HL Deb 03 April 2001 vol 624 cc741-89

4.2 p.m.

The Attorney-General (Lord Williams of Mostyn)

My Lords, 1 beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gardner of Parkes) in the Chair.]

Clause 1 [Application of Part 5 of the Care Standards Act 2000]:

Lord Roberts of Conwy moved Amendment No. 1:

Page 1. line 9, leave out "ordinarily".

The noble Lord said: I begin this Committee stage by expressing the hope that the Government will still concede the amendment that they would have conceded had a general election been called yesterday for 3rd May. However, that may be a pious hope.

In moving Amendment No. 1, I shall speak also to Amendment No. 2. These are probing amendments to find out what the Government mean by the phrase "ordinarily resident in Wales"—that is, who is covered and who is not.

Three, if not more, groups of children cause us some concern. The first are children born and bred in Wales but living in England. They may be fostered or in an institution, a home, a school or a hospital. We are not sure whether they fall within the purview of the commissioner. Their families may still be in Wales but the children may be in England. Of course, they could have been referred to their locations outside Wales by one of the regulated services in Wales.

Secondly, there are English children in Wales. I well remember an occasion when, as a Welsh Office Minister, I visited a special home in Powys only to find that the majority of the children there were from Birmingham. As I understand it, it is a fairly regular occurrence to find children placed by English authorities in Welsh homes or with Welsh foster parents.

Thirdly, of course, children of travellers, gypsies and so on, may be in, but not of, Wales, yet they could be described as being resident in Wales although not ordinarily so. We should have a definition of "ordinarily resident in Wales" which makes clear who is included and who is not. I beg to move.

Lord Williams of Mostyn

I am very grateful for the way in which the noble Lord has put the matter. If I may, I shall cast my response a little more widely than his question. I understand the concerns that he expressed, particularly, for example, in relation to the children of travellers or, indeed, of asylum seekers. The important point is that such children may not be ordinarily resident in the usual way in which the courts interpret that term. However—I hope that this assists the noble Lord—if those children receive services from any of the numerous bodies listed in Schedule 2B, they will, in any event, come within the commissioner's jurisdiction. As a matter of practice, we can think of very few children who would receive no services at all.

I said that I would reply more widely, and perhaps this is a convenient moment for me to do so. As we promised to do, we considered with some care the points which were put forward very constructively at the earlier stage of this Bill. My noble friend Lady Farrington has been in correspondence with a number of noble Lords.

One central—if not the most important—concern was why the commissioner should have no formal role in policies and services that do not come within the responsibility of the National Assembly for Wales. I hope that it is helpful to the Committee to conclude that we have listened with some care. I am able to confirm that we intend to bring forward on Report an amendment that would empower the commissioner to consider, and make representations to the Assembly about, any matter which affects the rights or welfare of children in Wales.

I hope that the Committee will consider that to be a significant amendment and a significant step forward. We promised to consider the matter very carefully and, accordingly, we are able to give that assurance. Therefore, the commissioner will have a formal role in matters which do not fall within the devolved fields of responsibility of the National Assembly.

As I said, the intention is for the commissioner to be able, by virtue of the amendment—if your Lordships accept it—to make representations to the Assembly. He can do so yearly as part of his required annual report. If he believes that it is more appropriate, he can do so on an ad hoc basis. The Assembly would then be able to consider the commissioner's representations and make representations itself to, for example, central government by virtue of its powers under Section 33 of the Government of Wales Act.

We shall also bring forward amendments to ensure that the commissioner is able to exercise discretion in circumstances involving a child who has died. We have looked again at the provisions in Clause 1 about which, I believe, a question was raised. There may be some doubt about it and we intend to remove that doubt.

We shall also bring forward amendments to ensure that the commissioner's power to review the exercise of functions by the Assembly or by any of the Schedule 2A bodies will extend to other persons or bodies who may exercise functions on behalf of the Assembly or the bodies listed in the schedule. We intend to add community councils in Wales to the list of bodies whose exercise of functions in relation to their effect on children is subject to review by the commissioner.

I have taken a little while in giving my response because the noble Lord, Lord Roberts of Conwy, was kind enough to say that he wanted to know what our proposals were. He understands that there will not now be an election in early May. Therefore, we shall have the opportunity, which I intend to take, to table those amendments. Members of the Committee will want to know when that will be done. My noble friend Lady Farrington has said on several occasions that we are more than happy to have meetings—with or without officials, as is thought appropriate—and we should be perfectly happy to have the draft amendments ready so that noble Lords can see them in plenty of time before the next stage.

I have spent some time responding to the noble Lord but I hope that that will shorten our consideration of other amendments.

Lord Thomas of Gresford

From these Benches I very much welcome the words of the noble and learned Lord the Attorney-General. His comments suggest that on this matter at least the Government are listening, although he did not cover all of the matters about which I am concerned. There are no doubt other matters that we shall raise during this Committee stage but a substantial part of our concerns has been catered for. I am most grateful to the Government.

Lord Roberts of Conwy

I am most grateful to the noble and learned Lord for his announcement about changes that the Government may introduce on Report. He will be aware that we have tabled an amendment, which we shall reach shortly, on representations. We shall of course adapt our remarks in light of his announcement. Nevertheless, we hope that our contributions will help to influence his thinking and will affect the amendments that are tabled on Report.

