Clause 4 - Inquiries initiated by the Commissioner

Children Bill [Lords] – in a Public Bill Committee on 14th October 2004.

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Amendment proposed [this day]: No. 11, in

clause 4, page 3, line 22, after 'child', insert 'in England'.—[Mr. Touhig.]

Question again proposed, That the amendment be made.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne 2:30 pm, 14th October 2004

I remind the Committee that with this we are discussing the following:

Government amendment No. 178.

Amendment No. 12, in

clause 4, page 3, line 41, leave out 'and Wales'.

Government amendments No. 13, 17 and 182.

Amendment No. 18, in

clause 5, page 4, line 34, leave out 'and Wales'.

Amendment No. 19, in

clause 5, page 4, line 36, leave out subsections (8) and (9).

Amendment No. 195, in

clause 6, page 5, line 4, leave out paragraphs (a) to (c) and insert—

'(a) any matter regarding children in Wales;

(b) any matter relating to children in Scotland; or

(c) any matter relating to children in Northern Ireland.'.

Amendment No. 198, in

clause 6, page 5, line 4, leave out paragraph (a) and insert—

'(a) any matter relating to children in Wales'.

Amendment No. 21, in

clause 6, page 5, line 11, at end insert—

'( ) The Secretary of State, in regulations, must specify procedures for applying this legislation to children normally resident in England engaged in education, treatment and other activities in another part of the United Kingdom, and specifying which body is to be the responsible authority.'.

Amendment No. 196, in

clause 6, page 5, line 14, at end insert—

'(3) It shall be the sole responsibility of the Children's Commissioner for Wales to—

(a) hold an inquiry under sections 4 and 5 as regards to children in Wales; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Wales.

(4) It shall be the sole responsibility of the Commissioner for Children and Young People in Scotland to—

(a) hold an inquiry under sections 4 and 5 as regards children in Scotland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Scotland.

(5) It shall be the sole responsibility of the Commissioner for Children and Young People in Northern Ireland to—

(a) hold an inquiry under sections 4 and 5 as regards children in Northern Ireland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Wales.'.

Clause 6 stand part.

Government new clause 27—Functions of Commissioner in Wales.

Government new clause 28—Functions of Commissioner in Scotland.

Government new clause 29—Functions of Commissioner in Northern Ireland.

New clause 6—Relationship between Commissioners—

'( ) The Children's Commissioner shall consult and work together with—

(a) the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland on matters concerning children's rights and interests throughout the United Kingdom; and

(b) the appropriate Commissioner or Commissioners on matters concerning children's rights and interests which appear to affect children in Wales, Scotland or Northern Ireland in addition to England, unless the matter relates principally to events or circumstances in England.'.

New clause 7—Relationship between Commissioners (No. 2)—

'The Children's Commissioner shall consult and work together with—

(a) the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland on matters concerning children's rights and interests throughout the United Kingdom; and

(b) the appropriate Commissioner or Commissioners on matters concerning children's rights and interests which appear to affect children in Wales, Scotland or Northern Ireland in addition to England.'.

New clause 18—Extension of the powers of the Children's Commissioner for Wales—

'(1) Section 75A of the Care Standards Act 2000 (additional power of consideration and representation) is amended as follows.

Leave out subsections (1) and (2) and insert—

''( ) The Commissioner may consider, and make representations about, any matter affecting the rights and welfare of children in Wales to—

(a) the Assembly, and

(b) where the matter is not devolved and the Commissioner considers it appropriate, the responsible United Kingdom Minister of the Crown or government department.''.'.

New clause 33—Requirement to review the working of the effect of the creation of a UK children's commissioner on the function of the existing commissioners in the nations of the UK—

'(1) Each of the Children's Commissioners in the UK shall monitor the effect of having more than one Children's Commissioner operating in their nation simultaneously.

(2) Each of the Children's Commissioners shall make reports to the Secretary of State, the National Assembly, Scottish Parliament and the Northern Ireland Assembly on the findings of the provisions specified in section 1(a) and (b) above and in accordance with the following provisions of this section.

