner a catch-all for everything. We as politicians may be happy that we have created this role, but it may not have the desired effect.

One of the interesting things about making legislation is its unintended consequences. It is far better to have a carefully thought out role for the commissioner that works, even if the commissioner is accused of being limited in power. We have carefully defined the relationship with the Welsh Assembly. We have carefully defined the commissioner's role as regards devolved functions. The stature and credibility of the commissioner succeed all the more because we have thought through that role. That is a much better approach than making the commissioner responsible for all aspects of children's lives—for example, as they impinge on the military, the judicial and penal system and cross-border difficulties. Dealing with everything may well sound good, but a commissioner with limited resources might not be able to carry out all the required functions properly.

A much better solution is to agree with the sentiments and principles expressed, but to stick in practice to a clearly defined role. In Wales, the most horrendous cases of child abuse have taken place in the devolved sector. A commissioner with the resources and authority to intervene and speak out on matters for which he has a clear responsibility will have a far greater impact than a commissioner who comments on almost everything that touches on children's lives. The commissioner's role is likely to be empowered in future through further legislation. Perhaps a commissioner with even greater powers will one day be established in England.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party 11:45 am, 23rd January 2001

Does the hon. Gentleman not accept that this is already the second change to the commissioner's powers? If the provisions are viewed as a continuation and stepping stone—with the powers of the commissioner changing and perhaps different powers being conferred on the children's rights director in England—will not enormous confusion arise? We have a great opportunity to get the Bill right now, and we should take that opportunity.

Photo of John Smith John Smith Labour, Vale of Glamorgan

I believe in good legislation, which is legislation that works. A commissioner in Wales with stature and credibility will be able to comment, albeit informally, on many subjects and will make a great impact.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

On the question of stature, does the hon. Gentleman recall what I said earlier about a high-profile pseudo-adoption case? When all the legal formalities are completed, the commissioner, if invited to comment, will have to say, ``No comment.'' That will do nothing for his credibility or that of his office.

Photo of John Smith John Smith Labour, Vale of Glamorgan

I am not sure that that is right. It is hard to believe that a Children's Commissioner in Wales who possessed the powers in the provisions would fail to express a view, even though it might not be formally expressed. The Assembly would not ignore such opinions and could use its powers to make representations as and when necessary.

Photo of Mr Raymond Powell Mr Raymond Powell Labour, Ogmore

Does my hon. Friend not believe that it is important to examine the commissioner's responsibilities? Would it not better to make him a Minister with full responsibility for children in Wales, so that he was answerable as a Minister rather than as a commissioner—with all the ties that would be placed on his role?

Photo of John Smith John Smith Labour, Vale of Glamorgan

That is a very interesting point. It could be the solution, but it is not what we are supposed to be scrutinising today. In a sense, my hon. Friend reinforces my point. If we are to have a commissioner, not a Minister, he must have real power, real authority and a direct line of accountability to a level of government. Our approach to the problem, even though we are accused of being incremental, is better. A clear relationship between the commissioner and the Assembly, which might subsequently be able to make representations, must be defined. Our approach is better than going all-out for everything and failing.

Photo of Robert Walter Robert Walter Conservative, North Dorset

To answer the hon. Gentleman's suggestion that the commissioner could comment on other bodies, I refer him to proposed clause 72B(6) which our amendment No. 18 would delete. It says:

The Assembly may not make an order under subsection (2) if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions.

Therefore, the Assembly is specifically precluded from giving him the power to look at bodies over which it does not have power.

Photo of John Smith John Smith Labour, Vale of Glamorgan

That is a slightly different point which concerns bodies and the possibility of intervening. I am referring to what goes on in the real world—realpolitik. Will the commissioner comment? My experience in politics tells me that there is no way that a commissioner will not have a view, even though he may not have the statutory right to express that view.

I am worried that, in our sincere attempts to get the Bill right first time, we may fail. There are no clear lines of accountability and demarcation in the proposals. I would worry about a commissioner who at one moment was answerable to the Secretary of State for Defence and at another was answerable to the Home Secretary or the Lord Chancellor. I would much prefer a commissioner with a clear relationship and clear line of accountability to the Welsh Assembly. That would work and would be best for Wales and the future and may well be better for England.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

It is certainly my party's view that the independent Children's Commissioner should definitely have statutory powers, some of which are in the Bill. In the context of the amendments under discussion, they should be seen in the views of the Assembly's Health and Social Services Committee. After all, it took a lot of evidence from a wide range of children's interests, such as the NSPCC, Children in Wales and Barnados. The consensus across the parties was that the Children's Commissioner should promote children's rights, represent the views of children and young people up to the age of 18, ensure that effective advocacy systems were in place, undertake formal investigations if there wa evidence of a systematic breach of children's rights and have the power to require disclosure of information. We should discuss the amendments in that context.

