Clause 1 - Establishment

Children Bill [Lords] – in a Public Bill Committee at 9:45 am on 12th October 2004.

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Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 9:45 am, 12th October 2004

I beg to move amendment No. 52, in

clause 1, page 1, line 4, after 'Children's', insert 'Rights'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following: Government amendments Nos. 163 to 165, Government amendment No. 175 and amendment No. 50, in

clause 56, page 35, line 19, leave out 'Children' and insert 'Children's Welfare and Rights'.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

May I say what a pleasure it is once again to serve in a Committee under your wise chairmanship, Mr. Benton? I should also like to thank the Minister for Children, Young People and Families and the hon. Member for East Worthing and Shoreham for their kind words. I should also like to compliment the Government Whips. That may be an unusual thing to do, but it is in the interests of parliamentary democracy that Back Benchers can table amendments on matters about which they feel strongly.

The Whips have shown a degree of tolerance and forbearance towards me that would surprise many people, possibly outside the parliamentary Labour party and possibly inside it. Clearly the Government Whips have an important job to do, but although I have occasionally been a pain in the neck, they have always been helpful, constructive and sensible. If we disagree—I hope that we do not—about any of the

matters on which I have tabled amendments, I trust that we will all recognise that such disagreements are between decent and well-meaning people who are simply trying to do their best for children.

I am pleased to open the debate with the positive intention of inserting the word ''rights'' right at the beginning. If I had handled the task better, I would have tried to insert it in line 1, rather than in line 2. I am sad and shocked that the Government amendments in the group—Nos. 163 to 165 and 173—remove that very word. I seek clarification through my amendment.

On Second Reading, it was obvious that my right hon. Friend was looking at rights in a particular way and interpreting them as individual rights. She thought that if too much emphasis were placed on rights, the commissioner's role would be skewed towards investigating individual cases and the commissioner would be overwhelmed by such cases. I do not recognise such a definition and I am not sure who does. It is important that we consider that issue during the next few minutes.

It is particularly unfortunate that the Government should be trying to remove the word ''rights'' from what everyone has acknowledged is a colossally important Bill, given that one of their earliest actions was to incorporate the European convention on human rights into UK law through the Human Rights Act 1998. In the same first term, we saw the creation of the Disability Rights Commission and the children's rights director, and even now we look forward to the development of the commission for equality and human rights. At this stage, however, we seem to have gone timid on rights when we are discussing the rights, interests and needs of the most vulnerable people in our society.

The Minister wants the Children's Commissioner to concentrate on children's interests rather than rights, so perhaps at this stage we should give those important words some thought. It may be useful to note that David Archard, the modern philosopher who has thought deeply and published widely on issues relating to children, family and the state, has set out a fairly classic interest-related theory of rights, which probably goes back a couple of hundred years to Kant. The theory is that a right arises when someone has an interest of sufficient importance to impose on others certain duties whose discharge allows the right-holder to enjoy the interest in question. There is a clear distinction there between rights and interests, but it is not about individual rights and a community of interest.

Clearly, someone who has rights is someone of significance. Their interests are of particular importance, and the duties of those who are charged with meeting them are vital. There is nothing wrong with talking about interests and welfare—indeed, it is entirely appropriate—but we usually acknowledge that those are of a lesser order than rights. For instance, we often discuss the interests and welfare of animals, but rarely their rights, and most of us think it quite odd to do that. Nationally, we talk about the best

interests of children, but internationally we declare our allegiance to the United Nations convention on the rights of the child.

Rights are the basis of a liberal, democratic society. They uphold the fundamental obligations of the state to the individual and encourage openness about the entitlements of individuals and the success of Governments in meeting their needs, which is vital. There is nothing wrong with the word ''rights'' and nothing to be afraid of in it. There is no reason to remove the word and plenty of reason to insert it in such a Bill. It worries me when powerful people, even those as benign and committed to children's interests as the Minister, seek to excise such an important word. Those who seek to erase ''rights'' seem to be saying something about the value that we ascribe to children, the reluctance of the state to be challenged or the power that we are prepared to give the commissioner—or perhaps all three.

I hope I am not alone among Government Members in voicing these concerns. I cannot believe that I am alone in having them; indeed, I know that I am not alone in Parliament. I am grateful for the support of those who signed up to amendment No. 52. I am also glad to have the views of the Joint Committee on Human Rights. Although I do not agree with all of its 19th report of this Session on the Bill, I earnestly believe that every member of this Committee should study it carefully, because it is a wise document.