(3) The report shall, in particular, consider the impact of having more than one Children's Commissioner representing children in Wales, Scotland and Northern Ireland, including—

(a) the overall level of understanding of children in the UK nations as to the division of responsibility between the different Commissioners representing them;

(b) the effectiveness and role of the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland; and

(c) any evidence of duplication in work undertaken by the commissioners.

(4) The reports under this section shall be made as soon as practicable after the second anniversary of the coming into force of Part 1 of this Act.

(5) In producing a report under this section the Children's Commissioners shall consult—

(a) children;

(b) representatives of organisations concerned with children's rights and interests; and

(c) the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly.

(6) A Report under this section—

(a) shall include the views of the Children's Commissioner on the adequacy and effectiveness of this part; and

(b) may contain recommendations to amend this Act.

(7) The Secretary of State shall lay a copy of every report sent to him under this section before each House of Parliament.'.

New clause 35—Review of exercise of functions of Assembly and other persons—

'( ) Section 72B of the Care Standards Act 2000 (c.14) (review of exercise of functions of Assembly and other persons) is amended as follows.

( ) In subsection (3), omit paragraphs (a) and (c)

( ) Omit subsections (4) and (6).'.

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

Welcome, Dame Marion, to this excellent Committee. As I was saying when Mr. Benton wisely interrupted me, I accept entirely the good sense of what my hon. Friend the Member for Cardiff, North (Julie Morgan) was saying, but given the provision in clause 5 for the English commissioner to be directed by the Secretary of State, is there not a problem about the establishment of protocol between the commissioners of the various parts of the United Kingdom? Will not that inevitably lead to the other commissioners feeling unwilling to engage in any protocols when they could be directed by the English commissioner, or when he could be directed to deal with children from their countries, rather than them dealing with matters themselves?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I welcome you, Dame Marion, to the Chair, and look forward to your guidance and direction throughout this sitting.

In response to the point made by my hon. Friend, I simply say that I hope that they would not be so childish. The Bill is intended to promote the interests of children. People may not like aspects of the Bill, but I hope that the fact that it gives power to the Minister to give directions to the commissioner for England will not mean that colleagues in other parts of the UK will feel unable to co-operate or work with that commissioner. Parliament, not the commissioner, will decide what powers the commissioner will have. He or she will in no way be able to influence that, and I hope that that will not happen.

My hon. Friend the Member for Cardiff, North opened her remarks by saying that this is a good Bill. I understand her concerns about the powers of the commissioner in Wales, and the overlap of the powers of the English commissioner to investigate matters in Wales in reserved matters, but I am sure she would

agree that the narrow point on powers, which perhaps divides us, should not take away from the fact that the Bill will benefit children. She made the point that members of the Welsh Affairs Committee and others feel that the Children's Commissioner for Wales should have powers to look into matters currently reserved to the Government here in Westminster.

The hon. Member for East Worthing and Shoreham (Tim Loughton) asked where the buck stops. The buck stops here in Parliament, with us. That is the devolution settlement under which we are working; it was proposed by this Government, it was approved by Parliament and it received the consent of the Welsh people in a referendum. We are not, in this Bill, rewriting the devolution settlement. I must make it clear that the Government line has been, and remains, that the Children's Commissioner, appointed by the Government in Westminster, must have responsibility for matters within the remit of this Parliament. To do otherwise would, as I have said, be contrary to the devolution settlement, and outside the scope of the Bill.