The amendments seek to address non-devolved issues. However, most of the amendments, some of which are very specific, take the word ``Wales'' out of the Bill. Conservative Members are trying to achieve influence over non-devolved aspects, but that is a long-winded way of achieving their aims. Amendment No. 42, which we may consider later if I catch your eye, Mr. Jones, incorporates in one fell swoop all the amendments tabled by them.

Photo of Mr Barry Jones Mr Barry Jones Labour, Alyn and Deeside

Order. Is the hon. Gentleman suggesting that he will seek to catch my eye later?

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

I will indeed, Mr. Jones.

There is much good will behind the amendments which have been tabled. I was particularly pleased to hear the hon. Gentleman whose Christian name and surname I know, but whose constituency in Kent escapes me.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

Indeed. The hon. Gentleman has a fine track record on the care of children and children's interests.

Cross-border provisions and powers on schooling, homes, courts and children in penal institutions are vital. Such provisions should be incorporated in one amendment which improves the Bill, rather than dealt with piecemeal as the amendments have been this morning.

Legislation is undoubtedly required in England. I suggest that some of the amendments probe in that direction. I can see the need for a children's commissioner in England. However, the Bill addresses the subject of the Children's Commissioner for Wales. As many hon. Members have mentioned, the Bill results from great concern about the Waterhouse report and many other issues in Wales. The matter is urgent.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party

Does the hon. Gentleman accept that, although the appalling report that came out last year pushed the legislation forward, we should be talking not about institutions or bureaucracy, but about children? Children should be equally protected by the law of this country, whether they reside in Wales or England.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

I agree with the hon. Gentleman's sentiments. Children's rights are crucial, as are consultation with, and the participation of, children. Children actually took part in the appointment of the new Children's Commissioner, Mr. Peter Clarke. We must also recognise that the need for a Children's Commissioner in Wales has arisen because of specific problems in Wales. Through the good offices of Government and the good will of Opposition parties, we have been able to introduce the Bill. It will be a precursor to a Bill in England, where the need is equally great.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party

The hon. Gentleman mentions the specific problems that existed in Wales. If they were only specific to Wales I could understand that; but, as my hon. Friend the Member for Faversham and Mid-Kent said, a hundred inquiries are taking place throughout the United Kingdom, the vast majority of them in England, and, therefore, because of the necessity for the Bill in Wales, a similar Bill is necessary in England.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

I totally agree with the hon. Gentleman. We must all campaign for that to happen in England in this Westminster Parliament. It will only be a short time before that occurs. In the meantime, we are in the middle of devising a Bill proposing a children's commissioner for Wales. I believe that it is possible to have amendments that cover most of the objectives that the hon. Gentleman would wish to see. I am sure that, before long, a Bill setting up a children's commissioner for England will be introduced.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I welcome the cross-party support for the Children's Commissioner. I hope that we will have constructive discussions in Committee, because this is an important development.

The Committee must not go away with the impression that this is a limited Bill. We are widely expanding the scope of the Bill beyond the Care Standards Act 2000 remit, which concentrated on children who were subject to abuse and looked at general social services. The schedule to this Bill shows the aspects that will be subject to review, including the national park authority, the Arts Council of Wales, the Care Council for Wales and the Countryside Council for Wales.

The thinking behind the Bill is that the Children's Commissioner will be an advocate who will consider the children who are going about their ordinary lives in Wales. The commissioner's remit has been extended beyond that applying under the Care Standards Act. It is important to remember that at this stage.

It is inconceivable that a young person in a desperate situation in a penal institution in Wales who turned to the Children's Commissioner would be told that the commissioner was not responsible for that penal institution and had to refer him or her somewhere else. I cannot imagine any circumstances in which that would happen. It would be useful if my hon. Friend the Minister would clarify that. We have to look at these matters with common sense. A person in Mr. Peter Clarke's position is not likely to say to a desperate young person, ``I am sending you away to someone else.''

Photo of Robert Walter Robert Walter Conservative, North Dorset 12:00 pm, 23rd January 2001

Does the hon. Lady agree that, given the functions of the House, including Home Office functions, if similar legislation were proposed in England the children's commissioner for England might have statutory powers over children in penal institutions whereas the Children's Commissioner for Wales would not?

