I remind the Committee that with this we are taking new clause 4—Right of access to institutions—
`( ) In section 74(3) of the Care Standards Act 2000 (examination of cases) before paragraph (a) insert—
(a1) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies;.'.
I am delighted to welcome you back to the Chair, Mr. Wells.
When the Committee adjourned, I was in full flow and about to deal with the commissioner's ability to initiate inquiries into matters of public concern, which, without the new clause, might be restricted. If, for example, the Secretary of State for Health had not decided to initiate an inquiry into the circumstances surrounding Anna Climbie's tragic death, and if that death had occurred in Wales and the National Assembly had decided not to initiate an inquiry, under current legislation would the Children's Commissioner have been able to initiate an inquiry of his own, despite the case having already been subject to legal proceedings? I ask the Minister to reflect upon that, or whether section 77 of the Care Standards Act would apply in such a case.
A more diffuse issue relating to the commissioner's ability to inquire into matters where there may be related or other legal proceedings is exemplified by the inquiry into alleged child abuse in north Wales. In similar circumstances, would there be restrictions upon the commissioner's ability to inquire into all aspects of alleged abuse if one or more of the alleged abusers were subject to legal proceedings, of if they had been convicted of abuse within the scope of an inquiry, such as the Waterhouse inquiry?
The first recommendation of the Waterhouse inquiry was the appointment of a children's commissioner to act swiftly in dealing with allegations of child abuse. Would the Care Standards Act prevent the commissioner from making such inquiries on behalf of children if legal proceedings were under way connected with at least some of the people involved in the allegations of child abuse?
I have made inquiries with the Library. It is standard practice that ombudsmen cannot make inquiries in a large number of areas where options are already available for people to obtain redress. However, looking at the English local government's ombudsman's rules, there is a let-out in that, if there is a good reason why someone may not reasonably be expected to follow some other procedure laid down in law, he could still appeal to the ombudsman. Would that sort of let-out allow the Children's Commissioner to consider cases that have such legal and tribunal parameters, which would usually prevent him from carrying out an investigation? As in the case of the English local government ombudsman, could the Children's Commissioner consider whether that would be reasonable?
New clause 4 is designed to ensure that the Children's Commissioner has the right of entry into children's institutions and can obtain all the information that he requires from such institutions if he is conducting an inquiry relating to children. At present, under the Care Standards Act, he would be denied such access. Our amendment would add to section 74(3) of that Act the words:
``(a1) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies''.
Does the Bill gives the commissioner that untrammelled right of entry and questioning, or are there some areas where the Government believe that that is not appropriate? If so, the issues raised by new clause 4 deserve to be examined in detail.
I anticipate that in virtually every case the commissioner would gain access to an institution caring for or involved with children and obtain the information from the people responsible without any trouble. But as the law stands, if the people in an institution want to be less than helpful, that right of access and right to information would not be granted because they would have the right to say, ``Sorry, you cannot come in here.'' The right that I am talking about is common to children's ombudsmen in other European countries. I hope that my hon. Friend will give a positive response on the issues that I have raised in new clauses 3 and 4.
It is good to see you here this afternoon, Mr. Wells.
New clause 3 deals with the right of the commissioner to comment on court decisions. That that is not possible at the moment is incompatible with the fact that the commissioner is a children's champion. That is serious as such matters can adversely affect children in Wales.
New clause 4 deals with the right of access to institutions. There has been a serious development recently in the lower courts with a court ruling that children's advocates, who speak for children who are unable to speak for themselves, may not work with children who are subject to any legal proceedings. That is extremely serious. A child with learning difficulties might have misbehaved or even committed a minor offence. He might be unable to respond adequately in a court and yet he could not now have an advocate to assist him. In Wales, we do not have adequate resources to detain children. Children—youths—can end up in jail, where the commissioner may not be able to visit them.
I have a case in my constituency at the moment, which reflects what I have said. I cannot give any details, but it involves a young person with learning difficulties, who has found himself in a similar situation. I wish that the Children's Commissioner already had the powers contained in these two new clauses to strengthen his ability to assist in such a situation.
I wholeheartedly support new clauses 3 and 4. In certain circumstances, the commissioner needs to be able to comment on court decisions or to obtain access to institutions where children are detained, and may, because of their situation, be adversely affected by their detainment.
