Clause 5 - Other inquiries held by Commissioner

Children Bill [Lords] – in a Public Bill Committee at 2:30 pm on 14th October 2004.

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Amendment made: No. 17, in

clause 5, page 4, line 13, after 'child', insert 'in England'.—[Margaret Hodge.]

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move amendment No. 14, in

clause 5, page 4, line 14, leave out 'direct' and insert 'require'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following:

Amendment No. 15, in

clause 5, page 4, line 21, after 'must', insert

'as soon as is reasonably practicable'.

Government amendment No. 181.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It is a pleasure to welcome you to the Chair, Dame Marion, not because the previous Chairman was no good, but because it is always good to see you in the Chair. You may have missed all the high jinks this morning, when the Government hijacked all our amendments, but they have not hijacked amendments Nos. 14 and 15.

We think that there is an anomaly in the language of subsection (1), which states:

''Where the Secretary of State considers that the case of an individual child in England''— the last two words were added by one of the amendments hijacked in our earlier debate—

''raises issues of relevance to other children, he may direct the Children's Commissioner to hold an inquiry into that case.''

That appears to be contrary to all the warm words that we have heard from the Government in underpinning the supposed independence of the commissioner. We are therefore keen for the Minister to explain why—

Sitting suspended for a Division in the House.

On resuming—

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 3:18 pm, 14th October 2004

We are keen for the Minister to explain why the Government found it necessary to use the word ''direct'' in subsection (1), in the sense of directing the commissioner to hold an inquiry into an individual case. No commissioner in the other countries of the UK—or, indeed, in the other nations of Europe where such commissioners operate—can be directed or controlled in the way suggested by that wording. It is in direct conflict with the commissioner's independence and is unnecessary, because the

Secretary of State has existing powers to establish judicial-style inquiries and can invite the commissioner to carry out the work.

When the issue was raised on Third Reading in another place, Baroness Ashton of Upholland, the then Under-Secretary of State for Education and Skills, said:

''We do not envisage forcing the commissioner to do something against his or her will. Of course there would be discussion, debate and dialogue before any such direction was issued.''—[Official Report, House of Lords, 15 July 2004; Vol. 663, c. 1440.]

In that case, why must the Bill contain the word ''direct''? The Government can use debate and dialogue to persuade the commissioner to use his or her independent power under clause 4, which we have covered, to establish a formal inquiry. There can be only one purpose in retaining clause 5 as drafted: to give this and successive Governments legal power to force—another word for ''direct''—the commissioner to undertake an inquiry against his or her judgment. Amendment No. 14 would replace the word ''direct'' with ''require'', which is more in the spirit of the independence of the commissioner, as the Minister will no doubt agree but have some technical reason for wriggling out of.

Turning to amendment No. 15, for once the Government have not tried to hijack our amendment but have come up with one of their own—No. 181. It seems to want to achieve the same purpose as our amendment but with a different formulation: it would insert ''as soon as possible'' rather than the slightly more longwinded phrase ''as soon as is reasonably practicable'' in the context of Secretary of State publishing reports that he has received from the commissioner.

I am perfectly amenable to being told, for technical reasons, that the Government's wording is more legally appropriate, but I am less convinced that they will be able to come up with a case against amendment No. 14, as the Minister would not want to be accused of being unduly prescriptive.

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

It is a pleasure to serve under your chairmanship, Dame Marion. With your indulgence, I would like speak to both clause stand part and the amendments.

I am inclined to resist the amendments, because they undermine the independence of the commissioner. That is such a vital point—

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

Order. Would the hon. Lady speak just a little more loudly so that we can all hear what she is saying?

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

I apologise, Dame Marion.

We want an independent commissioner, and omitting the word ''require'' and substituting ''direct'' would not achieve the purpose that the hon. Member for East Worthing and Shoreham intends. Having any requirement or direction conflicts with the commissioner's independence. Obviously, the Secretary of State, can make a request, and I do not see how the Children's Commissioner could refuse a request. A request does not need to be in legislation

and I therefore feel that the entire proposal should be deleted. My hon. Friends and I will vote against clause stand part.