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

We are now looking at the Children's Commissioner for Wales and trying to find a way to ensure that his role extends to all children in Wales. I cannot foresee a situation arising where the Children's Commissioner, who will act for the good of all the children in Wales, will not have a way of dealing with children who are desperately seeking help—wherever they are, whatever system they are in. I hope that my hon. Friend the Minister will respond on that point.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

I should like to look at this matter from the other end. It is not that I am afraid that the commissioner might refuse to speak to a young person because a matter was somehow outside his remit. I am more concerned about what happens when the commissioner decides to comment on something about which he is in sharp disagreement with the Government. If the matter were outside his remit, the Government could say, ``That has nothing to do with you. You may not publish your comments on the issue.'' That is an important matter.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

It is possible that the Children's Commissioner will be in sharp disagreement with the Government on issues. The whole point of having an independent children's commissioner—rather than a children's Minister—is to have someone who is independent and outside the system and would in no way be influenced by the Government. We have set up that system here. How children and young people in the system access help from the Children's Commissioner is an important matter, and it is important to hear what my hon. Friend the Minister has to say.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

The hon. Lady, from her experience as a Member, will have seen many letters from the local authority ombudsman to constituents. Many of them have had a very rough time, but for some small technical reason they do not fall within the statutory remit of the ombudsman. The ombudsman's letter says, ``I am desperately sorry for you, Mr. and Mrs. Jones, but there is nothing I can do.'' That is what we are concerned about.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I agree. Because we are dealing with children and young people and, in the case of Wales, with a background in which horrific things have occurred, where children have spoken out and no notice has been taken of them, this issue must be covered.

People and voluntary bodies in Wales and the National Assembly for Wales believe that the Children's Commissioner should cover all children as they go about their ordinary activities, not just when they are in institutions or subject to the care system. For example, the hon. Member for Faversham and Mid-Kent mentioned speech therapy, which is a devolved matter. We hope that the Children's Commissioner will be keen to comment on such matters and to make strong and effective points about the lack of local authority and health provision.

The Committee should remember that it was a Labour party pledge before the National Assembly elections and even before the Waterhouse report that there would be a Children's Commissioner for Wales.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

We have had a fruitful and interesting discussion on the amendments. I hope to explain the Government's thinking on the issues raised and to assure hon. Members of our sympathy for some of the views expressed.

The hon. Members for Meirionnydd Nant Conwy, for Faversham and Mid-Kent, for North Dorset, for Brecon and Radnorshire and for North Dorset and my hon. Friends the Members for Vale of Glamorgan and for Cardiff, North made interesting contributions to the debate. I shall cover in detail their points about the role of the Children's Commissioner, the Government's intentions for England, jurisdiction over non-devolved issues and cross-border issues.

I join the hon. Member for North Dorset in welcoming Peter Clarke to his post. The hon. Gentleman expressed the official Opposition's view, with which we agree, that Mr. Clarke should start work with a full brief and full legal backing. We acted quickly in tabling amendments to the Care Standards Act 2000 following the Waterhouse inquiry and in including the Bill in the Queen's speech. I am pleased that the hon. Gentleman shares our objectives.

A children's commissioner in England was the central theme of the hon. Member for Faversham and Mid-Kent and other Opposition Members. As we said on Second Reading, my right hon. Friend the Secretary of State for Wales and I recognise that there are anxieties about the children's commissioner in England. It is inherent in the devolution settlement that different parts of the United Kingdom will develop different policy frameworks on some issues. That is natural as part of devolution and should be encouraged.

The Waterhouse report, published in February last year, made specific recommendations about a Children's Commissioner for Wales and the Government acted speedily to meet that objective. There may difficulties in the Committee in that respect, but that is the nature of politics. Differences of approach within the United Kingdom should not be regarded as a problem; they represent the successful working of the new constitutional settlement.

I have taken note of calls in Committee and on Second Reading for a children's commissioner in England and will bring them to the attention of my ministerial colleagues. As I said on Second Reading, the Government will carefully consider the Welsh experience. We may have lessons to learn from Wales that can be applied to England.

The Care Standards Act 2000 makes provision for a children's rights director in England: it was first established in the ``Modernising Social Services'' White Paper of November 1998.

The Care Standards Act is important to our discussions, as it established that senior post in the national Care Standards Commission. Its core task will be to help the national Care Standards Commission to give full and effective advice on children's services in England. It will ensure that the views of children are placed before the Care Standards Commission. The post will report directly to the chief inspector of social services, so that significant evidence can be presented on issues affecting the rights and safety of children.

The Government have previously signalled their intention to consult widely on the key tasks and responsibilities of the children's rights director in England. We are planning to publish later this year, via the Department of Health, draft regulations covering the work of the children's rights director in England. There will be public consultation, during which these issues will no doubt be raised.

Photo of Robert Walter Robert Walter Conservative, North Dorset

If I understand the Minister and the Care Standards Act correctly, the remit of the children's rights director in England will be much more limited than that of the Children's Commissioner in Wales. The children's rights director will cover children in care and at risk, and possibly children in the NHS.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

The hon. Gentleman is correct. I referred to the Care Standards Act to show that, as a result of devolution, the consideration given to this matter by the Assembly and the recommendations in the Waterhouse report in Wales, the Government have responded positively and have made progress on a Children's Commissioner. However, the position with regard to England is that we still have to tackle some of the issues and concerns that hon. Members have raised. I repeat that the Government will consider the Welsh experience very carefully to see whether lessons can be learned for England as a result of the proposals and the operation of the Children's Commissioner in Wales.