I, too, welcome you to the chair this afternoon, Mr. Wells.
Most of the arguments have already been put. I agree with the hon. Members for Bridgend (Mr. Griffiths) and for Brecon and Radnorshire (Mr. Livsey). The wording of the clause it is quite peculiar. It states:
``the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by,''— the operative words in the amendment—``a court or tribunal.'' No one inside or outside the House would argue that the sub judice principle is not perfectly sensible and should not be upheld. However, there is no argument for precluding proper detailed comments on, and investigation into, matters that have already been decided.
The hon. Member for Bridgend asked whether the commissioner would have been prevented from commenting on the awful events dealt with in the Waterhouse report because many of those involved had been the subject of proceedings. A number of people in my chambers in Chester spent three or four years prosecuting those evil people. If—God forbid—such a tragedy were to be repeated, I am afraid that the commissioner would be gagged from taking any part in the proceedings, and that is astonishing.
The Waterhouse inquiry, conducted thoroughly by Sir Ronald Waterhouse and the other members of the panel, came to the firm conclusion early on in its recommendations that a commissioner was necessary. There is no mention in the recommendations of judicial proceedings, but, looking at the spirit of what was recommended, I am sure that the inquiry would not have wished the commissioner to have been denied access to decided cases. There are two good reasons for that. First under our present constitution, laws appertaining to children, and anyone else for that matter, are made by the House and by the National Assembly. Secondly, case law precedents develop the law, and decided cases are important. In some areas of family law, they are more important than the actual statute itself. Many decided cases of family law completely change the situation. I will not bore the Committee with examples, but family law can be quite radical. Laws can suddenly be changed on the strength of a Court of Appeal of a House of Lords decision. The commissioner will not be able to feed into that.
None of us want a repeat of the awful events that gave rise to the Waterhouse inquiry, but, human nature being what it is, and given what we read about some of these paedophile rings, there is more to come throughout Wales, I hope not to the same degree, but who knows? We will have a commissioner who will have to say, `I'm sorry, but I cannot comment on that, because one of the number has been prosecuted for a sexual offence.' That is not adequate, and will reflect badly on his office and all who work in it. It will hamper the commissioner in his duties, and I am concerned about that.
The hon. Member for Bridgend said that Children in Wales feels strongly about the matter, and he mentioned the various constituent bodies of Children in Wales. They have worked hard during the passage of the Bill, and previously in lobbying the Assembly, and they were the first to flag up the need for a commissioner. Please can we take heed of their expert advice and opinions? Those people are at the coalface, dealing with children, whether they be in care, in private accommodation or in the public sphere. They know what they are talking about, and they feel strongly about this.
We have previously mentioned the two unfortunate young children from America, who were allegedly bought. I feel awful using that word. There was the high profile murder of young Damilola Taylor and the Bulger case, involving the two boys, one of whose parents allegedly live in north Wales, not that that matters. We have high profile cases involving young children in various spheres, whether in the criminal or the civil courts, and it is ridiculous that the commissioner cannot make comments. Everyone and his brother will be making comments to the press, and it would be unacceptable if an invitation to the expert on children's welfare to comment were to meet with the response, `I am sorry, that does not come within my remit. I cannot comment on anything that has been decided in a court of law.' That will doubtless hamper the commissioner. We are not playing politics with this subject. The new clause has the support of the Liberal Democrats and it was tabled by the hon. Member for Bridgend and his colleagues. I fully support the new clause and I believe that the Government are wrong. I urge the Minister to rethink even at this late stage, and to go back and consider it further for another time.
Curiously, the first thing that the Northern Ireland commissioner did was to investigate the judicial process in the north of Ireland as it impinges on children. Why is there a difference between the way that that commissioner can act and the way in which the Children's Commissioner for Wales would be precluded from considering such an investigation?
New clause 4 is also important. It would ensure that the commissioner has the proper access to various bodies that he requires to carry out his work efficiently. We have heard that he will be entitled to make informal comments. If I hear that a Department or an official body has made informal comments, I often switch off immediately. Informal comments often mean ill-informed comments or `I am sorry, I do not really know half the story but I will give you an off-the-cuff informal comment about it', which would not usually be worth the paper it was written on. Are we seriously saying that the commissioner will have to be invited to comment informally on matters because he cannot gain the proper urgent access that he may require from time to time?