I am also grateful to the noble and learned Lord for his explanation of what "ordinarily resident in Wales" means in practice and for his reassurance that all who are connected with the regulated services will be covered by the commissioner. In thanking the noble and learned Lord, it gives me pleasure to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Prys-Davies

After our short discussion on amendments to this historic clause, this is an appropriate moment to return to the question that I asked on Second Reading. I asked whether the Assembly was, fully satisfied with the terms and the effect of the Bill that is now before us?".— [Official Report, 19/2/01: col. 551.] I believe that that is a valid question that needs to be answered, but I notice that it has not been. The explanatory note that the Welsh Office prepared does not address that issue. I believe that an answer would assist both Houses of Parliament. I submit that our response to the Bill depends to a great degree on the answer to that question.

If the Bill as currently drafted is broadly acceptable to the Assembly, which is an elected body, and if we seek stability in relation to the devolution settlement, the House should facilitate the Bill's passage. If, on the other hand, the Bill is not broadly acceptable to the Assembly, the House should amend the Bill so that it approximates more closely to the Assembly's aspirations. Parliamentary procedure in your Lordships' House, which is not an elected House, must keep up with the historic decision to devolve power to the Welsh Assembly. I suggest that the Select Committee of your Lordships' House dealing with constitutional matters would make a valuable contribution if it clarified what the approach of both Houses of Parliament should be to a Bill initiated by the Welsh Assembly. I should be grateful if my noble and learned friend the Attorney-General would comment on that.

4.15 p.m.

Lord Williams of Mostyn

I am grateful to my noble friend for asking that question. I believe that his question is: is the Welsh Assembly broadly satisfied with the terms and content of the Bill? I can fairly answer that question in the affirmative. I do not pretend that there is a perfect match between what the Assembly wanted and what is in the Bill but I hope that I can reassure Members of the Committee and my noble friend in particular by reciting briefly what happened.

The Health and Social Services Committee of the Assembly published its report at the end of May 2000 with its recommendations on the remit, role and functions of the Children's Commissioner for Wales. The Assembly then unanimously endorsed that report in plenary session on 7th June. That was the basis of the bid by the Assembly Cabinet to secure wider statutory powers for the commissioner. The bulk of the recommendations are reflected in the Bill, although I do not pretend that there is a perfect match.

A much wider constitutional question, which was identified by my noble friend, is involved; namely, how will further legislation that is Assembly-related or Assembly-invited be dealt with by your Lordships' House? I do not dissent from the proposition that that will be a developing area of consideration. For the moment, we must come to our own conclusion. I think that I can fairly say that the Assembly is broadly content.

Lord Thomas of Gresford

The noble and learned Lord the Attorney-General will appreciate that such constitutional matters arise in relation to Amendment No. 20, which I propose to move. I shall voice many of the concerns that were raised by the noble Lord, Lord Prys-Davies.

Clause 1 agreed to.

Lord Roberts of Conwy moved Amendment No. 3:

After Clause 1, insert the following new clause—

"CHILDREN'S AND YOUTH COMMISSIONER FOR WALES

In section 72 of the Care Standards Act 2000 (c. 14) (Children's Commissioner for Wales) for the words "Children's Commissioner for Wales" there shall be substituted "Children's and Youth Commissioner for Wales"."

The noble Lord said: Amendment No. 3 and the amendments grouped with it—Amendments Nos. 21 and 27—are probing amendments. The commissioner is, as we know, involved with further and higher education and is responsible for young people up to and occasionally over the age of 18 who are still in the education system. It therefore seems sensible to extend his title to cover those young people.

I suspect that I shall be told that the Children Act 1989 also covers young people of 18 and over and that the proposed change of title is inappropriate at this time, despite the disadvantages of describing young people as children when they do not regard themselves as such and might be offended by the description. The change will have to come sooner or later. I look forward to the Government's response. I beg to move.

Lord Williams of Mostyn

Perhaps I can give a reply in two stages. First, the Children's Commissioner is already in post. If we change the nomenclature now, that would simply bring about fruitless confusion, especially during this important stage in the commissioner's work. The present position is well accepted now by the media in Wales, by those who are interested generally and by the public at large. The noble Lord was right—I refer to the Children Act 1989. Mr Peter Clarke's remit will be 0 to 18, and Children's Commissioner—though I realise this is not a perfectly persuasive point among some of your Lordships—is the title used in similar offices in Europe.

Secondly, we want to cover those who are children; that is, they are not adult, not having reached the age of 18 years. The very wide consultation carried out by the Assembly was with children and young persons under the age of 18. We think the title is right, and it is well recognised now. I think it is receiving public acceptance and recognition in Wales.

Lord Roberts of Conwy

I do not think there is any question but that the title is accepted in Wales. The point I was making was that the commissioner will be dealing with young people up to the age of 18, and, I think, over 18 if they are still in education. I am content with the explanation of the Minister. Clearly, the Government are not going to change the commissioner's title at this stage because it is already in the Act passed last year. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Principal aim of the Commissioner]:

Lord Roberts of Conwy moved Amendment No. 4:

Page 2, line 14, at end insert— "(2) The Commissioner may make appropriate representations to the Secretary of State or any statutory body about any matter affecting the rights or welfare of children in Wales.""

The noble Lord said: We come to the important matter of representations by the commissioner to which the Minister has already referred. The noble and learned Lord has announced that he will bring forward a suitable amendment to enable the commissioner to make representations at Report stage.