With regret, I share the Joint Committee's disappointment at the tone of the Government's message that ''rights-based'' is a negative concept. It stated that there is

''an excessive, and in our view unfounded, anxiety about the notion of a 'rights-based' commissioner.''

I agree that there is a clear distinction between a rights-based and a complaints-based commissioner. I am not aware of anyone advocating establishing a complaints-based commissioner, whereas a wide consensus of people concerned with the issue are committed to the commissioner being firmly based on the concept of children's rights.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I share my hon. Friend's concern about the move away from a rights-based commissioner. Does he agree that commissioners or similar bodies throughout the world are, on the whole, based on rights, and that the Children's Commissioner would be weakened by the proposed changes?

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

My hon. Friend makes an excellent point and I would go further. It is more than ''on the whole''— every commissioner that has been set up in the world has a focus on children's rights. Yesterday evening I was given a list of the duties and responsibilities of new commissioners in Malta and Croatia, which are firmly based on children's rights. Why a country such as ours cannot base the role of the commissioner on children's rights is beyond me.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

Is my hon. Friend aware that the European network of children's commissioners is meeting in Cardiff in Wales later this week? Is he also

aware that, because of the proposed changes, the Children's Commissioner in England may not be able to gain admittance to that organisation?

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I have certainly heard that and I share my hon. Friend's concern. It is beyond me why we should want to set up a commissioner who would be excluded from the growing company of commissioners across Europe and the world because they were so weak. A Government as committed as ours to children's issues and a country as powerful as ours which offers a good future to our children should have the best Children's Commissioner in the world, not the worst. It is extraordinary.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

So far the hon. Gentleman has referred exclusively to the rights of children in respect of the Government, and the need for the Government to respond to the rights which he recognises that children possess. Does he accept that rights are exercised not uniquely by or against the Government, but against other people? How does he expect other people to respond to those rights, and how would their rights be balanced against the rights that he wants to include in the clause?

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 10:00 am, 12th October 2004

I am grateful to the hon. Gentleman, as he leads me into my next argument. Throughout this group of amendments there is a worrying thread, which may also run through some amendments that he has tabled, and a train of thought implying that emphasising children's rights somehow pits children against parents. I am a parent and firmly believe that, by and large, the best advocates for children's rights in this country are parents. The UN convention explicitly respects the responsibility of parents to bring up children according to their own values and to educate children according to their principles. It also firmly sets out the importance of reuniting families.

The issue of children's rights is, by and large, one of power and of the powerlessness of children in the face of the state. It is a function of the fact that children are the only human beings in this country who cannot vote. It should be emphasised that if children—who are powerless in the face not only of Governments but of the judiciary, the professions, organisations and institutions—are ever to have their voices heard, their interests recognised and their rights respected, it is vital to base our approach on a watchdog that is firmly grounded in children's rights.

Parents who want to do their best for their children—as well as a state that wants to improve conditions for children, organisations and professions that want genuinely to serve them, and children themselves—will benefit from the independent champion that a Children's Commissioner based on the United Nations convention on the rights of the child will be. The commissioner will be charged with protecting not only the interests of the children of this country but their rights. If we embrace children's

rights today, we shall serve them well, but if we water down those rights, we shall be missing a tremendous opportunity.

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

I want to echo all the hon. Gentleman's eloquent comments. My colleagues and I were happy to subscribe to the amendment, because we thought it staked out the most important ground that we needed to cover on the issue of the commissioner. There is a fundamental difference between the schools of thought about whether there should be a rights-based commissioner, or one that is listening, and whether we are talking about a reactive or a proactive role. Those are fundamental differences, and I do not understand the motivation behind the Government's amendments, which do not sit happily with much of the excellent work that they have already carried out.

We now have the issue of human rights in this country's legislation. I express this as someone who does not understand the Government's train of thought: I passionately believe that they should be listening to all the many children's organisations and others, who are united in the view that we should have a rights-based commissioner. So many professionals cannot be wrong about that. Those who have considered the activities of children's commissioners in other countries are united. At present, our Government are out on a limb, and I really do not understand why.

Of course, listening is important—we shall be discussing that and arguing later that more listening should take place—but it is not in itself enough to improve children's lives. That is what we mean by suggesting that the United Nations convention on the rights of the child be at the very heart of the Bill. What we really need is a commissioner who will promote and protect children's rights, and have the power to carry out the follow-up action that is needed. The United Nations Committee on the Rights of the Child published guidelines on independent human rights bodies for children, and there are also the Paris principles. Five essential components are outlined. Independence is important, and we will obviously return to that debate on a later clause.