We know that abuse probably continues in some residential children's homes in Wales. It will be some of the people involved in that who will refuse to give access. Those people will be obstructive, and will pose the greatest risk to children. The paedophile rings that operate throughout the UK and beyond are very sophisticated. When they see that a commissioner can be denied proper access to an institution, access will be denied. I fear for the safety of children in those circumstances. Surely we can reconsider that matter. Both the new clauses have been well drafted and have reason and force behind them. I urge the Government to reconsider, even at this stage.
I do not wish to delay the Committee because all the relevant points have been clearly made, but I strongly support new clauses 3 and 4. It would be difficult if the commissioner could not comment on some of the high profile cases mentioned by hon. Members and it is important for the Minister to clarify the commissioner's position on such cases. New clause 4 also makes important proposals and, again, I should be grateful if the Minister would make it clear whether, under the Care Standards Act, the commissioner could have access to any institution that he felt he needed to enter. Would section 74(3)(b) of that Act, requiring persons who hold or are accountable for information to provide the commissioner with explanations or other assistance, cover that? That could allow the commissioner to have access to institutions. I should prefer the new clauses to be in the Bill, but, if the Minister is not minded to accept them, I should like him to clarify the issue.
Welcome back to the Committee, Mr. Wells.
Members on both sides of the Committee have made good points. I hope that I can clarify the Government's intentions on the issues raised in new clauses 3 and 4. New clause 3 would remove the specific restriction on the commissioner inquiring into or reporting on any matter that is to be determined by a court or tribunal. New clause 4 would give the commissioner a right of access to institutions that include children to whom part V of the Care Standards Act applies when investigating individual cases. I share the concern of my hon. Friends the Members for Bridgend and for Cardiff, North (Ms Morgan), and of Opposition Members, about the commissioner's investigations and agree that they should not be unreasonably restricted. I genuinely hope that my explanation will enable hon. Members to realise that we will be able to meet the spirit of the new clauses without incorporating them into the Bill.
There are many precedents for having restrictions on inquiring into or reporting on issues that have been determined by a court or tribunal. Courts and tribunals determine specific issues and it is not for the commissioner to try to reopen their determinations. That means in practice that, while the commissioner would not usually comment upon or investigate matters that are sub judice, he would not be prevented from commenting informally on the outcome of court cases or from reporting on related issues within his jurisdiction, such as the performance of social service authorities which have dealt with a case.
My hon. Friend the Member for Bridgend mentioned the case of Anna Climbie. If that case had occurred in Wales, the commissioner would not have investigated the specific issue that was before the court—the guilt or innocence of those charged with the crimes that eventually resulted in the court case. It is not the commissioner's role to decide guilt or innocence, second-guess a jury, or become involved in the legal process. Once the court has reached its verdict, the commissioner can look at the wider issues arising from the verdict.
If that case had occurred in my authority in Flintshire, north Wales, the commissioner would not have been able to examine guilt or innocence, but, once the verdict had been received, the commissioner could have considered whether Flintshire county council social services had acted properly in the run-up to the case. There may have been general lessons about child care protection matters to learn from the case, which he might have wished to investigate with colleagues from the social services inspectorate, or local government. Nothing in the Bill precludes the commissioner from considering the consequences of a particular verdict, but it would be totally inappropriate for a commissioner to consider a case during the course of a trial.
During that sad case, there was a moment when one of the social workers wanted to blow the whistle on what was happening. Had the commissioner been in existence, and the social worker had blown the whistle to the commissioner, presumably the commissioner could have intervened to protect the child against the incompetent bureaucratic processes that had allowed her to be abused.
Presumably, if the commissioner had received a whistle blowing comment from a social worker, he would be able to give evidence, if called upon by the court, which is entirely different from making comments during the course of the trial. The commissioner's role does not include second-guessing the jury, but it does include looking at the consequences, post-verdict.
I understand that the commissioner cannot do anything directly relating to the verdict, and I fully support that, but, to improve the system, when the case is over, the commissioner could pore over all the evidence, set-up an inquiry of his own, and call people to clarify matters.