There has been constant demand for the commissioner to have the right to make direct representations to bodies outside his jurisdiction if he has good cause. I shall not trace the history of the demand—from the Health and Social Services Committee report of the Welsh Assembly through Standing Committee in another place to our own Second Reading debate. I notice that today the campaign group highlights this as one of three changes it would like to see in the Bill. The group says it would like the commissioner to have the power to consider and make appropriate representations about any matter underlined affecting the rights or welfare of children ordinarily resident in Wales. I am sure that we are all aware of the campaign group that comprises the NSPCC Cymru, Save the Children, Barnardo's Cymru and the Children's Society in Wales. They were a very important group of organisations pressing for the establishment of a commissioner.

The demand is summed up in the expression of the desire that the commissioner should have a power similar to the power of the Assembly in Section 33 of the Government of Wales Act which, I remind your Lordships, states: The Assembly may consider, and make appropriate representations about, any matter affecting Wales".

Our amendment seeks to meet that aspiration. The Government have certainly acknowledged that the commissioner has a right to make representations on matters outside his jurisdiction to government departments and other bodies—but informally or through the Assembly. The noble Baroness, Lady Farrington, whom I am pleased to see in her place, said: That would not give him substantive functions in non-devolved areas".—[Official Report, 19/2/01: col. 570.]

The noble and learned Lord appeared slightly more relaxed about the issue but equally firm at the end of the day in saying: Even if some issues are outside the statutory remit, he does not have to stay silent. If during the course of his work he receives representations about non-devolved matters, he can bring them to the attention of relevant government departments and in so doing can indicate his views. He can also bring to the Assembly's attention complaints and information he receives about non-devolved matters. He can do that, of course, through the annual report to the Assembly".—[Official Report, 19/2/01; col. 542.]

That seems far away when we are dealing with what may arise, namely, urgent cases brought to the attention of the commissioner that require a response. We find that the Government appear to concede the argument and to acknowledge that such cases may arise but they are not prepared to formalise the commissioner's duty at this stage. We have received very good news that they are considering it and may bring an amendment forward at Report stage. That is necessary because most of us believe that the position should be formalised, that it should be a function of the commissioner to make representations where he feels it is necessary to the Secretary of State—which can be any Secretary of State—or any mandatory body, otherwise his approaches to them will, in our view, be too informal to merit proper attention on their part.

I cannot see why the Government cannot give the commissioner's status this extra boost in his dealings with bodies outside his jurisdiction. Certainly, it would remove the most glaring deficiency in the commissioner's relationships with bodies responsible for children in Wales but outside his remit. I am glad to welcome the decision of the Government to accept the case in essence and to bring forward a considered amendment on Report stage. I beg to move.

Lord Thomas of Gresford

My name is attached to this amendment. It would be premature for me to make any comment having regard to the announcement by the Minister at the beginning of our deliberations. I noted, in particular, that he referred to ad hoc reporting on specific issues to the Assembly. That seems to me to meet many of the points that the noble Lord, Lord Roberts, made. The process of seeing the proposed amendment and discussing it with the Minister, as he invited us to do, is the way forward.

Lord Williams of Mostyn

That is very generous, and not for the first time, from the noble Lord, Lord Thomas of Gresford. The proposed amendment is to empower the commissioner to consider and to make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. So it is pretty broad.

I accept the point made by the noble Lord, Lord Roberts, that one may have something quite urgent that needs an ad hoc series of representations to the Assembly.

I deal with the Assembly's position. It seems to many of us in this House that the success of the Assembly is critical to the success of the devolution settlement in Wales. There were faint hearts when we started on this journey together. The Assembly needs to grow in experience, authority and confidence. I do not say that in a patronising way. This is a very new body indeed. I think it is surprising how well it has done rather than how badly it has performed and it has not fulfilled the rather gloomy prognostications. The Assembly's position is critical in the constitutional settlement and that is why it is very important, in our judgment, that the commissioner makes representations to the Assembly which, as the duly elected body, comes to its own conclusions about what representations and to whom and in what terms the Assembly wishes to exercise its powers under Section 33 of the Government of Wales Act.

4.30 p.m.

The Lord Bishop of Oxford

I know that church leaders in Wales of all denominations are strongly supportive both of the establishment of the Children's Commissioner in the first place and this specific amendment, which will enable the commissioner to make representations. I know that they will be glad to hear what the Minister said at the beginning of the debate, especially the Archbishop in Wales who has been concerned to communicate Welsh church anxieties to me on this issue.

Lord Prys-Davies

In the other place it seemed to me that Ministers clung to the view that the remit of the commissioner should not be extended to the non-devolved UK departments because of the terms of the settlement. I am pleased that there has been a significant shift of emphasis on the part of the Government. However, we shall have to wait to see the precise amendment. Meanwhile, for my part, I welcome the Government's decision to table an amendment, which I hope will be along the lines of Amendment No. 4.

Lord Roberts of Conwy

I believe I understood the noble and learned Lord clearly this time. I dare say we shall have further illumination on Report. As I understand the position at the moment, the Government are prepared to allow the commissioner to make his representations to the Assembly about any matter that concerns him, whether that matter arises from the regulated services or anything that he may hear that comes from the non-devolved areas. Therefore he can in fact approach other departments of government or statutory bodies through the Assembly, or the Assembly will be able to do it for him.

Lord Williams of Mostyn

The Assembly will receive the representations from the commissioner. But I stress that the commissioner is not an elected person or body; the Assembly is. It is the Assembly therefore that ought to have the decision as to what representations to make, in what circumstances, to which department or other interested body and in what terms.

Lord Roberts of Conwy

I accept what the noble and learned Lord says. However, I was asserting that the Assembly could deal with the representation, even if it related to a non-devolved area or another government department and so forth. But as we understand it now, it would be for the Assembly to decide how to deal with the commissioner's representation. We shall content ourselves with that position as we have established it and consider the matter further.