A human rights framework, strong investigatory powers, the impact on law and policy, an effective remedy for infringement of rights—the Government's approach here does not relate to those important principles. We have the opportunity within the Bill to put ourselves on the same footing as other European countries. To be out on a limb and out of step with Wales, Scotland and Northern Ireland makes no sense. We need to heed some of the comments that the Joint Committee on Human Rights made about the Bill. It said:

''The view of the existing Commissioners was that the language defining the new Commissioner's mandate is far too weak, and contrasts with the much more robust duties placed on the other Commissioners, which require them to be more proactive in promoting, safeguarding and keeping under review.

The Bill as drafted concentrates on the procedural aspects—that is promoting the views of and interests of children . . . In our report last year we envisaged that the Commissioner should be given a much more substantive role.''

Those voices come from all directions. As well as listening to children, the Minister should listen to all those voices that say that this must be a rights-based commissioner. That is vital.

We signed up to the convention in 1991, which is a long time ago. It gives us the opportunity and the time to ensure that we implement it. It provides a common vision and language for securing a good childhood for everyone. It gives us a detailed strategy for meeting all children's needs. Why not implement it fully at this stage? We also need a commissioner who gives equal opportunities due credibility and accountability. I have not tabled an amendment on that but somewhere in our specification it should state that the commissioner must pay due regard to equality of opportunity.

The president of the European Network of Ombudsmen for Children wrote to the Joint Committee on Human Rights to explain that with such limited powers and questionable independence, it is unlikely that the England commissioner would be able to join the European network. Surely we need to get ourselves ahead of the game rather than lagging behind. There are many instances of countries adopting our models and going on to make much more progress. We are behind at the moment, but why not take this opportunity to be ahead and to lead the world?

There is much to be said—many other hon. Members will wish to contribute—but I heartily endorse amendment No. 52 and oppose the Government amendments. I sincerely hope that the Government will address these important points and put ''rights'' back at the heart of the functions of the Children's Commissioner.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I want to support the amendment and also to speak to amendment No. 50. I do not place great store by individual words and titles but this is more fundamental. It is summed up by Government amendment No. 164, which reads, ''leave out 'rights'''. The Bill refers to children but leaves out their rights. This will be a rights-light Bill. It will be about complaints, rather than about upholding rights and promoting the well-being of children, which we all want.

The current wording is

''promoting and safeguarding the rights and interests of children''.

That will be diluted, if the Government get their way with their amendments, to promoting awareness of the views of children. That sounds a bit wet. Little more than a glorified children's television presenter could perform the same function if it does not have the importance and powers that we are trying to give to the champion of children, as the Children's Commissioner should be. I fear that I return to the phrase coined in another place of ''all ears and no teeth''. The hon. Member for Lancaster and Wyre is right that the Government seem to have gone timid on the issue.

I hope that the Minister has a solid case. She may wish to counter the philosophy that the hon. Gentleman so learnedly quoted—it was way above my head. However, what is wrong with children's rights? I agree that rights are best protected by parents, and we

will seek amendments to reinforce the role of parents. They are the first line of defence for a child's welfare unless abuse happens, in which case we need the role of outside bodies, part of which will be the Children's Commissioner's responsibility. I will be hard pressed not to support the hon. Member for Lancaster and Wyre in a Division unless the Minister can say why we should have a rights-light Bill. The debate is fundamental to our discussion of future clauses.

Amendment No. 50, which deals with the short title defined at the end of the Bill in clause 56, has been shunted to our first deliberations. There are two points to the amendment. The first is that there is more to the Bill than just calling it the Children Act. We need a better description of welfare and rights, and the title that I have suggested echoes the rights case that the hon. Member for Lancaster and Wyre has made. Secondly, there is a practical reason—it is not entirely mischievous—and I suggested a similar amendment to the Adoption and Children Bill. We have so many pieces of legislation with the same name: there is the Children Act 1989, and this will be another Children Act. We are constantly confusing ourselves about which Act we are referring to, so I am trying to be helpful without making a weighty political point. Although the Minister may not agree with one of the words that I suggested, it might be more useful if the Government added different words to the Bill's title to differentiate it from other legislation, primarily the Children Act 1989.

To pick up the point made by the hon. Member for Cardiff, North, I am concerned that we should be creating the best. We should be leading the world in the commissioner that we are producing. We have a good reputation in supporting child protection, although clearly we need to do more, which is why we have the Bill. It contains a lot of innovative measures, which we need to get right. If the Children's Commissioner for England/UK is not even powerful enough to be on a level playing field with the other European commissioners, we are clearly doing something wrong. If that suggestion is true, the Government need to justify why they are not following some of the best practice of other countries. Children deserve protection in this country no less than they do in countries on the continent or in other parts of the United Kingdom.

