HL Deb 18 July 2000 vol 615 cc959-66

(" .—(1) There shall be an office of the Children's Commissioner for Wales or Comisiynydd Plant Cymru.

(2) Schedule (The Children's Commissioner for Wales) shall have effect with respect to the Children's Commissioner for Wales (referred to in this Act as "the Commissioner").")

Baroness Farrington of Ribbleton

My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 88. I shall speak also to Amendments Nos. 89 to 94, 184, 186, 202, 207, 277 and 288.

The Secretary of State for Wales announced on 2nd March the Government's intention to bring forward an amendment to the Bill to establish in Wales an independent children's commissioner on a statutory basis. The case for a children's commissioner was made in part by the Welsh social services White Paper, Building for the Future. There had also been calls for it by bodies such as Children in Wales, the Welsh Local Government Association and the Welsh Affairs Committee of another place, as well as in evidence given in 1997 and 1998 to the North Wales child abuse tribunal.

The establishment of the children's commissioner became an Assembly manifesto commitment of all the political parties in Wales except the Conservatives, who have subsequently supported the principle. Finally, Sir Ronald Waterhouse recommended in his report Lost in Care that an independent children's commissioner for Wales should be appointed.

That was the context of the Secretary of State's announcement. Sir Ronald recommended that the commissioner's duties should include ensuring that children's rights are respected through the monitoring and oversight of the operation of complaints and whistleblowing procedures and the arrangements for children's advocacy; examining the handling of individual cases brought to the commissioner's attention, including making recommendations on their merit when he or she considers it necessary or appropriate; and publishing reports, including an annual report to the Assembly.

The amendments put those recommendations into effect for the full range of children's services within the scope of the Bill—not just children looked after by local authorities but domiciliary care, private hospitals and clinics, day care and childminding services and children living away from home in boarding schools.

The National Assembly for Wales is committed to a children's commissioner to promote and safeguard the rights and interests of all children in Wales. Such a commissioner would be beyond the scope of the Bill. The Assembly is in discussion with the Secretary of State for Wales about an early legislative opportunity.

In the meantime, Amendments Nos. 88 to 94 and 207 implement the first two recommendations of the Waterhouse report. Provision is made in Amendment No. 88 for the establishment of the office of the children's commissioner for Wales. Amendment No. 89 deals with the commissioner's functions in reviewing and monitoring arrangements made by providers of services in Wales or by the Assembly in respect of services for children regulated under the Bill to ascertain their effectiveness in safeguarding and promoting children's rights. There are three aspects, in line with the Waterhouse recommendations, covering complaints procedures, whistleblowing and advocacy arrangements.

Under Amendment No. 90, the Assembly will also be able to confer power on the commissioner to examine particular cases and to make regulations governing their examination. It is not the Assembly's intention that the commissioner should routinely take the place of existing complaints procedures but that he or she should investigate situations in which a matter of principle is involved or in which there is evidence of a systematic breach of children's rights. Under subsection (3), regulations may confer power on the commissioner to require prescribed persons to supply information for the purposes of his examination functions. In that respect, the commissioner would have the same powers as the High Court. The sanctions that may apply if the commissioner is obstructed from receiving such information mirror the sanctions that apply if the High Court is so obstructed. They are dealt with in Amendment No. 91.

Amendment No. 92 deals with the further functions that may be conferred on the commissioner by the Assembly. They include the power to assist a child in making a complaint or representation about any regulated children's services in Wales or in any prescribed proceedings. It is envisaged that the commissioner would use the power sparingly, usually in circumstances where there is a matter of principle at stake involving a "test" case. The commissioner may also give advice and information relating to his functions to any person under this clause.

The Assembly may confer further functions on the commissioners in connection with the functions already set out. It particularly may want to make provision for the arrangements to apply where the commissioner has made recommendations in a report—for example, how the commissioner deals with responses and follow-up action, or the lack of it. Such procedures could include publication of non-compliance with recommendations.