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

I entirely agree with the hon. Lady. I cannot understand why this extraordinary clause is in the Bill, as it utterly undermines the independence of the Children's Commissioner. I am not aware of any other children's commissioner in the world who works under a requirement by which they can be made to undertake an inquiry by the Secretary of State. We want a commissioner who is a thorn in the side of Government and that cannot possibly equate with his being required to do something by Government. If the commissioner is to be there for children and to listen to them, I do not see how on earth the Bill can have a requirement in the clause.

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

I am interested in the hon. Gentleman's argument. Is it not better to have someone to whom the Secretary of State may direct such a request or a requirement for an inquiry, rather than merely leaving it in the hands of the Secretary of State to pick someone—perhaps a noble Lord or a former Cabinet Secretary—to undertake the inquiry on his behalf?

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

Lord Laming did a thoroughly good job of the Climbie report but spent a colossal amount of time doing so. He could not have done anything with his time for many months other than conduct the inquiry, and that is part of my point. How can we seriously put a Children's Commissioner in such a position? He will make a commitment to children, timetable many meetings and discussions with the UK Youth Parliament, youth forums and young people throughout the country, and perhaps decide to work on a particular topic that young people have identified as important to them. Then he will suddenly have to say, ''I'm sorry, it's all off: meetings aren't going to happen, reports aren't going to be written and issues aren't going to be discussed because the Secretary of State requires me to do something else.''

That cannot possibly be right. If this is a Children's Commissioner, he should work to children's priorities, not the Secretary of State's. The Secretary of State might want to raise all sorts of important issues, but with all due respect he has a huge range of eminent people from which to choose to conduct such inquiries. If the Secretary of State firmly believes that the commissioner should take up a particular inquiry, he should not just direct or discuss the issue with him—let him darn well go out to the children and young people of this country and ask them if it is a priority for them that the commissioner takes the issue on.

The provision utterly compromises the commissioner's independence and is a fundamental flaw in the proposal. As I said to my hon. Friend the Under-Secretary of State for Wales earlier, I firmly believe that it will undermine any efforts for co-operation with other commissioners across the United Kingdom, let alone Europe or the rest of the world. In particular, I cannot see the other UK commissioners, who have been given independence by their bodies, being willing to engage with somebody who does not

have such independence or agreeing to any protocols on joint working that include someone who can be directed not by children but by the state to develop a line of inquiry. Clause 5 is completely wrong and should be dismissed.

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

I, too, welcome you to the Chair, Dame Marion. I am particularly pleased as you and I hold much in common. I gather that our photographs are next to each other in the school that we both attended, and until I looked you up I had not realised that you stood for election in my wonderful constituency in 1979, presumably when the late Jo Richardson won. I am delighted to work under your chairmanship. There may be a conflict of interest. We are probably the only two who ever went to that school.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Women)

Two extremely successful women.

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

Absolutely.

I want first to respond to the hon. Member for Mid-Dorset and North Poole and my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), because I am astounded by their contributions. We have spent a lot of time over the past day and a half discussing whether the commissioner should investigate individual cases. We are now talking about a situation in which there is an individual case of such national significance and import that the Secretary of State would want the commissioner to investigate it, and I suddenly hear the argument that we do not want the commissioner to spend all his time looking at individual cases. That is precisely the argument that I held in the opposite direction. I cannot understand it; I fail to see the logic of the argument that is being made by two people for whom I have enormous respect.

Our reason for saying that should the Secretary of State require the commissioner to undertake such an inquiry, there would be additional funding for it—I think that that was mentioned in an earlier debate—was to ensure that the commissioner's resources could not be eaten up in pursuit of a particular inquiry, however important it might be. We cannot have our cake and eat it. One can argue either that the commissioner should investigate no individual complaints—the Government have conceded that in both clause 4 and clause 5—or that he should be free to do so. One cannot argue that in one case he can but in another he cannot.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 3:30 pm, 14th October 2004

I am grateful to the Minister. I am not sure whether I am one of the people whom she is endeavouring to name and shame. I did not speak about individual cases. Can she confirm, because she would not tell us for sure on Tuesday, that if additional funds are to be allocated to the Children's Commissioner, they will be given purely as

supplementary funds for the additional work that he is being required to do, and for no other purposes will his work be directed and those funds be ring-fenced? She would not give that undertaking on Tuesday, but she is now trying to suggest that she did.