Of course, Amendment No. 5 asks for rather more than the Government are prepared to concede. We want the commissioner to be able to make representations to a Secretary of State, which means the head of any government department, or a statutory body, which means a local authority or any other of the bodies listed in the various schedules to this Bill. I do not believe that we shall progress much further at this stage. I shall therefore consider the matter further between now and Report. Perhaps the noble and learned Lord will consider yet again the role of the commissioner as it is required, not simply by the Assembly, because they have also considered it, but also by the campaign group. Everybody in Wales who is connected with this area is anxious that the commissioner should be able to act promptly and directly if the need arises.

With those few words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 5: Page 2, line 14, at end insert— (2) For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government."

The noble Lord said: As is well known, Amendment No. 5 is a "purpose clause". It amounts to an enunciation of a principle rather than a strictly legal obligation. I thank the noble Lords, Lord Hooson, Lord Elis-Thomas and Lord Renton, for their support. I was particularly pleased that the noble Lord, Lord Renton—who has a greater knowledge of purpose clauses than anyone else in the Chamber—supported us. He would not have put the authority of his name to this amendment if it was inappropriate in its form or intention.

Amendment No. 5 raises a point of principle which is of fundamental importance to the children's charities in Wales. It seeks to enshrine on the face of the Bill the principle that the Children's Commissioner should exercise his functions in the spirit of the United Nations Convention on the Rights of the Child.

I have read and re-read the report of the Health and Social Services Committee of the Welsh Assembly. It is clear to me that the intention of the report is that the commissioner should exercise his functions in the spirit of the UN Convention on the Rights of the Child. That comes out clearly in paragraphs 19, 21 and 28 of the report, and also in paragraphs 1 and 2 of the summary. Paragraph 28 comes under the heading, Role, Remit and Functions, and reads, We believe that the Commissioner: should exercise his/her functions with the overarching aim of promoting and upholding the United Nations Convention on the Rights of' the Child". However, nowhere in the Bill or in the Explanatory Notes prepared by the Welsh Office is there a single reference to the convention. That may be acceptable to the Assembly, I know not. But it was a cause of disappointment and concern to the Children in Wales campaign group.

Of course, the charities welcome Clause 3 of the Bill as it stands. But they are concerned by the omission of any reference to the convention, bearing in mind that this was a central recommendation by the Welsh Assembly. The charities are therefore looking to Parliament for a legislative framework which will encourage the Children's Commissioner at all times to work in the spirit of the UN convention. It is a modest request. I beg to move.

Lord Roberts of Conwy

I understand that Amendment No. 8, which is in my name, is grouped with Amendment No. 5 and it may he for the convenience of the Committee if I speak to it now. I make no apology for the fact that this is an abbreviated version of an amendment introduced by Mr Win Griffiths—the Labour MP for Bridgend and a former Welsh Office Minister—during Committee stage in another place.

I shall deal first with the second part, paragraph (b), of Amendment No. 8. As I indicated during Second Reading, one of the inspirational mainsprings of the present Bill is the United Nations Convention on the Rights of the Child 1989, which was ratified, with reservations, two years later by John Major's Government. The Health and Social Services Committee of the National Assembly for Wales and, as the noble Lord, Lord Prys-Davies, mentioned., the campaigners for a child commissioner drew heavily on the convention and its effect on other countries in formulating their proposals.

There is no doubt that what the National Assembly wanted for Wales was a child commissioner whose office would meet the highest international standards. I believe that the Assembly is well aware that that is not what the Government have provided them with in this Bill.

Mr Peter Newell, the chair of the Children's Rights Alliance for England, adviser to the European Network of Ombudspeople for Children and author of Taking Children Seriously—a proposal for a children's rights commissioner has summed up his views as follows: This legislation does not match up to the vision of the National Assembly. It falls short of international standards and creates a commissioner who will not be on a par with existing children's ombudspeople and commissioners across Europe". He goes on to describe the situation in Europe, stating: In Europe there are now at least 20 children's ombudspeople or children's rights commissioners. Some are federal; some, like the Wales Commissioner, are appointed by regional governments. But none is limited in its powers: all are empowered to monitor and report on anything which affects the human rights of children. Many are directly linked in their legislation to the Convention on the Rights of the Child and have specific duties to maintain contact with children and promote respect for children's views. The Children's Commissioner for Wales will not be on a par with these institutions or have comparably wide powers unless the Bill is amended". Mr Newell describes the situation under the Northern Ireland Human Rights Commission which was established as part of the Good Friday agreement and includes children within its general remit. Its first major investigation has been into the juvenile justice system in Northern Ireland, which, I understand, is a non-devolved matter. Mr Newell asks: Why should the Children's Commissioner for Wales not have powers to investigate and report on the juvenile justice system in Wales? We all know the answer to that question. He is not allowed to deal with the non-devolved areas.

A fair point is that no one suggests that the commissioner should have decision-making powers. His basic powers are to monitor, to review and to report publicly. There is no justification for limiting those powers to devolved matters. Allowing the commissioner to monitor, to review and to report on all matters that may affect the human rights of children in Wales does not conflict with the devolution settlement.

The first part of the amendment requires the commissioner to, maintain direct contact with children and children's organisations". All who have been involved with the Bill are aware of the active role played by the children's organisations that I named in relation to a previous amendment, and which have campaigned for this office. We have all acknowledged our indebtedness to them. Those organisations know a great deal about the children with whom they come into contact. Time and time again they stress the prime importance of direct contact with them at the highest level. A later amendment deals with the commissioner's right of access to children. For the moment, I am content to say that the case for the commissioner to have regard to the need for contact is so strong as to merit its inclusion on the face of the Bill.