There are subtle but important differences. The commissioner should not comment during a court case, unless he is called to give evidence, as the hon. Member for Faversham and Mid-Kent said, because information was passed to him that led to the court case. The commissioner should not comment as a matter of course. He would not go to the newspapers with his views on issues in order to influence the verdict. Once the verdict is given, the commissioner is free to examine the consequences of that decision.
When X has been found guilty of a crime, the commissioner can examine the agencies involved to see whether there are lessons to be learned. The commissioner cannot—this is a subtle but important difference—re-visit the verdict. Therefore, if a jury finds a person innocent, the commissioner cannot take further evidence and, as a result, say that X should have been found guilty. Those are important roles in terms of the legal system, and those roles are defined.
I am sure that the Minister is right, as no one in his right mind would seek to comment on the jury's verdict. Without having tried the case and heard all the evidence, such comment would be bound to be somewhat specious.
Will the Minister give an example of a situation that would be outwith the commissioner's remit. I will read the section again. It states:
``This Part does not authorise the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal.''
Presumably, that is included for a reason. Without referring to the social services argument—we fully understand that social services will be part of the Commissioner's remit—can the Minister give an example of where that section would come into play and would preclude comment?
I thought I had done that; I apologise if it was not clear. The commissioner could be called to give evidence, as in the case sited by the hon. Member for Faversham and Mid-Kent, if he had been involved in determining part of the evidence on the case. However, he could not comment on the case as a general principle while it was being considered. He could not try to influence the verdict in that general sense. Once the verdict has been given, he cannot reopen it, but he can look at the consequences of the case for the agencies that are involved in child protection or welfare issues generally. I cannot give specific examples of how that would work, but I hope that the general boundary lines are clear.
I have been torn between a Select Committee hearing and this Committee and I apologise for not having been at the early part of the debate. I entirely agree with what the Minister said, but my point was different from the one that he raised. I am seeking an assurance that, if a whistleblower were to speak to the commissioner before any question of legal proceedings arose, the commissioner would, under the Care Standards Act, have the power to look into the workings of the authority about which the whistleblower was complaining. That would have prevented the fatal injuries.
Absolutely. I can give a categorical assurance that that is one of the central tenets of the commissioner's role.
The clarification that I am trying to provide relates to the period of the court case. It is not appropriate for the commissioner to comment upon a court case where he has not been involved in the compilation of evidence, nor is it part of his role to comment on a verdict. It is the commissioner's role to examine the implications for public service and childhood protection issues. I do not think that I can make that any clearer.
It is not part of my function to delay the Committee but I cannot understand how what the Minister has said is on all fours with the words
``or has been determined by''
``Has been determined by'' means a case has been decided by a court or tribunal. The commissioner, therefore, is not authorised to inquire or report on any matter because it has been the subject of legal proceedings that have ``been determined''. I am sorry to put it that way, but it is completely different from what the Minister is saying.
I can only give my interpretation of the Government's thinking on the issue. I hope that that satisfies my hon. Friends the Members for Bridgend and for Cardiff, North and the hon. Member for Meirionnydd Nant Conwy.
Can the Minister clarify the statement in section 77(1) where it says that the commissioner cannot
``enquire into or report on any matter'' so far as it has been determined by legal proceedings? Is the Minister saying that the commissioner will be able to comment on the local authority procedures that may have caused this to happen, or anything of that nature? That is the key point. As it is written, it looks as if he would not be able to comment on any of surrounding issues. The Act says ``on any matter''.
My interpretation—and I am speaking on behalf of the Government—is that the commissioner should be able to comment on the implications of the case for the agencies for which he has jurisdiction. I hope that that is the clarification that my hon. Friends have sought in tabling the amendment. sought. That has always been the Government's interpretation of this particular aspect of the legislation.
There does seem to be confusion between the wording in the Bill and the Government's intentions. We agree with the Minister and would like to see what he said in the Bill. However, what we see in the Bill is not, in our interpretation, the same. When the Bill passes to the other place, the Government will have an opportunity to examine the wording of the clause again.
I would like to reflect further on what the hon. Gentleman said, but I have made the Government's intentions clear. Hon. Members still have their views, but I am trying to define the Government's understanding.