The Bill introduces specific proposals for Wales. It is the outcome of the consultation process and policy development in Wales, which went on before and after the Waterhouse report, and it would not be appropriate to extend the commissioner's functions to England by means of these amendments. Although I accept what the hon. Gentleman has said, the six amendments would remove references to ``in Wales'' so as to extend the role of the Children's Commissioner to cover England as well as Wales. That would subvert by the back door the long policy discussions that have taken place in Wales, which have resulted in the Bill that we are debating today.

I hope that I have covered the points raised. We can come back to this issue, but I assure hon. Members that my colleagues will examine the commissioner's operation in Wales, and will consider what lessons can be learned from that. I hope that I have allayed hon. Members' fears.

The second major issue that has arisen from the debate is the question of non-devolved functions. I hope that it will allay the concerns expressed by hon. Members if I put on the record the fact that the Government are entirely sympathetic to the objective of making the commissioner a wide-ranging champion of children's rights in Wales. That is why the Bill provides that one of the commissioner's principal aims is

to safeguard and promote the rights and welfare of children.

It is also why the Government have given the office such a wide remit across services in Wales that directly and indirectly affect the lives of young people and children.

As my hon. Friend the Member for Cardiff, North said, the Bill is about dramatically extending the powers and functions of the Children's Commissioner over the current powers contained in the Care Standards Act. I strongly echo that view, and commend it to the Committee and to children's organisations. The Bill will ensure that the commissioner's activity ranges across health, education, social services, transport, planning and housing—to name but a few areas. I do not think that there is a danger of the commissioner having little work to do. The Bill will extend the range of issues that the commissioner will cover.

I shall give the background to our approach, so I hope that hon. Members will bear with me. We need to keep the commissioner's role in context. The commissioner is a creation of the National Assembly for Wales in that the areas that we are giving him powers to examine are areas for which the Assembly has responsibility. It has led the way in the UK for the development of a Children's Commissioner. The Government are happy to give support by legislating to help the Assembly to realise its vision. However, I emphasise that the commissioner's office is a development specific to the Assembly. Despite what hon. Members have said, the Government and I strongly believe that it is right for the scope of the commissioner's powers to coincide with activities and bodies that fall within the National Assembly's areas of responsibility. That is not to say that we cannot consider some of the wider issues raised by hon. Members today.

As my right hon. Friend the Secretary of State made clear on Second Reading, the Children's Commissioner for Wales will in no way, shape or form be gagged on any issue that falls within the terms of non-devolved matters. The commissioner will have the power to exercise functions that are incidental to the core functions, but the core functions must remain those that fall within the Assembly's competence.

Photo of Robert Walter Robert Walter Conservative, North Dorset 12:15 pm, 23rd January 2001

I refer again to clause 3(6), which is the subject of our amendment No. 18. It says:

The Assembly may not make an order...if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions.

That subsection seems to preclude the commissioner from being able even to review another body's function.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

It may be helpful if I explain that the commissioner may in the course of his work receive representations from children and others about non-devolved matters. He may want to bring those issues to the attention of UK Departments. In doing so, he could add his informal comments on those issues. It is correct to say that they would be informal comments, but the commissioner is not, in my view, debarred from commenting on non-devolved issues. However, he is bound not to have a statutory function in that context.

We are not giving the commissioner substantive functions in non-devolved areas. He will not have the formal power to require information from bodies in relation to such matters. However, he can make comments. As my hon. Friend the Member for Cardiff, North said, it would be strange if the UK Government did not respond positively to those concerns. I feel strongly that UK Departments would be likely to react positively, given the profile of the commissioner's office.

Another important point relates to that made about section 33(1) of the Government of Wales Act 1998. The commissioner will be able formally to bring to the National Assembly's attention complaints and information that he receives about non-devolved matters. The framework for that can be established in due course through Assembly regulations. The commissioner will make an annual report to the Assembly on his activities, so the Assembly may wish to raise general issues about non-devolved matters with the UK Government, using its powers under section 33(1) of the 1998 Act.

I recognise the concerns that have been expressed, but I hope that I have allayed hon. Members' fears. The commissioner will have the opportunity to make comments, should he so wish. Those comments will not have statutory backing, and the commissioner will not have the statutory right to secure information, but he will be able to make comments, the Government can listen to them and the Assembly can take those comments forward.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons), Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport)

The Minister said that there was good will on both sides of the Committee. Clearly there is good will, but there seems also to be optimism from Labour Members, because the Minister says that, given the commissioner's stature, any Department will respond urgently and properly to his request. Does he know that it takes nine months to a year to get a response from the Wales Office to a parliamentary Select Committee report on Welsh affairs?