Unless the Minister can come up with a convincing reason why we should leave out the rights of children, I shall urge my hon. Friends to vote for amendment No. 52, as well as my amendment, No. 50.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I am pleased to speak in support of the amendment of my hon. Friend the Member for Lancaster and Wyre. I hope that when my right hon. Friend the Minister replies to the debate, she will be able to convince us that she has a reason for the changes that she has proposed. However, it seems to me that the Children's Commissioner is much weakened by the changes. I believe that we should have a rights-based commissioner. If we do not, the English commissioner will be the odd one out in the European network. I mentioned that the ENOC is meeting in

Cardiff at the end of this week. How will our English Children's Commissioner feel about going to such meetings in the future?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 10:15 am, 12th October 2004

I always thought that one of the benefits of devolution was that different countries could do things in different ways. I accept that, in this particular case, there might be something wrong with being the odd one out, but is the hon. Lady advancing the proposition that, in general, it is a bad thing to be the odd one out?

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I would regret it if the English commissioner did not have similar powers to those of the other commissioners. I am thinking not only of the children in England, but of the role of the English Children's Commissioner in non-devolved areas in Wales—an issue that we will discuss later. Welsh children will be affected by the powers of the English commissioner and it is therefore important for the English Children's Commissioner to have the same rights as the Children's Commissioner for Wales. I have seen how the Children's Commissioner for Wales works and have concluded that it is essential for the commissioner's role to be based on a rights model. We need a proactive commissioner who will stand up for children's rights and will be independent. I am therefore very sorry that the Government have weakened the role of the Children's Commissioner for England.

I do not want to talk at great length because most of the points that I wished to make have already been covered. I hope that the Minister will be able to convince us in her reply that there is a reason behind the proposals, and that there is a reason why the commissioner who will be operating in England, and perhaps in parts of Wales, will not have the same powers to affect the lives of children as all the other commissioners in Europe and, as my hon. Friend the Member for Lancaster and Wyre said, the rest of the world.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (International Development)

I also wish to support the hon. Member for Lancaster and Wyre. This is not just a matter of a name change, as has already been pointed out. As the hon. Member for Cardiff, North said, the Children's Commissioner will apparently have powers to act in Wales. I am concerned about the confusion that that might cause in the minds of children; they might be able to go to the Children's Commissioner for Wales, who would be working on a somewhat different basis. I am sure that we will have time to explore those arguments later.

I also want to point out that the name change has a significance of its own. It is significant in relation to the perception of the role of the commissioner by the public, and particularly by children. A French philosopher who died last week pointed out some time ago that naming of objects in some ways both defines what those objects are and creates them. As has already been pointed out, the change is sufficiently

important to make the European association consider not admitting the Children's Commissioner for England.

The hon. Member for Mid-Dorset and North Poole has already referred to the commissioner as the ''England commissioner''. Hon. Members might recall that I asked the Minister on Second Reading what the commissioner would be called, and I do not think that she gave me an answer. Perhaps she can be clearer today. The name ''Children's Commissioner'' or ''Children's Rights Commissioner'' might be confusing, given that we have Children's Commissioners in Wales, Scotland and Northern Ireland. The alternative of ''Children's Commissioner (Wales, Scotland and Northern Ireland)'' would be rather clumsy. I am in favour of terminological exactitude rather than inexactitude. I shall be interested to hear the Minister's response.

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

Some of the issues raised in the debate will be discussed when we consider the many amendments on how the commissioner will function. I say to my hon. Friend the Member for Lancaster and Wyre that I sincerely believe that the Bill and the Government's amendments to its early clauses will ensure that we have the very best commissioner in the world, built on our experience of the workings of commissioners in other countries. I hope during our discourse that I can convince him and other members of the Committee that the commissioner will not be weak, but very strong, and utterly independent of Government. His will be a powerful voice arguing the case on behalf of children. Children will be strongly involved in the process of the commissioner's appointment, which if it is successful will come to be seen as an historic moment in which we strengthened the voice of children and their rights in society.

We have not gone timid on rights as my hon. Friend suggested, which is why we accepted an amendment in the House of Lords that in doing his or her work the commissioner must have regard to the United Nations convention on the rights of the child. I hope that he agrees that in accepting that amendment we recognise the importance of the convention.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I entirely acknowledge the Government's good work in tabling the amendment in the other place. However, clause 2(8) states that the children's commissioner

''must have regard to the United Nations Convention on the Rights of the Child.''