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

The point that I just made was that were the commissioner to be asked to undertake an investigation into a case of such national significance that the Secretary of State believed it warranted an inquiry, additional funding would be available. There is no intention for the Secretary of State or any Minister to intervene in how the commissioner chooses to expend the general budget that we have set, so long as he does so within the general functions that we determine.

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

In an effort to re-trek across the parallel universe that we seem to be inhabiting, can the Minister tell me, given that she supports clause 5 so strongly, whether she seriously believes that the Children's Commissioner is independent of Government?

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

Yes, I do. Time will tell whether it is my judgment or my hon. Friend's that is right.

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

Does the Minister accept what the clause empowers successive Secretaries of State to do? It puts into somebody's hands the enormous power to demand an inquiry that might be against the judgment of the appointed Children's Commissioner. If I am reading that correctly, I should be grateful for her comments. Does she have no concerns about that, for the future, if not for now?

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

I will respond to the issue of substance, which I think was the purpose of the amendment. The Secretary of State already has the enormous power to determine whether he will hold an inquiry into a particular case if he believes that it warrants it; he holds that power now. The issue that we are discussing is whether the commissioner is the appropriate person to undertake such inquiries, so let us deal with that under amendment No. 14.

I accept the purpose for which the amendment was tabled. However, I am told that the lawyers say that the difference between ''direct'' and ''require'' is pretty non-existent. Why have we chosen to put the word ''direct'' into the clause? This is a limited power to allow the Secretary of State to require the Children's Commissioner to lead an inquiry into a matter of such gravity that he feels an inquiry is appropriate. It is an extremely limited power. It adds to the Secretary of State's options for finding effective leadership to undertake exercises of this importance. It also has the significant practical advantage for the commissioner of creating a moral—if not a legal—obligation on the Secretary of State to fund such an inquiry properly with supplementary financial provisions, rather than expecting the commissioner to fund it from his annual budget.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I hear what the Minister says, but what is the difference between the Secretary of State's existing power to establish judicial-style inquiries, as

with Lord Laming, which would be funded directly, and getting the Children's Commissioner to do it? In what circumstances does she envisage that she would want the Children's Commissioner to be told to hold an inquiry that he is reluctant to initiate himself, that could not be achieved by appointing a Lord Laming-type inquiry which he already has the powers to do?

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

One of the purposes of establishing a Children's Commissioner is that we have a function within the landscape that will develop a specific expertise for carrying out the sort of inquiries that Lord Laming did so effectively in relation to the death of Victoria Climbie. If we create that function, the Children's Commissioner seems the obvious person whom the Secretary of State would ask to undertake the inquiry. Undoubtedly there are other experienced people in the House of Lords or elsewhere who could do the work, but if we have a specific body established to protect children's interests, surely it is the obvious body to which to turn if there is a case of such importance that we want to have a proper inquiry to look at its national significance.

As Lady Ashton said in the other place, in reality the Secretary of State would want to discuss the matter with the commissioner to ensure that they reach a mutual understanding. I find it extremely difficult to envisage any situation where the Secretary of State considered that the case was of such importance that it warranted a national inquiry and the commissioner did not concur with that view. Perhaps other hon. Members can help me.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The Minister makes the point exactly—so why put it into the Bill where there are two fallbacks? First, the Secretary of State can order a judicial inquiry by Lord Laming's equivalents; and secondly, it would be part of the performance-related material and could count against the commissioner in an assessment. There are two checks and balances there, so why does it need to be put so forcefully when it appears so prescriptive in the Bill?

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

In the situation where Parliament and the public express such horror and concern about a particular incident, the Government should be seen to respond on behalf of us all in a strong and measured way. Having that power of direction reflects the gravity of the sort of case we envisage being subject to a specific inquiry directed by the Secretary of State and hence we have used those words.

A lot has been made of that issue. I ask that amendment No. 14 be not pushed to a vote not only because it will make no difference in practice but so that hon. Members understand the intent behind the phraseology of the clause, and its importance as it stands.

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

Unless I have missed something, that seems merely to be so that the Secretary of State can show that he is doing something. That is the tenor of what the Minister said to my hon. Friend.