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

In the spirit of cross-party co-operation, I take on board the points that the hon. Gentleman has made. The Secretary of State and I will try to respond quickly to many of the issues raised. I do not know to which report he refers, but I am sure that the response is in the post, as they say.

I am trying to put the issue in context, so that hon. Members know that the Children's Commissioner may, without statutory backing, examine issues and, if appropriate, make representations and comments to Government, and/or feed them through to the Assembly.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

The general tenor of the Minister's remarks is reassuring. However, I am concerned that when the commissioner responds to young people's concerns, his view will inevitably at times be in sharp disagreement with Government policy. It is his inability to make formal comment on those issues that lies at the heart of my anxiety.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

There will be an opportunity for informal comment, and the commissioner may make recommendations to the Assembly, which may consider whether to support those recommendations by formally using its powers to make representations. The commissioner is independent of the Assembly, so he may even criticise Assembly policy. That is part of the nature of his business, and we have been keen to secure that wide-ranging role for him.

Hon. Members have focused on child abuse aspects of the commissioner's role. They are important, and the commissioner will want to take an interest in key issues about the specifics of child abuse. We should not forget that he has an important role in ensuring that child protection mechanisms are working properly, but he cannot replace the existing statutory child protection agencies. He may take an interest in the implication of child abuse cases, but he is not in the business of replacing statutory agencies such as the social service inspectorate in Wales. That role was considered and examined by the Waterhouse report but, in establishing so quickly the post of commissioner, it has never been the intention of the Assembly or the Government for him to have a narrow child protection focus. He should consider wide issues and raise points generally.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

Given that the Assembly, under section 33 of the Government of Wales Act 1998, is able to

consider, and make appropriate representations,

surely the commissioner should have the same ability? Although there is a lot of good will in what the Minister says, there is a hint that the effectiveness of the commissioner will be limited. Perhaps the commissioner could consider matters not within the purview of the Assembly that could affect children directly, such as Home Office or social security matters.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

I reiterate the point that I made earlier. We need to keep the role of the commissioner in context; he is the creation of the Assembly, which has prime responsibility for a range of issues, such as health, education, social services, housing and local government. Within that purview, he will have direct responsibilities under the Bill to take action. He will have the opportunity to comment to Government Departments, if a case is brought to his attention on a non-devolved issue, or if lessons are learned as part of the overall review of individual or general issues. He may also make comments to the Assembly, which can consider them. I hope that the Government's intentions and objectives are clear.

The third issue mentioned was cross-border matters, which is obviously important. Several hon. Members asked whether the commission will have jurisdiction over services provided in England for children who are ordinarily resident in Wales. The Opposition's amendments are, I suspect, designed to tease out the commissioner's roles and responsibilities in cross-border issues.

Although the commissioner's jurisdiction under the Care Standards Act 2000 and the Bill does not extend to services, he will be able to review the actions of public bodies covered by the Bill in arranging for services to be provided outside Wales. For example, the commissioner's remit extends to a decision by, say, Denbighshire county council to provide a place for a child in a children's home in, say, Cheshire, outside Wales. The county council has a responsibility as the funding body, and if difficulties were experienced with the children's home in Cheshire, Denbighshire county council and its policy decisions in placing the child would be accountable to the statutory bodies in the National Assembly's framework, and to the commissioner, who would review the placement and the policy objectives.

The same policy would be operable with regard to the hospital in Manchester that has been mentioned. The commissioner would have a responsibility to examine the policy implications of a health authority or trust responsible to the Assembly in Wales that arranges for medical treatment outside Wales. An element of examination, jurisdiction and accountability is involved in such issues.

Photo of Robert Walter Robert Walter Conservative, North Dorset

The Minister says that if a child who is resident in Wales is sent to a hospital in England, the commissioner will be able to review that decision in light of the evidence. How will the commissioner come by that evidence? Will he have the power to visit, for example, Great Ormond Street hospital and question its officials, who work for the national health service not in Wales but in England, on hospital policy?