Finally, the clause sets out the restrictions in respect of naming people in a report but, for the purposes of defamation, the publication of any matter in a report will be absolutely privileged.

Under Amendment No. 93, the commissioner will not be able to exercise functions in circumstances which are subject to, or have been determined by, legal proceedings in a court or tribunal; or where they duplicate functions exercised on a statutory basis by other, prescribed people.

The commissioner's functions and powers will extend to children being provided with regulated services in Wales. Amendment No. 94 defines such services as services for children regulated under the Bill. By virtue of subsection (6), regulations may provide that the commissioner can exercise his functions in respect of a matter that occurred prior to the commencement of his functions; and that he can exercise his functions in respect of an adult who was a child receiving regulated services during a prescribed time. This is to ensure that the commissioner is able to "hit the ground running" and does not have to wait for new incidents to happen before he can investigate them.

Amendment No. 277 introduces a general transitory provision to enable the Assembly to empower the commissioner to exercise jurisdiction in the period following enactment but before the rest of the Bill has been implemented. So the commissioner would, for example, be able to review complaints procedures in children's homes with fewer than four residents before the relevant commencement order is in force in Wales.

Amendment No. 207 deals with a range of practical details. Amendments Nos. 184, 186, 202 and 288 are technical amendments relating to consequential and supplementary provision and the addition of the commissioner to the Long Title of the Bill.

The establishment of the children's commissioner for Wales is a significant development in ensuring that the rights of children in Wales are safeguarded and promoted in line with the recommendations of Sir Ronald Waterhouse. I therefore strongly commend these provisions to your Lordships.

Moved, That the House do agree with the Commons in their Amendment No. 88.—(Baroness Farrington of Ribbleton.)

11.30 p.m.

Earl Howe

My Lords, I thank the Minister for introducing these important and lengthy amendments. They are of considerable significance for the supervision of children's services in Wales and will make that supervision safer and better.

In particular, the creation of a children's commissioner for Wales will contribute considerably towards the more effective protection of children in the care system. The appalling deficiencies and abuses in the treatment of significant numbers of children in Welsh residential homes were graphically described by Sir Ronald Waterhouse in his report, Lost in Care. No one reading the report could seriously argue for the status quo in the regulation and supervision of children's homes. These amendments are a useful and necessary first step in implementing Sir Ronald's recommendations and I welcome them.

They do, however, give rise to a number of questions. We understand from the Government that the role, powers and remit of the children's commissioner will in due course be widened so as to encompass not simply the services for children regulated by the Bill but also the full range of activities to which Sir Ronald Waterhouse drew attention. Moreover, the commissioner will be an independent office holder. He will be independent of government and of the Welsh Assembly.

Contrast that with the situation in England. The services for children regulated by this Bill will be overseen by the National Care Standards Commission and, specifically, by the children's rights director. In fact, I should have referred to some of the services because childminding will be the exclusive province of Ofsted. The children's rights director is not an independent office holder but an employee of the commission.

Some of us argued in Committee—and I was one—that there should be an individual commissioner at board level and that he should not simply be an employee of the commission. He should be responsible for a wide range of children's issues including many of the functions now being assumed by the Welsh commissioner. Those arguments were batted away by the Minister. We were told that a children's rights director was all that was necessary to achieve what the Government had in mind.

Therefore, the Bill introduces, in my judgment, an immediate mismatch between Wales and England. Not only do we have the contrast between an independent commissioner and an employee of the National Care Standards Commission, but we also have a contrast between their respective powers and duties. Furthermore, we have a mismatch between the future wider remit of the Welsh commissioner and the role of the children's rights director, which is necessarily limited and confined by the remit of the Commission.

Opposition amendments to create an independent children's commissioner for England were rejected in another place. On these Benches, particularly in the light of Waterhouse, we see a role for such an individual on a much wider stage, if I may so put it, than that created by this Bill. He or she should have a remit to examine government policy and legislative proposals across the entire range of government departments and to represent the interests of children who will be affected by such proposals. Ideally, such an individual would have a UK-wide remit.