4.45 p.m.

Lord Hooson

The genesis of Amendment No. 5 was, as I recollect, a round-table discussion in the Bishop's Bar between the four signatories to the amendment. All four of us discovered that we were great believers in having a purpose clause. We were also great believers in making legislation as simple as possible but that certain guiding principles should illuminate any interpretation of the Bill when it becomes a statute.

The heading to Clause 2 is, Principal aim of the Commissioner". The clause creates what will be Section 72A of the Care Standards Act 2000 and states: The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies". That is a subjective test for the commissioner. According to his views, he must follow that principal aim. However, the amendment adds to that and provides objective tests. The amendment reads: For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government". He must always have that in the back of his mind when carrying out his functions. Whatever his subjective aim may be, an objective background should be borne in mind when making decisions or when the Assembly considers his report or whatever. Therefore, the four signatories to this amendment believe that is of vital importance.

The noble and learned Lord the Attorney General has been extremely co-operative and has provided great guidance on the Bill. We are all anxious to achieve an Act of Parliament that will be of great help to children in Wales and perhaps be a guiding light for other legislation. However, I believe that this particular clause, shorn of all regard to have to consult with various people, contains a set of guiding principles that are now universally accepted with certain modifications, and that is so important.

Previously there was pressure on the noble and learned Lord the Attorney-General, perhaps due to a lack of time, that meant that we did not consider in depth the need for a purpose clause of this kind. Now that that pressure has been removed I am sure that he will agree that there is great value in a purpose clause of this kind. The House should be grateful to the noble Lord, Lord Prys-Davies, for drafting the amendment.

Lord Williams of Mostyn

As the noble Lord, Lord Roberts of Conwy, correctly pointed out, Amendments Nos. 5 and 8 go together although they are not exactly the same. The first amendment, which was the product of late-night deliberations and which was signed by four noble Lords—none of whom has resiled—in effect directs the commissioner to have regard to the principles laid down in the United Nations convention. The noble Lord, Lord Roberts, is right in saying that the second amendment is different. In that case, the commissioner's functions are to have regard to the need to promote compliance, which is slightly different, and to, maintain direct contact with children and children's organisations", although he put them the other way round.

The United Nations convention, of course, is not part of domestic law. I sympathise with what has been said and I think I can assist, not by accepting the amendment because it is not necessary, but simply by pointing out what has happened so far. The advertisement for the commissioner, who has already been in post for a little while, was not drafted by me. I am sorry to use these inelegant words. It reads: The job purpose: the Commissioner will promote the rights and welfare of children and young persons, and people who are in receipt of services regulated under the Care Standards Act". Essentially one is referring there, as the noble Lord, Lord Hooson, said, to Clause 72A as it will become, but it is important to go further. I will, if I may, read the basis on which the commissioner is appointed: It is envisaged that the principles in the United Nations Convention on the Rights of the Child will he one of the matters to which the commissioner will have regard in the exercise of his functions". So it is there. That is the job purpose. As regards person specification—again I did not write this—the essential requirements include the ability, first, to apply the UN Convention on the Rights of the Child; secondly, the Human Rights Act 1998, secondly, and the principles of equal opportunities across the range of activities encompassed in his office. Therefore he is in post on those bases.

The other aspect of Amendment No. 8 is also dealt with in that same document which was the basis of the appointment; namely: To advise appropriate statutory and non-statutory organisations that complement the functions of the Children's Commissioner, including local authorities and health services, Childline, Samaritans, Citizen's Advice Bureaux and local advocacy schemes". That was specifically included in the advertisement which led to the appointment of Mr. Clarke. To bring the matter even more up to date, my understanding is that the Assembly has already gone out to consultation on proposals for regulations, including the first part of the amendment of the noble Lord, Lord Roberts, relating to the commissioner's contact and consultation with children and young people.

I do not think there is really anything between us, but I simply say that the UN convention is not part of domestic legislation. It would be decidedly odd to find it in this Bill and in no other.

Lord Hooson

Is the noble and learned Lord really saying that the second part of an advertisement for a commissioner's job will satisfy those who think that the purpose clause in this Bill should have the effect of drawing the attention of the commissioner, whoever he may be, in the future, perhaps when the advertisement may have been changed?

Lord Williams of Mostyn

I do not think it will satisfy those people who are wedded to purpose clauses. I am not myself wedded to them, but I sympathise with the stance that has been adopted. The commissioner is working on the basis that these are indeed his obligations. I find it inconceivable that any subsequent commissioner—because this is a seven-year non-renewable term—could possibly be appointed on less onerous terms. I agree with the noble Lord, Lord Hooson. I do not suppose it will satisfy those who like to have purpose clauses. My only point was to try to be helpful by showing that this is how the man is working at the moment. It is part of the basis on which he was appointed.

Lord Renton

I must apologise to your Lordships for not having been here when the noble Lord, Lord Prys-Davies, moved Amendment No. 5, to which my name is attached. Not having been here for the whole of the discussion on Amendments Nos. 5 and 8, I may have missed a point. However, I should like to point out that Clause 2 as it stands states that the principal aim of the commissioner should be to promote the rights and welfare of children.

That therefore will become part of the law. But I suggest that any indirect obligations placed upon the commissioner, but not included in this Bill, would not have the same effect as a statement in Clause 2, which would become part of the law and therefore a direct obligation, such as is proposed in these two Amendments Nos. 5 and 8.