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

The Secretary of State can do something in any case; he has that power. In the instance of a grave and terrible tragedy, which is the sort of situation that might require such an inquiry, the gravity of the case would require us to have a stronger response—so requiring the commissioner to undertake an inquiry is appropriate.

The intent of the Opposition's amendment No. 15 and ours is the same. As I said when speaking to an earlier amendment—this is lawyers' heyday stuff—our wording more appropriately meets the intent of the Opposition Members who tabled amendment No. 15. The words ''as soon as possible'' would make it a duty to do everything one could to make it a priority, whereas

''as soon as is reasonably practicable'' could be interpreted as less pressing, and would allow one to take other matters into account and to prioritise on the basis of what one could reasonably do. Given that the intent is the same, and that the advice of parliamentary draftsmen is that our wording would give better effect to that intent, I hope that we can agree to the Government amendment.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It has been an interesting debate, but I am not altogether convinced at the end of it. We have heard some rather weak arguments. I think that the cat was let out of the bag when, in justifying her comments to my hon. Friend just now, the Minister said that in such grave circumstances it would be appropriate to ''require'' the commissioner to conduct an inquiry. That is the very word that we used in our amendment, not ''direct''. She makes the legalese point—we must take officials' word for it—that there is little difference in drafting between ''require'' and ''direct''. That is as may be. Certainly there are enough people who are better versed than me in such matters who think that the word ''direct'' is unduly prescriptive and would feel much happier with the word ''require'', but I think that there is a difference. However, she tells me that she accepts the meaning of the amendment.

I also accept her point about the difference between

''as soon as is reasonably practicable'' and ''as soon as possible''. We shall not argue the toss over that one. However, I am not happy that she has made a suitable case against amendment No. 14, although her language suggests that she agrees with the thrust of what we are saying. I shall not push the amendment to a vote, and we may return to it on Report. However, she might like to reflect on the language, as the amendment would not compromise her position but might send out some good messages to those who set a lot of store by the wording.

We did not agree with striking out the whole clause, although I can entirely see why some Government and Liberal Democrat Members want to do so, because they think that it completely compromises the independence of the commissioner. If that were the case, I would have a good deal of sympathy with that position, because of the five principles that I set out this morning on how the legislation relating to the commissioner would be judged. If we simply struck

out clause 5, we would lose some strategic elements, because there are no replacement amendments to insert some of those aspects. For example, the clause authorises the commissioner to hold inquiries in private where appropriate, such as if there are sensitive issues with particular children. Where a child's identity might be compromised, there are various courses of action that could be taken under subsection (5).

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 3:45 pm, 14th October 2004

Are those issues not catered for in clause 4—''Inquiries initiated by Commissioner''—and certain subsections of clause 2?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

We are dealing with different sorts of inquiries. The wording is slightly different, so I am not sure about that, but the hon. Gentleman has raised a good point, which is why the Government must reflect on the wording of the amendment. We have already had a big argument about clause 4(8) and (9) and the issue of devolution, which I shall not return to.

The wording of the clause is unsatisfactory. I hope that rather than having to vote against the clause, the Government will come back on Report with a reworded clause to reflect our concerns and those of other hon. Members. If they are not prepared to do that, there will be a good case for voting against it on Report.

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

Given that the hon. Gentleman is prepared to support the clause to the extent of not voting against it, does he share my concern that somebody who can be required or directed to inquire into grave cases no longer has the facility to base their interests on children's rights after the amendments made yesterday?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I heard the points that the hon. Gentleman made and we are sympathetic to each other's cases. That is why, for the purposes of getting on to another clause that does not involve the Children's Commissioner—we are almost halfway through the time allocated for this stage of the Bill—I shall withdraw the amendment. However, I reserve the right to return to the issue on Report when we may raise our concerns again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 181, in

clause 5, page 4, line 22, at end insert 'as soon as possible'.

No. 182, in

clause 5, page 4, line 34, leave out from 'section' to end of line 46.—[Margaret Hodge.]

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 11, Noes 3.

Division number 5 Adults Abused in Childhood — Clause 5 - Other inquiries held by Commissioner

Aye: 11 MPs

No: 3 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6 disagreed to.