That is only our idea. The Government may well have different ones. I do not understand why the Government, in the light of Waterhouse, have not taken the opportunity to break out of the confines of the Bill as originally drafted to set up a fully fledged independent children's commissioner for England or indeed for England and Wales combined. It is not as though the kinds of abuse highlighted in Lost in Care are confined simply to Wales. Only a few days ago we read of a very serious set of allegations being made in connection with children's homes in, I believe, Lancashire. Sir Ronald himself made it clear that the problems that he highlighted in Wales need not be thought of as being exclusively Welsh. That may sound like a statement of the obvious, but it needs saying.

I should like to hear from the Minister, first, as to the differences in the respective functions of the children's commissioner on the one hand and the children's rights director on the other, as defined by this Bill; and, secondly, by what mechanisms in the longer term she sees the recommendations of Waterhouse being implemented on either side of the English/Welsh border.

Lord Clement-Jones

My Lords, the noble Earl has raised some very important points on this series of amendments. I do not need to go into much greater detail than he has already since they are precisely the questions that I wish the Minister to answer when she replies.

I believe that it was the noble Baroness, Lady David, who tabled the original amendment about a children's commissioner. While one understands that the implementation of the Waterhouse recommendations should first take place in Wales, I cannot understand the logic for not extending the same provision to England. It may be that essentially the Government are saying that the powers of the commissioner are effectively the same as those of the children's rights director. Is this a rose by any other name? If that is the case we need an assurance from the Minister that the explicit powers provided to the commissioner will also be available to the children's rights director when the regulations are made. Can the Minister give an assurance that the regulations to be made will exactly reflect the provisions in the primary legislation as they apply to Wales? When will those draft regulations be made? Like the noble Earl, Lord Howe, I seek a considerable amount of further information about the whys and wherefores of treating the two jurisdictions so differently.

My final point is probably one that should not be made at this time of night. In connection with Amendment No. 277, I noted that the Minister described the amendment as transitory rather than transitional. I wonder whether that is a new government description of the effect of certain clauses.

Lord Roberts of Conwy

My Lords, this part of the Bill which establishes a children's commissioner for Wales has been much heralded. It is primarily the outcome of the report by Sir Ronald Waterhouse on child abuse in North Wales. He reported in February after this Bill had had its Second Reading. His very first recommendation was that, An independent Children's Commissioner for Wales should be appointed". He went on to outline the duties of the commissioner.

The recommendation was accepted by the Government in their response to the report, which was a very important milestone. The recommendation was also considered in some depth by the National Assembly and at least two of its committees. It appeared that the Assembly wished the commissioner's remit to extend to all children in Wales. I agree with the Minister that that goes over the top. As the Bill stands, the commissioner's remit is confined to children in all care services regulated by the legislation, and I believe that to be a good place to start.

I understand that discussions between the Assembly's Health and Social Services Secretary, Jane Hutt, and the Secretary of State for Wales, Paul Murphy, continue. However, I believe that they would be well advised to wait and see how they get on with the implementation of this part of the Bill before they seek to extend the role of the commissioner still further. I agree with the Minister that this Bill is not suitable for such an extension.

In view of the past history of abuse in North Wales and what is coming to light elsewhere as a result of police inquiries—the example of Lancashire was referred to by my noble friend Lord Howe—I welcome the appointment of a commissioner as proposed in the Bill. I wish the office all success in the performance of the functions ascribed to it.

However, two points concern me. The first is the curious provision in Clause 75(6) which prohibits the commissioner from identifying in a report anyone other than the person being investigated. It is the publication of the name of the person being investigated that concerns me. The investigation may arise as a result of a child's complaint. The case may or may not involve a criminal offence; the complaint may or may not be soundly based. In either case, the person who is being investigated may attract a great deal of adverse public attention and will have no remedy in the law of defamation, as is made clear in subsection (7).