I am not asking the noble and learned Lord for an immediate reply on this, but I assume that he would wish to consider this important matter further between now and Report stage. I would ask him to consider the need—not merely the desirability—to have in the Bill a clear statement setting out the rights of the child.

Lord Northbourne

Perhaps I may intervene at this particular moment to speak against the amendment. It seems to me that the wording, as set out in Clause 2, is wider than it would be if it were restricted by the amendment. I suppose it is unthinkable that the United Nations Convention on the Rights of the Child should by any chance be wrong. If we say that we have got to obey it, then we have to obey the detail of it. Surely it is important for the commissioner to have a general obligation to promote the rights and welfare of the child. He will follow the Charter, provided he is satisfied that it is in the best interests of the child.

Lord Williams of Mostyn

The noble Lord, not for the first time, has put it more elegantly than I managed to do. I sought to say that he has his contractual obligations on the basis of what I have read out There is no benefit to be had from the amendments that have been put forward, because we all recognise that these are his obligations. The description of the principal aim in Section 72A, as I hope it will become, is absolutely appropriate for our present purposes.

Lord Roberts of Conwy

We are grateful to the noble and learned Lord for his comments on both the purpose clause put forward by the noble Lord, Lord Prys-Davies, and his co-signatories and on the amendment that I have put forward. I am certainly impressed by the fact that the United Nations Convention on the Rights of the Child, although ratified by Her Majesty's Government, is not in fact part of our domestic law. I should have thought, with due respect to your Lordships, bearing in mind that I am not myself a lawyer, that if we were to accept the UN convention into domestic law, we would wish to discuss it in considerable detail.

Having read the convention, I know that it is a very substantial document. If I were to be pushed on my amendment and asked to choose between the particular form of words used in Amendment No. 8—namely, that the commissioner should have regard to the need to promote compliance with the UN convention—or the version chosen by the noble Lord, Lord Prys-Davies, to have regard to the principles, I think that the objective of having regard to the principles would lie more easily with the fact that this convention is not part of our domestic law, and would furthermore involve the commissioner in rather less onerous, indeed burdensome, duties than promoting compliance with the convention would involve.

I am also reassured by the fact that there was reference to the convention in the advertisement for the post of commissioner. Clearly, there are echoes of both amendments in that advertisement, despite the fact that its wording is not as facile as the noble and learned Lord the Attorney General would wish. Nevertheless, the point is that the convention is covered in that job advertisement. That pleases me and I cannot see how the Government can accept either amendment without the convention being part of domestic law. Surely, its adoption into domestic law should come first.

I am also pleased to hear that the Assembly is consulting on subsection (a) of my Amendment No. 8, which requires the commissioner to, have regard to the need to … maintain direct contact with children and children's organisations". I am sure your Lordships would agree that the campaign group and its members are familiar with the problems of children. It has contributed significantly to the demand for the Bill and the office of the commissioner. It has stressed the need for direct contact with children at all levels and we shall return to that point when we discuss later amendments.

5 p.m.

Lord Thomas of Gresford

I am moved to say that the reference to the convention not being part of English law seems irrelevant. All the amendments seek to do is to lay upon the commissioner the duty to have regard to the principles in the amendment of the noble Lord, Lord Prys-Davies, or to promote compliance with the United Nations Convention on the Rights of the Child.

If the wording was that the commissioner shall "promote the principles of the Ten Commandments" or have regard to their compliance, that would be perfectly all right. There is no reason why one should not state in such a way some form of aspiration or objective rule, as my noble friend Lord Hooson said.

An objective standard is being called for in these amendments and I support them.

Lord Prys-Davies

I am grateful to Members of the Committee who have spoken in favour of the amendment and I shall comment on the arguments advanced against it by my noble and learned friend the Attorney General.

First, he suggested that as the UN convention has not been incorporated in UK law, the amendment would be inappropriate. With all due deference to my noble and learned friend, I am not sure that that is correct. I recall that the Welsh Assembly was placed under a duty to comply with the European Convention on Human Rights before the convention was in force as part of UK domestic law. Therefore, I should like to reflect on that point.

Secondly, my noble and learned friend suggested that as the United Nations is mentioned in the advertisement for the post of commissioner, we should be content. That merely reflects the thinking of the Assembly at this point in time. That may not necessarily be the thinking of the Assembly in the future. The amendment recognises the fact that the principle should be an enduring one and therefore should be incorporated in the legislation and not merely left to an advertisement or administrative arrangement which can be altered to meet changing conditions and circumstances. Therefore, I do not find my noble and learned friend's reply to my amendment convincing.

Thirdly, there is a distinction between this amendment and that moved by the noble Lord, Lord Roberts of Conwy. Amendment No. 5 is clearly intended to be no more than a purpose clause setting out an objective and principle and not seeking to enact a binding commitment.

For the time being, I beg leave to withdraw the amendment but I may return to it at a later stage.

Amendment, by leave, withdrawn.

Baroness Young moved Amendment No. 6:

Page 2, line 14. at end insert— "(2) In exercising his functions, the Commissioner shall have particular regard to the rights and responsibilities of any parents or guardians of children to whom this Part applies.""

The noble Baroness said: I regret that I was unable to be present at the Second Reading of the Bill. Unfortunately, a long-standing commitment meant that I could not be here. I support the principles of the Bill. On reading the Second Reading debate, I recognised that not only does it have the support of the Welsh Assembly but that it was given a warm welcome by all noble Lords who spoke in that debate.