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

The commissioner will have the power to question the funding authority responsible for that decision. In such circumstances, the funding authority would be the national health service in Wales—the trust or the health authority that took the decision to pay for that treatment by another organisation. As in the case of non-devolved issues and the relationship with the Department of Health, services provided by an agency in England may raise issues to which the commissioner can refer in discussions with the National Assembly and the trust involved and in representations to the Department of Health.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

We must bear in mind the fact that supervisory bodies are already established for the quality and efficacy of public services. The NHS has the National Institute for Clinical Excellence. Presumably, if a child's parents reported an incident in an English hospital to the Children's Commissioner following the procedure that my hon. Friend has outlined, the commissioner could approach the trust or health authority in Wales, which could, in a quite proper and institutional manner given the supervision already established, inquire through NICE about what has happened. The Children's Commissioner for Wales could remain on top of the investigation by maintaining close contact with all those who already have a statutory duty to ensure that children treated by the national health service receive the appropriate treatment.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

My hon. Friend speaks with the experience of a former Minister in the Welsh Office. He highlights the type of relationship that exists. As I have said, the role of the commissioner is not to supplant existing regulatory functions in England and Wales. The relationship outlined with regard to cross-border issues shows that there is accountability and a system to review the policy and practices of funding bodies in taking decisions to extend individual services on a cross-border basis. I hope the commissioner will be able to play a full role in examining those issues, if they are brought to his or her attention.

The hon. Member for Faversham and Mid-Kent raised the matter of independent schools. The functions of public bodies are already regulated by Government, so it is a natural extension for the commissioner to have jurisdiction over public bodies. The ombudsman's role is generally restricted to the public sector and to bodies carrying out public service. Therefore, the commissioner will have no direct jurisdiction in similar circumstances, because that will be the responsibility of the parents who have chosen to send their child to an independent school.

As my hon. Friend the Member for Bridgend said, independent schools are regulated by existing bodies responsible for child protection and other issues. The commissioner has no direct responsibility for the parental choice exercised by sending a child to an independent school. However, should an educational authority in Wales choose to purchase provision in an independent school in England for a particular person, perhaps for special needs services, the authority's decision, or the policy decisions behind that, could come under the commissioner's jurisdiction.

Photo of Mr Richard Livsey Mr Richard Livsey Liberal Democrat, Brecon and Radnorshire

I visited a special needs school in my constituency last Friday, and was amazed to learn that one of the children was placed in a special needs school in Scotland. Could the Minister bear that in mind? I am not asking for an immediate response, but I was amazed that such a situation had arisen in my own constituency, and it is probably replicated elsewhere.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

We have a knotty double devolution problem to contend with, and it is probably best that we investigate that aspect. However, the principle is the same. If the Powys authority chooses to purchase provision in Scotland for an individual ordinarily resident in Powys, the commissioner can, and should, if appropriately approached, consider the general and specific policy implications of that decision.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I am hopeful that the Committee will tease out from the Minister the correct answer, as this point has now been made in several different ways.

What is the commissioner's role in individual cases? The Minister referred to policy implications, but we are considering individual cases. When I was a member of the Select Committee on Health, we examined the issue of children in care. Local authorities were using foster carers who lived considerable distances from the authority's jurisdiction, and as a result there was considerable disquiet about the fact that foster carers lacked supervision. We had individual cases of foster parents not doing their job properly. What would the commissioner be able to do if a child was resident in Wales and paid for by a Welsh public body, but was being cared for in England? We are concerned about individual cases, not the policy implications. Would the commissioner take it upon himself to travel to England to investigate such cases?

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

As I said earlier, in creating the role of Children's Commissioner and in seeking the support of the House to give that role powers, the National Assembly has made it clear that it does not anticipate the commissioner investigating individual cases as a matter of routine, but only when an important point of principle is involved. The commissioner will not supplant existing regulatory or supervisory bodies in England and Wales, but will act as a champion of children. He or she can examine policy implications and may draw on individual cases brought to his or her attention, but will not routinely investigate or act on such cases. He or she will look at broad policy obligations or commitments and make general comments about the level, support and type of service provided. Although the commissioner will have the power to examine cases in which a local authority may purchase a service across the border, the Assembly's vision is that he or she will not do so routinely or investigate specific cases in the regulated services in Wales.

That leads me to the point made by the hon. Member for North Dorset about the possibility of parents having a shared responsibility if one parent is in England and one in Wales. Again, I emphasise that the National Assembly does not anticipate the commissioner routinely examining individual cases, but if he or she wished to investigate such a case he or she would have to consider the term ``ordinarily resident'' in the specific circumstances and how that may be defined by other legislation and interpreted by the courts. There may be a range of issues, such as whether the child is resident in Wales and has a parent living in England or vice versa, but in broad terms the intention is not to investigate specific details: it is to consider the overall objectives of the Departments involved.

Mr. Gray rose—

Photo of James Gray James Gray Conservative, North Wiltshire

It is difficult to keep good men down.

In the context of the definition of ``ordinarily resident'', would the Minister comment on a group of people who are of concern to me in my constituency just over the bridge from Wales? A sizeable number of travellers or gypsies are resident in Wales for half the year and in England for the other half. Whether they are looked after by English institutions in England or Welsh institutions in Wales, to what degree would they come under the control or care of the commissioner?