In my view, the commissioner will have to exercise the utmost care, as did Sir Ronald Waterhouse in the conduct of his inquiry, if the reputations of innocent people are not to be maliciously damaged. At this point, I shall say only that there is a lot of chequebook journalism about and that people who are involved and work with children in care must be protected. We must be careful that the work remains possible and that people are not scared off, leaving a shortage of those available to take care of children.

My second concern arises from the retrospective aspect of Clause 77(6) and the power to make regulations which apply to childcare before this part of the Bill came into effect. We do not like retrospective legislation at best, but it is proposed in this context. Does it mean, for example, that the cases thoroughly examined by Sir Ronald could be reopened if the Assembly so provided? That would be reopening a can of worms which I thought Sir Ronald scoured most judiciously. I should be grateful for an explanation of what is meant by that subsection.

Baroness Farrington of Ribbleton

My Lords, feeling slightly like an Alice in Wonderland character, the answer to the noble Lord, Lord Clement-Jones, is, when I say "transitory" I mean "transitional".

A range of issues has been raised. As all noble Lords recognise, this is an extremely important development and follows a harrowing account of years of suffering by children. The questions covered the children's rights director and the children's commissioner for Wales, and the similarities and differences between their posts. The key similarities between the two are that both will be able to investigate whistle blowers and the procedures set up for them, the effectiveness of complaints systems and the effectiveness of advocacy services. Potentially, both can examine individual cases and both can report to government—to the National Assembly and the Secretary of State for Health. Both are independent of government. Both posts will ensure that children's voices are listened to at the highest level, and both are senior appointments representing significant new safeguards for children.

There are differences. The children's commissioner for Wales will be empowered to set up his own office and employ staff. The children's rights director, as a senior employee of the national care standards commission, will not need such powers. The children's commissioner for Wales will possess specific powers, including the right to demand the protection of information, the right to call witnesses and the right to certify an offence to the High Court if he is obstructed in the exercise of his powers.

In England, the CRD will not have those specific powers but will rely instead on the powers prescribed to NCSC, which will be at least as strong. The functions of the children's rights director are limited to those of the NCSC. The commissioner in Wales is limited by the functions set out in this Bill, which are broadly the same. However, further primary legislation could extend the responsibilities for the Welsh commissioner in a way that would not be achievable for a post within the NCSC.

A range of issues are concerned with the differences in the regulation of provision for children under the age of 8, with a different role in England where the services will be regulated separately by Ofsted and will not be in the remit of the NCRD. That is the one big difference between the two.

The functions and powers under the Care Standards Bill will be very similar. The difference in structure derives primarily from the different constitutions of the regulatory bodies that will be set up in both places. I note the point raised by the noble Lord, Lord Roberts, that perhaps the Assembly should wait a while before it assesses how things progress. One of the elements of devolution is that ultimately that is a matter for judgment by the Assembly.

The noble Lord, Lord Roberts, did me the courtesy of telling me the detailed points that he intended to raise. With regard to Amendment No. 92, the commissioner will have discretion to name individuals under subsection (6) if, after taking into account the public interest and that of the complainant and other people, he or she considers it necessary.

We believe it is extremely important that it is recognised that the main role of the commissioner is to monitor the operations of systems rather than to attribute blame to individuals. Ultimately, the attribution of blame is a matter for the role of employers and, ultimately again, the criminal justice system.

The retrospective provision which the noble Lord raised—that is, the issue of post-Waterhouse—will not mean that the commissioner will be able to re-open matters already dealt with by Sir Ronald Waterhouse's tribunal because, by virtue of Amendment No. 93 in Clause 76, he will not be authorised to look into matters which have been determined already by a court or tribunal.

I believe that I have answered points raised by noble Lords. Should any matters be outstanding, I shall of course write to them. I commend Amendment No. 88 to the House.

On Question, Motion agreed to.