Will the Minister reconsider my point about advocacy? Young people of a low IQ who cannot express themselves or communicate adequately are denied assistance in court. Could they not have some form of counselling because after the court's decision, some of these people may be put in jail or a detention centre in inappropriate circumstances? That is the court's decision. Without an advocate, the right result is sometimes not achieved. I do not expect an immediate answer from the Minister, but would he raise that matter with his colleagues? It is an important point.
I am grateful for the hon. Gentleman's comments. I cannot provide an immediate answer, but I will reflect further. If necessary, we can correspond on the issues.
I mentioned earlier that I had been in touch with the Library to examine the powers of the ombudsman in general and to ascertain what happened in the past. The same issue came up when the Care Standards Bill was in Committee. I was not a member of that Committee and do not know whether anyone present here was—
My hon. Friend can answer my point, then. To the best of my knowledge, no major debate of this matter took place in that Committee. It may have come to the fore because of subsequent concerns. I accept the Minister's argument about why the commissioner cannot examine the verdict, only the services responsible for providing the care. A cast-iron guarantee would make me happy with the outcome of the debate.
I was a member of the Committee considering the Care Standards Bill last June. I was also a member of the Committees considering the Local Government Bill and the Learning and Skills Bill at the same time. I spent most of last June flitting between three Committee Rooms to speak on matters relating to those Bills. I hope that my hon. Friend will excuse me if I cannot recall in exact detail what was debated then.
I hope that my explanation of the commissioner's role and of his responsibility for matters going before a court will meet my hon. Friend's request for clarification and assurance. I know that he has liaised with many children's groups outside this House; I have met them, too, and given them the same explanation prior to this Committee stage. I hope that my hon. Friend and those groups will consider the implications of what I have said, and reflect on the matter when it goes to another place, as it will very shortly. I am confident that what I have said today will allow the commissioner a positive role in those areas.
On the issue of physical access to institutions, the Bill reflects the disclosure arrangements for other ombudsmen and commissioner-type officers in the United Kingdom, who have no specific powers of physical access to institutions that come under their jurisdiction. Nevertheless, the Bill extends the right to information, explanations and assistance under the Care Standards Act 2000, to ensure that the commissioner's investigations will be as effective as possible.
The Assembly will be able to make regulations that enable the commissioner to require information to be provided in respect of the bodies that will be subject to the function of reviewing and monitoring arrangements for dealing with complaints for whistle blowing and advocacy. The regulations made by the Assembly will give the commissioner strong powers to require that information, explanations and assistance be provided in respect of the relevant bodies when the commissioner examines individual cases. The new powers that we have given, both under the Care Standards Act last year and under the Bill today, will allow the commissioner to be able to demand information on a range of issues that he is not able to demand under the Care Standards Act.
The extra powers enhancing the commissioner's responsibilities will be of particular importance to cover the areas mentioned by my hon. Friend. The power of access in particular is more appropriate for bodies that have direct inspection powers, such as the proposed care standards inspectorate for Wales. I confirm that the care standard inspectorate will have the right of access to premises to undertake direct investigations, as that is in the nature of its roles and responsibilities as distinct from those of the commissioner.
I am confident that the commissioner will want to establish close working relationships with the inspectorate, and that he will give it advice and support on issues relating to inspections that that it has undertaken and reports it wants to produce. However, there is definite distinction between the two roles. The commissioner will have the power to ask for papers and information and make demands on organisations accordingly; the new care standards inspectorate for Wales will be able to make visits to premises and to undertake that type of inspection visit, because that is in the nature of its responsibilities. The two roles are distinct and both will enhance the protection of children.
I accept that there are two distinct roles, but we all know that inspectors do not always get it right, so it is desirable that the commissioner has the right of access to institutions. Will the Minister agree orally, now, or will he make appropriate provision in the Bill? We have had so many scandals and tragedies in institutions in Wales and throughout the United Kingdom that it seems unfortunate that we do not spell out such a provision in the Bill.