Is not it therefore absurd to remove the word ''rights'' from the clause? It makes no sense at all.

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

I would argue that we are talking not about the context and how the commissioner will work, but about his focus and the functions that he fulfils, which is why we say that he must have regard to the UNCRC. In putting the stress on his working in respect of the outcomes that children have told us are important to them, we have tried to ensure that the commissioner does not spend his time policing children's individual rights which flow simply from having the sole function in relation to the UNCRC, but considers the wider policies and interests of

children and reflects them, in respect of Government and, as the hon. Member for Isle of Wight said, other parts of society.

The two notions—having regard to the UNCRC, and focusing on a much broader picture—are not conflicting, but complementary, and I put it to my hon. Friend and to Opposition Members, that if we focused simply on rights, it would limit the work that the commissioner could do on behalf of children. That is why I genuinely believe that we are establishing a much better commissioner than those elsewhere.

In respect of my hon. Friend's narrow amendment, no other commissioner has rights built in to the title, although I accept his point, which was also made by other hon. Members, that there is only a rights focus in the work that they undertake.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

Does my hon. Friend agree that it is possible to have a rights focus and also influence policy? Many commissioners work at both levels, with one level feeding into the other, and that is an ideal situation.

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

I have had this discussion with my hon. Friend on many occasions. It is clearly correct to state that an interest in issues that impact on children will frequently arise from individual cases that children raise with the commissioner. However, my experience from observing the work of commissioners elsewhere is that if one gives a limited rights focus to the commissioner, inevitably, given the time constraints, their focus will primarily be on policing individual rights. We would lose the broader focus that I want this powerful champion of children to have, which is the interests of children.

My hon. Friend the Member for Lancaster and Wyre held a meeting with a number of young people as part of the HeadsUp project. I have a copy of the minutes of that meeting, as I hope do other members of the Committee. What came out of it, as well as from discussions that I have had with children and young people up and down the country, is that no child talks about having a rights-based commissioner focused on the UNCRC. When discussing what the commissioner should do, they want somebody who will focus on international issues such as trade justice, on national issues such as the environment and asylum, and on specific issues such as bullying, sex education, drug abuse and racism.

If a commissioner is established with a purely rights focus, it is inevitable that the main focus of their work will be on pursuing individual complaints, as has happened in Wales. The commissioner in Wales has a heavy case load of about 500 cases a year. To think that he can pursue those effectively, while at the same time taking a view on the wider issues that we wish the English commissioner to champion, is mistaken.

Photo of Dari Taylor Dari Taylor PPS (Ms Hazel Blears, Minister of State), Home Office

I have listened to the debate with great care, and I put it to the Minister that if we added the word ''rights'' to the Bill, we would be defining a tight, prescriptive legal process and framework, and frankly we would end up with one winner: the process of law rather than the child. I hope that she will make that statement loud and clear.

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

I am married to a lawyer so I have strong inhibitions about that statement, but I entirely agree with my hon. Friend's view. If children did not already have a whole range of organisations, tribunals and legal processes through which they can pursue their individual rights, members of this Committee would have a point. However, off the top of my head, I have thought of several: children can go to the local government ombudsman; under the Children Act 1989 there are a range of complaints procedures available; the bodies of the Commission for Social Care Inspection have a complaints procedure; there is a special educational needs tribunal, a Disability Rights Commission and an Equal Opportunities Commission; and subject to parliamentary processes there will be a new equality and human rights commission.

There is a range of organisations, tribunals and legal processes through which children can pursue their individual complaints and rights. We do not want the English commissioner to be bogged down in the pursuit of those individual rights at the expense of wider concerns.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 10:30 am, 12th October 2004

I appreciate the Minister's point, but I do not understand why adding the simple word ''rights'' will suddenly lead to a deluge of work for the commissioner which apparently ignores all the other powers and directions that he will be given in establishing his office in the first place. In any case, the Minister's amendment is designed to remove the phrase

''safeguarding the rights and interests of children''.

The provision refers to rights and interests. It is not exclusively about rights, and the word ''interests'' encompasses all the other things that we are trying to do, so she has not made the case that the commissioner would suddenly have his whole work load changed so as to make his job completely impractical.