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

For the first time in this Committee, but perhaps not the last, I undertake to look at that important issue and respond to the hon. Gentleman. I will have to take further advice on the definition of ``travellers'' in relation to ``ordinarily resident''. I do not want to give a glib answer today, although I am sure that I could.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party

As the Minister is in an understanding and compassionate mood, as is his wont, I would like to extend the argument to the children of asylum seekers, who may not ordinarily live in Wales but be placed in Wales for a short time before being placed elsewhere. Would the Minister also undertake to look into that matter? We would all want the children of asylum seekers to be protected by the law.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

I commented on the issue when it was raised by my hon. Friend the Member for Cardiff, North on Second Reading. I suspect—this should not be taken as the definitive answer—that the point that I made then also covers the point raised by the hon. Member for North Wiltshire on travellers. If children receive services in Wales that come under the jurisdiction of the commissioner and are listed in the schedules and the Care Standards Act 2000, the arrangements for complaints, advocacy and whistle-blowing by service providers will also come under the commissioner's jurisdiction. I will reflect on those issues and try to give definitive replies to both hon. Gentlemen in due course.

Photo of Nigel Evans Nigel Evans Vice-Chair, Conservative Party

The Minister referred to services available to children of asylum seekers. The reverse of that is a failure to provide them with services, particularly in education, health and welfare. We seek assurances that they will be looked after, too.

Photo of David Hanson David Hanson The Parliamentary Under-Secretary of State for Wales

I will reflect on those points. I hope that both hon. Gentlemen accept that I will try to be as helpful as I can in Committee, but if there are issues that need to be examined in more detail I will get back to them. I think that I have given an answer that will satisfy them, but I would like to reflect on it with colleagues. If need be I will write to both of them to clarify our intentions.

The internet adoption case was mentioned. That will permeate some of the issues relating to the commissioner's role and responsibilities. First, I should declare an interest: Mr. and Mrs. Kilshaw are my constituents. Obviously, I shall also examine the implications of the case from their perspective. My second interest, which is more relevant, is that my wife, Councillor Margaret Hanson, is the current chair of Flintshire county council social services committee, which is currently involved in the internet adoption case. I thought that I should place that on the record. Any comments that I make as an individual Member of Parliament, as opposed to a Minister, should be considered in the light of those interests.

It is important that we consider two specific issues. First, what would the commissioner's role have been in the internet adoption case? The commissioner would not have had any executive function in the case. That is not his role. The issue of the twins' future may go to court, and it will be for the court to decide. If a court case were pending, it would not be appropriate for the commissioner to comment while the case was in the courts.

Once the legal position has been resolved, and a decision has been taken, the commissioner may wish to consider the merits of an investigation into the action of, for example, Flintshire county council social services department, or any other agency regulated by the Bill, if there were lessons to be learned. The commissioner will not be able to inquire or report into any matter that is the subject of legal proceedings before it has been determined by a court or tribunal. That does not mean that he cannot comment informally on the outcome of court cases in due course. He will not be prevented from investigating issues relating to a court case, once it has been completed. I hope that that puts into context some of the concerns that have been raised by hon. Members this morning.

In conclusion, I hope to receive a positive response from the hon. Member for North Dorset. I hope that I have clarified the Government's position on three issues that were raised by all hon. Members: the role of the Children's Commissioner and the potential development in England; the jurisdiction over non-devolved bodies; the extent and nature of cross-border activities provided under the Bill and the commissioner's interface with them. I hope that hon. Members will reflect on what I have said, and will see that there is sufficient common ground to enable them to withdraw the amendment.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I should like to go back over some of the ground, which can be neatly summarised under three headings—the position in England, non-devolved powers and cross-border issues.

Our amendments would delete the words ``in Wales''. By making the Children's Commissioner responsible across England, they would not necessarily bring about a fundamental change to the Bill. I remind the Minister that clause 8(4) states:

This Act does not extend to Scotland or Northern Ireland,

which implies that it extends to England. It is an England and Wales Bill, so we did not feel constrained about proposing amendments to give the Children's Commissioner a remit to examine cross-border provision and non-devolved matters for which Departments of England and Wales are responsible. That explains the thrust behind many of our amendments.

As a proviso, the force of amendments Nos. 32, 33 and 35 will hang on our later debate on clause 3. We want to add provisions to that clause to allow the Secretary of State to confer powers on the commissioner to examine non-devolved matters. Our formal votes on those provisions will not take place until later. We prefer to reserve judgment on the three amendments until we debate clause 3.

I shall respond to points in the same order as the Minister. What happens in England is not specifically part of the Bill, and our amendments are not designed to make provision for England, but the consequences of those amendments raise questions for the Government about the English question and the role of a children's commissioner for England--and perhaps for the whole of the UK.