My hon. Friend the Member for Cardiff, North went on to ask if the Government had done any detailed work on the possibility of a memorandum of understanding, which would allow the commissioners throughout the UK to work collaboratively. The short answer is no. We think that it would be wrong to do so, because it would pre-empt the commissioners and impinge on their independence. We consider that independence important, and we would expect the commissioners themselves to agree the protocols and the details of how they would work together.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

As I understand it, the Minister's case rests on there being a satisfactory memorandum, or some memorandums, of understanding between the commissioners. Is not it therefore reasonable that hon. Members should have some indication about the scope of those memorandums ?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

The difficulty that we would have is that that would be seen as compromising the independence of the commissioners. They will have the opportunity and the ability—because of the work done by those already in post—to work out a best way of working between them. We must give them that chance

My hon. Friend the Member for Cardiff, North asked whether the matters covered in her amendments and others in the group might be further considered on Report. That is, I regret to tell her, very unlikely if the Committee agrees to these amendments today. The hon. Member for Brecon and Radnorshire (Mr. Williams) referred to the devolution settlement and the scope of the Bill. He was right to set the amendments in that context, and the points that I have made in response to my hon. Friend the Member for Cardiff, North answer his queries.

I understand hon. Members' concerns about the powers of the Children's Commissioner for Wales and the fact that he will not be able to investigate reserved matters. I do not share those concerns for the practical reasons that I gave this morning. I was a little

concerned by the tone of the comments made by the hon. Member for Brecon and Radnorshire this morning, not least because they failed to support me. We have to be careful about the language that we use. We should not paint a completely dark picture of the Bill, and we should not be intemperate in our comments, as it is not helpful.

We Welsh have a dark side. We like to have a bit of misery and grief; it is something that God has blessed us with. But the Bill is something to celebrate, and we should say that it is a bad Bill simply because there is a small difference over the powers of the commissioner. It will be good for children in Wales and throughout the United Kingdom. The hon. Gentleman mentioned problems that he thought might occur and cited the Clywch inquiry, asking whether such an inquiry could take place once the Bill is enacted?

Nothing in the Bill would prevent the Children's Commissioner for Wales from carrying out a Clywch-type inquiry. No reserved matters were directly involved in that inquiry. If devolved matters were involved we could reasonably expect the commissioners to arrive at a sensible arrangement that best fits the circumstances and allows the Welsh commissioner to address the issues within his remit. The English commissioner may support that, but he could not, through clause 4, duplicate an inquiry of his own.

The hon. Member for Isle of Wight (Mr. Turner) made some telling remarks. He commented on the remarks made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) and my hon. Friend the Member for Cardiff, North. They were very interesting points, but he will forgive me if I add that I could not possibly comment.

Amendment No. 12, tabled by the official Opposition, is superseded by Government amendments, which make it clear how inquiries under the clause may be taken forward by the English commissioner. Amendments Nos. 18 and 19 are likewise superseded but relate to inquiries under clause 5. The hon. Member for East Worthing and Shoreham suggests that there has been some hijacking at the end. I ask him to be generous and to share with me. Is it not our duty here to make good law? If we can do so collaboratively, that is a good thing. If he feels ownership of any of the things that we are doing in the Bill, I thank him. That is about as close as he will get to government for a long time.

Amendments Nos. 195, 196 and 198 were tabled by the hon. Member for Caernarfon (Hywel Williams). We all regret his absence this afternoon; we wish him well and hope that he returns to good health. We know the valuable work that he has done. His amendments would go further and give the devolved commissioners the power to undertake inquiries in their areas. New clause 35 would also allow the Welsh commissioner to take on broader functions with respect to reserved issues than at present.

We do not agree that it is right for the existing commissioners to have functions that do not reflect the various devolution settlements. The ultimate losers

will be the children concerned, whose voices will not be heard in this House on matters that are decided here and on which Ministers answerable to this House have a say. The Government are fully aware that the commissioners must work together sensibly for the good of all children. This batch of Government amendments, of which new clauses 27 to 29 are the main ones, have been drafted after detailed consultation, and they represent the way forward.

New clause 18, which my hon. Friend the Member for Cardiff, North promoted, would also extend the power of the Welsh commissioner by allowing him to report directly to the UK Government on non-devolved issues. Although that sometimes happens informally, as I explained this morning, we must work within the devolution settlement as it stands. The Children's Commissioner, who will report to the House through the Secretary of State for Education and Skills, cannot totally relinquish responsibility for matters in Wales that may remain the responsibility of Government here in Westminster.