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

I have to say a couple of things to the hon. Gentleman. First, we are not changing the fact that the commissioner must have regard to the UNCRC, so we are not removing that aspect from his or her work. Unlike Opposition Members, I am somewhat surprised by the hon. Gentleman's stance, because unless I misread the papers—I do not always believe everything that I read in them—the Conservative party is in the business of completely removing the Human Rights Act from our legal framework. Having a rights dimension to children's legislation would sit a bit oddly with losing the human rights dimension for the whole—[Interruption.] The two are related.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I am grateful for the spirit in which we are able to have this exchange, because my right hon. Friend and I have disagreed on this issue before. However, I feel that I must put it on the record that I think she has misunderstood how the Children's Commissioner for Wales works. Some 500 children have referred themselves to him, but he does not follow up each of those referrals; in fact, the number that he

follows up is very small. Rather, he and his office make certain that the cases go to the right agencies, all of which he has listed. I am thinking of the Disability Rights Commission, the Equal Opportunities Commission and the ombudsman. The number of individual cases that the commissioner deals with is minute, so he is not bogged down by them. He spends most of his time working and communicating with children in different groups and trying to influence the policy of the Assembly, where he has had a profound effect.

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

We have had this dialogue over many months, and my view, having observed the commissioner in Wales—one of the joys of devolution is that we may have different settlements in different countries of the United Kingdom—is that there has been a greater focus there on individual complaints than I want the English commissioner to have in the work that I hope he or she will do on our behalf.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (International Development)

The Minister said that there is a different emphasis in Wales. The record will show that earlier she used the term ''bogged down''. Was she referring to the Children's Commissioner for Wales being bogged down, and did she mean bogged down in general?

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

I was referring to the commissioner being bogged down by individual complaints. I know that that view is not shared by a number of hon. Members who represent Wales, and I understand the informal nature of much of the work that the commissioner undertakes with Members of the Welsh Assembly. However, from what I have observed of his work, I have been somewhat disappointed by the sparsity of the reports on general issues that have emerged from him.

Photo of Ms Lorna Fitzsimons Ms Lorna Fitzsimons Labour, Rochdale

May I check my understanding? The job that we are discussing is similar to our job. We are meant to be legislators and scrutineers but also caseworkers, and obviously one role informs the other, but we have to get the balance right between our different roles. Does my right hon. Friend want the commissioner to look up, and to look across Government in the widest possible spheres to ensure that Ministers foresee issues that may be of interest or detriment to children as and when they come up, rather than simply looking down and policing the rights that are already enshrined in legislation anyway?

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

The matter is about both foreseeing and reflecting on children's issues and concerns. We are attempting to focus clearly on outcomes and what happens to children. Although the amendments remove the references to rights, they retain the references to views and interests interpreted in light of our regard to the UNCRC. Later amendments will restore the broad focus, which is in line with guiding principles that inform the rest of the changes.

I want to deal with some of the issues arising from the argument about whether the commissioner is rights-based and whether he would have the independence to reflect on important individual cases. That was another reason why, having listened to representations in the other place, we included the new power to consider individual cases where there are wider ramifications and where there is no alternative mechanism to which children can refer. I hope that all members of the Committee welcome that.

The hon. Member for Mid-Dorset and North Poole talked about the commissioner being reactive, not proactive. I challenge that view: if we had an entirely rights-based commissioner without the broader focus on the outcomes that children have said are important to them, the role would be entirely based around the UNCRC and entirely focused on the policing of individual rights, so the commissioner would have to be reactive to complaints made to him on that basis. We are creating a proactive, not a reactive, mechanism, and the route that the hon. Lady wants to take would be reactive.

I agree that just listening would not be enough, but listening must be a precondition if the commissioner is to be effective in conveying the views and concerns of children in the reports that he may choose to publish and in the annual report that he will have to lay before Parliament. We wish to ensure that he listens before he acts.

I take the hon. Lady's point about equal opportunities being mentioned in the job description, and I will reflect on it. In all our work, particularly in listening to children, we are trying to ensure that the group of children and young people who advise me and who will be involved in the commissioner's appointment is representative of children as a whole. For example, we have listened to representations from Mencap, and several people with learning disabilities actively conveyed their views to me at the first meeting of the children and youth board.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions

I have listened with great interest to this very good debate. I am greatly reassured by what my right hon. Friend says about this subject being above and beyond rights. She says that it includes rights but that it is about much more. The hon. Member for Caernarfon shrewdly remarked on the philosopher who passed away last week and on definition by words, but much of this is about definition by actions. The Minister has alluded to further actions, but it might be helpful if she expanded on the sorts of actions beyond the rights agenda which she anticipates the commissioner taking.