I am pleased that the Government have accepted the important recommendation contained in the important report of Sir Ronald Waterhouse, in particular in respect of the events in North Wales.

My amendment is not in any way difficult to understand but it is an important point to make. I would like to believe that the importance of parents is common ground among Members of the Committee. No piece of evidence on any subject connected with social or domestic affairs does not stress the importance of parents and their role.

I am conscious that the issues which Sir Ronald Waterhouse largely addressed related to children who were removed from their parents and were in care. Nevertheless, the fact that there is no reference in the Bill to parents should be put right. In talking about parents, I am talking about "good enough" parents. Often when one talks about parents people believe that one must be talking about the most saintly individuals who never make a mistake. I expect that all of us here today are parents. All of us know that we have done things which on reflection and with hindsight we believe we could have done better. However, I am speaking of the "good enough" parents who should not be excluded.

The point about parents was raised at Second Reading by my noble friend Lord Roberts of Conwy and by the noble Lord, Lord Davies of Coity. It was also raised in another place by my honourable friend Gerald Howarth. All stressed the point about parents, and my noble friend Lord Roberts drew attention in particular to children in the Orkney Islands and in Cleveland who were removed from their parents.

I have carefully re-read what was said by the noble Baroness, Lady Farrington, in winding up the debate at Second Reading and what was said in another place. I regret that in neither House of Parliament did any Government Minister refer to parents.

I also looked to see what was said in the Welsh Assembly. I understand that on 7th June 2000, when the recommendations of the Health and Social Services Committee were accepted by the Assembly, Jane Hutt, Secretary for Health and Social Services, said: Children's rights of participation should be key to the commissioner's role. The commissioner's agenda should be determined by children and young people themselves, rather than the providers of services. That is why we envisage a role for children and young people from the outset with the appointment procedure. That role should continue in terms of letting the commissioner know of children and young people's priorities and concerns".

She went on to say: Finally, the commissioner should have an impact on the full range of provision affecting all children in Wales, through raising the profile, and taking an overview, of the impact of policies, procedures and services on children. The commissioner will be able to produce reports and recommendations in the exercise of her or his functions, including an annual report to the Assembly on the position of children in Wales. She or he will be a constant reminder, including to the Assembly, of the need to give children's services the priority that they deserve".

Once again, there is no mention of parents.

We live in a world in which the old philosophies that govern parents are being questioned. In the past—perhaps before the Convention on the Rights of the Child—the main justification for protecting children was that they were different from adults because they were immature and vulnerable. It was, therefore, accepted that they required parental protection, education and supervision to ensure that they developed in such a way that when they grew up and became adults they would be able to exercise their autonomy responsibly. Today, there is a switch away from the role of parents to a theory based on the assumption that children should, as much as possible, be free to exercise choice and self-determination in all important areas of their lives. That is the other side of the coin.

I shall not open up a great debate as to which side is right. However, it is unfortunate to leave out parents in all this if the commissioner's remit under this legislation, which I support and regard as important, is to extend to all children. We are all too well aware of some cases in which social workers remove children from their parents which subsequently proves to be a mistake, and other cases in which they should be rather more assiduous and remove the children but fail to do so. I believe that in this very difficult area where we are dealing with many different cases in which the child has parents—sometimes not—it is a mistake for the Bill to make no mention of their role.

As the Committee is aware, I believe profoundly in the importance of marriage, the family and the support of parents. One of the great dangers in society today is the breakdown of marriage and the break-up of families. Where one has such important legislation one should constantly underpin and strengthen families rather than weaken them. I would have thought that that was a matter on which we could all agree. That is the principle which lies behind the amendment. I have very much at heart the best interests of all children. I cannot believe that their best interests will be served by omitting from the Bill any reference to parents. I beg to move.

Lord Morris of Castle Morris

It is not often in the course of the past 10 years that I have been able to support the noble Baroness, Lady Young, in amendments that she has tabled and Bills she has introduced. On this occasion I rejoice with exceeding great joy that I am able and eager to do so. I support her lock, stock and barrel; hook, line and sinker; horse, foot and guns. It is obvious that the form of words of the amendment gives rise to tricky moments. It would be rather difficult to define in law, the rights and responsibilities of any parents", but we all know what we mean. In many cases the parents might be unknown or untraceable. I was relieved to find in the amendment the word "any". That allows one to bypass almost all causes of contention, even in the wording of the amendment itself. I hope that my noble and learned friend is able to welcome the amendment and give it a fair wind.

5.15 p.m.

Baroness Walmsley

I, too, rise to support Amendment No. 6 tabled by the noble Baroness, Lady Young. No one in this House has a greater reputation as a lighter for the rights of parents and the importance of the position of the family in society than the noble Baroness. Although we may have disagreed about other matters, I, too, rejoice and agree with her on this matter. It is widely accepted by those who are concerned with child protection that, wherever possible, the best setting in which a child can grow up is the family where it is looked after by the parents. Parents have a unique role. However, there are circumstances in which parents cannot carry out their usual responsibilities. When that happens parents should not also forfeit their right to have their views considered. For that reason I believe it is desirable that reference should be made on the face of the Bill to the need for the commissioner to have particular regard to parents' rights and responsibilities.

Although families vary in type and parents do not own their children they should not be left out of the picture when the fate of their children is at stake, and I should like to be reassured that they never will be by the children's commissioner for Wales.