I appreciate the intention behind amendment No. 21, which is to ensure that no child misses out because of a division of territorial responsibilities. I reassure the Committee that any child in any part of the UK with issues that they wish to raise will be able to do so with the commissioner in whose territory they find themselves. Even if they are on a day trip, they could call on the help, advice or services of the commissioner in that country.

New clauses 6 and 7 would require the commissioners to work together. The broader, less prescriptive wording of the Government's amendments will serve the commissioners better than new clauses 6 or 7. The purpose of any amendment on this subject is to ensure that the commissioners work closely together to the best benefit of all children in the UK. Given those assurances, I hope that the hon. Members for East Worthing and Shoreham, for Epping Forest (Mrs. Laing), and for Bury St. Edmunds (Mr. Ruffley) will feel able to withdraw their amendments.

New clause 33, also tabled by the hon. Member for Caernarfon, promotes the idea of a statutory review by all four commissioners into how the joint working arrangements will function. Given that we wish to achieve a practical solution for children throughout the UK with a minimum of restriction, we need to ensure that our arrangements work in practice and to consider future changes dependent on that. Equally clearly, the commissioners will be well placed to do that, reflecting the views of children and young people whom they have helped and advised in their respective nations. However, I am not convinced that the amendment is necessary to achieve that. Although I see merit in its intent, the commissioners may wish to review how the joint working arrangements are operating and will want to take any opportunity to make comments to this Government or the respective Administrations in the devolved nations.

The Government's amendments provide a mechanism on non-devolved issues which is appropriate in practice and will allow the

commissioners to work together under a memorandum of understanding. It will ensure that the views of children throughout the UK are made known and that the helpful advice and protection that we can give them is expressed. It is a practical and principled solution to the issues before us, and I urge the Committee to support our amendments.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

It is a great pleasure to serve under your chairmanship, Dame Marion. We have reached almost a stalemate. The arguments have been made on both sides and there seems to be little give. I was disappointed that the Minister was unable to give any comfort to the hon. Member for Cardiff, North that changes could be made between the Committee and Report stages.

It is not right to legislate on the basis of the worst possible scenario. In this case, the worst possible scenario would be an English commissioner at complete loggerheads with a commissioner in Wales, resulting in turf wars. I am sure that there is plenty of provision in the Bill for sorting out that situation. However, neither is it right to legislate on the basis of the best scenario, which would be of a happy, charming Minister in the Wales Office, a charming Minister in the appropriate Department and commissioners who get on well together and are able to work for the benefit of children. It is therefore important for the Bill to provide a better idea of how things will work in practice. The Minister tells us that it is fine, and that it is working in practice. However, the legislation does not concur with what is happening at present; if there were greater concurrence, the state of affairs would be happier for children in Wales and in England.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I, too, am extremely disappointed that the Minister indicated that there will be no further study of the proposals, nor any further effort made to reach an agreement by which all the people involved in the different countries can come together. It would be simple to devise a solution that satisfied everyone. The proposals as they stand are disappointing.

In general, I think that the Bill is good, and I want to rejoice with everyone else about it. However, it is a shame that there could not have been more flexibility over these issues, so that a solution could be reached which satisfied people in Wales in particular. I intend to support the Government's amendments, which, where they insert ''in England'', improve the situation by making it much clearer. However, I want to register my strong feeling that Government new clause 27 will make the situation for Welsh children confusing and will not be a step forward.

Amendment agreed to.

Amendments made: No. 177, in

clause 4, page 3, line 39, at end insert—

'(6A) Where the Children's Commissioner has published a report under this section containing recommendations in respect of any person exercising functions under any enactment, he may require that person to state in writing, within such period as the

Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations.'

No. 178, in

clause 4, page 3, line 41, leave out from 'section' to 'with' in line 42.

No. 13, in

clause 4, page 4, line 1, leave out subsections (8) and (9).—[Mr. Touhig.]

Clause 4, as amended, ordered to stand part of the Bill.