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

I am very wary of treading on that ground; were I do to so, I would immediately be accused of interfering with the commissioner's independence. However, were I the commissioner, I have no doubt that I would be investigating issues such as the portrayal of children and young people in the media, child obesity and perhaps even children in youth offender institutions. A whole range of issues may be of interest to the commissioner; it would depend very much on the agenda of the day. If the Bill

is seen speedily through the House, it is our ambition to have somebody in post by Easter next year, and children and young people will be involved in that appointment.

Photo of James Clappison James Clappison Conservative, Hertsmere

May I take the Minister back to the earlier point about rights and interests? As well as amendment No. 52, we are debating Government amendment No. 163. Will the right hon. Lady confirm that, as the Bill stands, and putting the rights question to one side, the commissioner has the function of promoting the interests of children? The Government amendment will change that to promoting ''awareness'' of the interests of children. Will not that be weaker than promoting the interests themselves?

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

I do not agree. I am glad that the hon. Gentleman accepts that the word ''interests'' should remain—although I thought that the hon. Member for East Worthing and Shoreham did not accept that. As we move on to the further functions of the commissioner, promoting awareness of the views of children will in practice ensure that their interests are promoted. We have used that phrase because we wish the Bill to reflect a sensitivity to what children themselves will be saying about how the commissioner works.

I know that many amendments need to be debated and that the commissioner is not the only issue on which hon. Members have views. I shall move on.

Government amendments Nos. 164, 165 and 173 are all consequential to Government amendment No. 163. Amendment No. 164 would omit the word ''rights'' from the commissioner's general function in encouraging persons exercising functions or engaged in activities affecting children to take account of their views and interests. Similarly, amendment No. 165 would omit the word ''rights'' from the commissioner's general function, as set out in clause 2(2)(b), to advise the Secretary of State on the views and interests of children. Amendment No. 173 would remove the reference to rights in the general function of the commissioner in clause 2(8).

The UNCRC provides a set of principles or an ethical framework—I hope that my hon. Friend the Member for Lancaster and Wyre agrees. It is a reference point around which the commissioner's work can be based. The outcomes that we want to be the focus of the commissioner's work are the drivers for tangible change; we hope for a real step change in outcomes for all children. We therefore want to retain the requirement for the commissioner to have regard to the UNCRC.

We genuinely believe that basing the work of the commissioner on outcomes, with reference to the UNCRC, will provide the best of both worlds. That is why, in my view, this commissioner will be the best of all. I hope that my hon. Friends and Opposition Members will accept our intent, and that they will work with us to ensure that the commissioner acts as a strong champion and a voice for children.

Photo of James Clappison James Clappison Conservative, Hertsmere 10:45 am, 12th October 2004

I crave the indulgence of the Committee to make a brief contribution. I begin, Mr. Benton, by saying what a pleasure it is to serve under your chairmanship. I was keen to hear the Minister's reply to the debate. The Government's response is important, because they are changing the structure of the clause, which was put in place in the House of Lords with widespread, if not all-party, agreement. They are making a significant change and many would argue that the clause is weakened, so I should like to hear the Government's explanation for that. I appreciate the care that the right hon. Lady devoted to her explanation, but after listening to her careful and elegant contribution to the Committee, I am less convinced than I should like to be, if I were to support the Government amendments and vote down the amendment tabled by the hon. Member for Lancaster and Wyre.

We have had a good debate this morning. It has been philosophical at times, but no worse for that. There is a debate to be had about children's rights. Without necessarily going far into such a debate, there are wider implications flowing from it which concern me. We are putting in place a Children's Commissioner, with a great deal of fanfare. When the right hon. Lady introduced the Bill, there was no modesty in her intentions. She spoke of a landmark Bill, its legislative spine, and a transformation in children's chances. She said that we could all look back on it and derive pleasure later in our lives from having taken part in such a landmark parliamentary occasion.

That may be the case, but I hope that if we are taking all the time and trouble to create a Children's Commissioner, spending public money on setting up such an office and devoting parliamentary time to doing so, we should have something that makes a difference. For it to make such a difference, it must be seen to be robust and independent.

My hon. Friend the Member for East Worthing and Shoreham referred to a commissioner with teeth, and I think that a Lord in the other place referred to it as having other physical attributes. Whether or not that is so, it does not seem to have recovered that robustness as a result of the Government amendment proposed today. It is important to have an independent and robust commissioner, who is seen as such.