I hope that can reassure my hon. Friend. There are two distinct roles: the care standards inspectorate is responsible for inspection and has the right of access to premises; that is its distinct role, whereas the Children's Commissioner is responsible for broad areas. For example, if the care standards inspectorate chooses not to make an inspection, the Children's Commissioner can, using his jurisdiction as the person responsible for such issues, comment and report on that failure to carry out an inspection; he can also encourage the carrying out of inspections. However, there is a distinct difference between the day-to-day responsibilities of the inspectorate and the commissioner. Although my hon. Friend's probing amendment would allow the commissioner to have that right of access, it is, in fact, part of the general division of labour in terms of child protection.
I appreciate everything that the Minister is saying about the differing roles of the inspectorate and the commissioner, but let us take a hypothetical case in which the failure lay with the inspectorate to carry out their inspection of a children's institution properly; and there was a cosy relationship between the head of the institution and the inspector. Let us say that someone blew the whistle on what was going on, with the result that the commissioner wanted to investigate, visit the institution and question the staff to get to the bottom of the whole affair. Does the Bill as it stands give the commissioner untrammelled access, or could the head of the institution say ``Sorry, you're not coming into my place. That's the inspectorate's job and they have been and I do not want you here.''? Can the Minister assure us that, either because the Bill does not prevent the commissioner from doing that, or because the National Assembly could make regulations giving him that power, that all would be well if the commissioner were to act in the hypothetical circumstances I have described?
The commissioner, as I said earlier, will be able to require information to be provided in respect of bodies, he will have powers of general review and he will be able to ask for information about those bodies, the care standards inspectorate and the institution that may be being inspected, but he could not undertake a direct visit for the reasons that I have stated: there is a division of responsibility. However, the commissioner could report on the care standards inspectorate's failure to act and he could indicate to the Assembly his concern following the receipt of information about the inspectorate's failure to act on a particular case.
There are different and distinct responsibilities. The commissioner has overarching responsibility to review the level of services and type of service provision, whereas the job of the care standards inspectorate is to inspect. I do not know whether that satisfies my hon. Friend, but that is the view shared by the Government and the Assembly those roles and responsibilities.
We have fully discussed both of the amendments. I have tried to explain the Government's view on core aspects, I hope that the Committee is satisfied that the commissioner will have a responsibility to look at the implications of cases. I also hope that I have satisfied the Committee on the question of powers of access. There are mechanisms in place to ensure access.
I appreciate the fact that the Minister is taking time to deal with these points, but is it not illogical that an inspector has a statutory power to enter premises, but the commissioner—the guardian, the advocate at the top of the tree—is not allowed to gain access in any particular circumstances? I am not saying that he would often want to have access, but there might be occasions on which the inspector has been obstructed, or the case is a high-profile, very bad one in which, even for the purposes of making a public announcement later on, it would be better if the commissioner could say that he had visited with inspectors. None the less, the commissioner is precluded from doing that, whereas inspectors have the statutory duty and power to do so. That does not make much sense. I am not blaming the Minister, but there appears to be a vacuum.
The hon. Gentleman should always blame the Minister, because Ministers are ultimately responsible for determining the policy and the line of Government thinking.
I shall accept the blame. The debate boils down to core functions and their duplication. The purpose of the care standards inspectorate is to inspect and that of the Children's Commissioner to oversee and ensure that lessons are learned, good practices are disseminated and issues arising from inspection reports are considered. The two roles are not contradictory, but I shall reflect on what has been said. I hope that that my hon. Friend will withdraw the amendment.
We have considered new clauses 3 and 4 in detail, but some anxiety about access remains. I am not revealing any secrets, but I read the social services inspectorate reports when I was the Welsh Office Minister responsible for such matters. The questions most often asked during discussions on those reports with senior staff in the Welsh Office were about the physical location—we asked ``Where was this or that located?'' in response to comments made by the social services inspectorate.
In a case in which the inspectorate is accused of not doing its job properly, the commissioner must be able to visit premises, although I appreciate that he can get lots of information about premises in which problems are alleged to have occurred. For now, however, as this is our first run at such an important issue and there will be opportunities to revisit the matter on Report and in another place, I ask the Minister to reconsider whether the access issue can be resolved while avoiding the potential problems of duplication of function. In that spirit, I beg to ask leave to withdraw the amendment.
Motion and clause, by leave, withdrawn.