As I said in my opening remarks, the Select Committee on Health concluded that there should be a children's rights commissioner for the United Kingdom. This Bill and amendments to the Care Standards Act 2000 were a response to the National Assembly and the Waterhouse report. I implore the Minister to consider similar provisions for England; we should not wait to see how Mr. Clarke gets on as Children's Commissioner for Wales before we take that step forward. Failure to consider our amendments could cause the Children's Commissioner problems.

At present, the children's rights director, as envisioned in England, would simply be an executive officer of the national Care Standards Commission. When that post comes into being, it will have quite limited powers—for example, powers about children in care, children at risk and children subject to social services departments. I am sure that if a children's commissioner for England were to be proposed under similar legislation—this subject also came to light in the comments of other hon. Members—the Committee considering it would not want to limit itself just to those public bodies that would, in Wales, be the subject of the National Assembly. It would want to extend that role beyond local government, the national health service and some of the public bodies whose remit is established by the National Assembly.

I am sure that that Committee would want to give a children's commissioner for England the power to look at Home office functions and children in custody—in the Prison Service or in police stations, which are not covered at all by this measure. It would want to look at immigration. My hon. Friend the Member for Ribble Valley has referred to asylum seekers. Asylum seekers would be covered once they had entered the social services area, but they would not be covered at the point of their coming into this country. The Children's Commissioner for Wales would have no remit over those functions, but I suspect a children's commissioner for England would want such authority.

A children's commissioner for England would want access to other Departments, for example, the Department of Social Security, particularly the Child Support Agency. I am concerned that, if there were a children's commissioner for England, the Children's Commissioner for Wales could have a deficient role.

Photo of Mr Andrew Rowe Mr Andrew Rowe Conservative, Faversham and Mid Kent

The nearest equivalent I can see in the present structure is Her Majesty's Chief Inspector of Prisons for England and Wales. Is not the history of that role a remarkable demonstration of how, if what that person has to say is unattractive to the Government, little happens?

Photo of Robert Walter Robert Walter Conservative, North Dorset

That is absolutely right. I have an establishment in my own constituency that is both a prison and a young offenders' institution. On the last two occasions on which Her Majesty's inspector was there, he was critical of the lack of division between the adult prisoners and the young offenders. I should have thought that the Children's Commissioner would be interested in that subject. I shall discuss the non-devolved matters that are the thrust of our amendments. The Children's Commissioner will not be able to get involved in such Home Office functions in Wales.

There seems to be a lot of hope and good will among Labour Members. As my hon. Friend the Member for Faversham and Mid-Kent said, even when the chief inspector of prisons makes a report on conditions on prisons, little notice is taken by the Government. If the Children's Commissioner made comments in a spirit of good will on an area of policy over which he has specifically been excluded from jurisdiction, would the Home Secretary or head of the Prison Service want to take any notice?

My hon. Friends and I have tabled amendments that extend, by an order made by the Secretary of State, the scope of the Children's Commissioner to look at the Prison Service, any police authority in Wales and custodial questions that particularly relate to children held in custody at police stations. That is an important matter for the Children's Commissioner to look at. We are not seeking to express a pre-judgment on the way in which a police authority looks after children. However, it is important that the way in which children are held in custody is transparent and that there is public confidence that those children are held correctly. That is a major concern of mine.

We should also consider non-devolved matters, such as children in the army cadet force or the air training corps, which would fall within the ambit of the Ministry of Defence. We should also discuss the way in which children are treated in the media. There is no provision in the Bill for the Children's Commissioner to become involved in non-devolved areas such as the Independent Television Commission or the BBC's governing body. We are still concerned about those matters and hope to address them in our amendments.

I hope that I teased from the Minister some response on cross-border matters. Would children in hospitals or care in England, or whose parental custody was split between parents residing in England and Wales, slip through the net if they were resident in Wales and being paid for by Welsh public bodies administered by the Assembly, rather than from the national Exchequer directly? I continue to have concerns about that matter.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

To return to a theme raised by hon. Members, surely in all the specific instances that the hon. Gentleman cited, there is a regulatory framework that should ensure that such cases would not slip through the net. If they did, that is when the commissioner could become involved.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I mentioned, in an intervention which I made on the Minster, the Health Committee's report on children in care. We raised considerable concerns about children who were fostered outside the area of the local authority that was fostering them. There were children from London boroughs, where it is sometimes difficult to get hold of foster carers, who were fostered several hundred miles away. There was a lack of supervision, because those foster carers, although technically under the supervision of that local authority, were not under the supervision of the local authority in the area in which they resided. That concern was not answered, and it is not answered in the Bill.

It being One o'clock, the Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.