I am concerned about the message that has come from the Government this morning about the character of the commissioner. We shall return to that question time and again. We have touched on it, and I know that we shall be soon come to amendment No. 170, but the right hon. Lady touched on it when she said that the commissioner, unlike those elsewhere, would not be able to investigate individual cases. She made the reasonable point that she did not want the commissioner to become bogged down, but looking at what the Government are proposing, they do not intend to allow the commissioner to investigate any cases at all. The commissioner is not duty bound to investigate all cases coming to him, and the effect of amendment No. 170—

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

I want to correct the hon. Gentleman, and refer him to clause 4, where we say that the commissioner will be able to make inquiries on individual cases, where issues of national significance are raised, and where such an inquiry would not involve duplication. It was after listening to the debate in the House of Lords that we introduced clause 4 as an amendment. If the hon. Gentleman's concern is about the commissioner's robustness, he may be mistaken. That clause gives us entirely what we want. In cases that have wide significance, the commissioner can investigate, but he will not be bogged down in the day-to-day cases that could be referred to alternative tribunals and bodies.

Photo of James Clappison James Clappison Conservative, Hertsmere

I am grateful to the right hon. Lady. If I was wrong about that, I stand corrected. We shall debate the point later about the commissioner acting at the behest of the Secretary of State. I have concerns about how the commissioner will be seen as a result of the changes that the Government are proposing today. I want an independent and robust commissioner, who is seen as such. Without going all the way into the rights debate, I feel that the commissioner's position is being diluted.

By asking the Minister about interests, I sought to clarify whether the commissioner would be able to promote the interests of children or merely awareness of children. The right hon. Lady looks at me as though she thinks there is no difference, but I think it will widely be seen that there is a difference between promoting awareness of something and promoting interests. That is quite clear and will be seen as such. I am concerned that we are putting in place a rather timid commissioner.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I agree that this has been a good debate. I regret that we have not each been given a copy of the UN convention on the rights of the child among the papers for this sitting. At times, it seems to have been characterised as a terribly narrow and dry document that attends only to the legalistic position of children. My right hon. Friend described it as an ethical framework, which it is—a broad ethical framework that encompasses a vast range of children's interests and needs, and which goes far wider than the five outcomes set out by the Government.

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

Does the hon. Gentleman agree that, within the framework, rights are a foundation stone rather than a constraint, and that they provide opportunities? Does he agree that by not including the word ''rights'' throughout the Bill, we are missing opportunities?

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I am grateful to the hon. Lady for expressing that better than I did. Rights are a foundation stone. They are something to be built on, are acknowledged almost universally in the UN convention, and are principles against which our efforts to meet children's needs can be tested. There is nothing wrong with rights. There is nothing narrow

about rights. There is nothing that rights impel us to do that we should not do. There is nothing about an emphasis on rights that would push the Children's Commissioner to operate as some sort of ombudsman.

With the greatest respect to my right hon. Friend, I think that she spent some parts of her speech tilting at windmills. In my years of taking an interest in the issue, I have come across no one who would say, ''We want a children's commissioner to do away with all the complaints systems, ombudsmen and children's rights officers, and to take on every single problem that comes their way.'' No one in their right mind would put forward that sort of model for a Children's Commissioner.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

The hon. Gentleman has just erected a windmill of his own. Of course no one said what he suggested, but there are people who say that the commissioner should have the right to investigate individual cases. Is he one of them?

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I am indeed one of them. I join the Government in approving clause 4. It is plain that there are occasions when the Children's Commissioner needs to have the opportunity to investigate—for example, when a child's problem is not investigated properly, perhaps because the child falls between various institutions and authorities. I am not concerned about that, as I think the commissioner would be able to balance taking on individual inquiries with taking a wide-ranging approach to children's issues, as my right hon. Friend says, and considering policy development and how issues affect children.

I hope the Children's Commissioner will take on the case of the child in custody who falls between the youth justice and the child care systems and who might be suicidal. I also hope that the commissioner will take on the issues that children regularly identify to me and, I suspect, to everyone else, such as transport, which is a priority for the Youth Parliament, bullying, which is a priority for very many children, and play areas, which children identified as a priority during the consultation but which is not reflected in the Government's five outcomes. Let us not assume that anyone is proposing that a children's ombudsman should replace all other provision.

The Government are clearly proposing that the Children's Commissioner should have a role in relation to interests, but not in relation to rights. The only difference between interests and rights is the significance that we attach to them and to the person who has those interests or those rights, and the duties that we impose, primarily on the state, to meet them. If we are serious about children, we should focus the Children's Commissioner firmly on rights. If we are serious about the commissioner, we should ensure that

he has the power to do the job. At the end of the day, this is about power. We need a powerful advocate for children in this country.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 12.

Division number 1 Adults Abused in Childhood — Clause 1 - Establishment

Aye: 8 MPs

No: 12 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.