Lady Saltoun of Abernethy

I, too, support this amendment. Casting my mind back to the Orkney abuse cases, to which the noble Baroness, Lady Young, referred, and the Ayrshire abuse cases which occurred at about the same time in Scotland, the trouble was that there was no commissioner for children and nobody to whom the parents could turn. In one case in Ayrshire the mother of children who had been removed on the flimsiest excuse by social workers contacted Members of Parliament, me and all kinds of people. There was very little that we could do about it. I believe that if at that time there had been a commissioner for children in Scotland things would not have gone as badly wrong as they did, or at least they would have been put right rather quicker. I very much hope that the noble and learned Lord will give this amendment favourable consideration.

Lord Renton

I support this amendment. I refer briefly to the use of the expression "the rights and responsibilities". We all have a broad idea of what that means, but when it comes to contesting it at law those who are challenged may very well try to place a narrow definition on those words. If at Report stage it is possible perhaps to include a cross-reference in other legislation as to what these rights and responsibilities are it will make the effect of the amendment much firmer.

The Earl of Listowel

I should also like to speak in support of the amendment moved by the noble Baroness, Lady Young. Before doing so, like many other Members of the Committee I welcome the news that the formal power of the commissioner is to be extended to all children in Wales. Most child abuse occurs in families. I believe that there is a danger of going from one extreme to another—from ignoring the voice of the child to believing that only the child can speak with any authority.

It is normally artificial to think of children's welfare in isolation from their families. It is a principle of Chinese medicine that if a child is ill it is usually best to treat the mother. If a family is living in overcrowded and damp accommodation or, perhaps more to the point, parents are worried about delays in receiving housing benefit, that does not affect the child but it worries the parents, which will impact adversely on the well-being of the child. There is at least one country in the world that has a commissioner for the family rather than for children. It is important to bear that in mind. Of course, the interests of the child and family are on occasion very divergent but, normally, supporting the family is important in supporting the child.

Lord Northbourne

I should like to support the amendment. As I know so well the noble and learned Lord the Attorney-General, I suspect that he will either accept the amendment or will have a jolly good reason for not doing so. Therefore, I would rather listen to what he has to say.

Lord Pearson of Rannoch

It may be superfluous, but I should like briefly to support the amendment. As I believe the noble and learned Lord knows, my experience in this field comes from defending the rights, if they can be called that, of mentally handicapped people in this country, where it appears that the pendulum has swung too far in favour of officialdom and the decisions of the Home Office and others and where sufficient attention has not been paid over recent years to the rights and interests of families and parents. In that respect, I take the opportunity to congratulate the Government on their White Paper, Valuing People, produced under the auspices of Mr Hutton in another place.

I have not had a great deal to do with the Bill. However, I can recognise when the pendulum has swung too far in favour of the decisions of officialdom when I come to read the Bill and the Explanatory Notes, which do not actually mention the word "parents". I feel sure that my noble friend Lady Young is on to something here and I very much hope that the Government can accept the spirit of her amendment.

Lord Swinfen

I should like to support the amendment. We should all remember that parents have the great responsibility of bringing up the next generation. It is upon the proper upbringing of the next generation that the welfare of the country as a whole stands. It is important that they should have as much support and guidance as possible. We all make mistakes. We all need help as parents and some need more help than others. I hope that in his functions the commissioner will do all he can to help parents to bring up their children properly.

Lord Roberts of Conwy

My noble friend Lady Young was quite right in saying that I drew attention to this area of possible concern during our Second Reading debate on 19th February when I said: Some may feel a little uncomfortable with the possible implications here. There is the threat of an overweening bureaucracy, thrusting confusedly in all kinds of directions and interfering unnecessarily in all kinds of areas, including normal family life and normal child-parent relationships". I went on to talk about the Orkney children scandal of 1991 and the Cleveland fiasco, as I called it. I concluded by quoting the hope expressed by Sir William Utting that, the rights of children and the rights and responsibilities of parents prove mutually supportive".—[Official Report. 19/2/01; col. 545.] That is very much our fervent hope. But there have been occasions when officials have ridden roughshod over parental rights and responsibilities.

It is clearly important that those rights and responsibilities should always be considered. Indeed, they should be in the forefront, especially when a child is taken from his or her parents' care and placed elsewhere. There is a tendency for society to regard those in authority in social services as near infallible and their provision for children as infinitely superior to the provision previously made for them at home. Social workers and their judgment are trusted implicitly. I have a good deal of sympathy with what was said by the noble Lady, Lady Saltoun. Sometimes parents do not know to whom to turn. We know to our cost that there have been failures which the Government and the Bill seek to prevent from recurring.

Therefore, in this context, I should have thought that my noble friend's amendment would certainly not be too onerous an addition. It simply requires the commissioner to have regard to the rights and responsibilities of parents or guardians. The Government may well say, "Of course he will have such regard'', to which we should say, "Why not place the amendment on the face of the Bill? It would remind the commissioner of its importance". What we want is an effective commissioner who does not supplant the role of parents. It must be someone in whom the parents have confidence.

Baroness Farrington of Ribbleton

Perhaps the noble Baroness, Lady Young, will forgive me if I start with a personal response. There can be no time at which I am more aware of the role and responsibility of parents than at this moment and on this day, as we wait for one of our sons and our daughter-in-law to have their first child. I can assure the noble Baroness that the only problem she may have later in our proceedings is if I suddenly leap up and shout in a very disrespectful way "yippee".

There is common ground between us about the importance of parents and the role that they play. We have no doubt about that. We intend to bring forward an amendment on Report that will enable the commissioner to make representations to the Assembly about aspects of family life that may affect children's rights or their welfare. I want to say a few words about that welfare aspect. The expectation is that, in exercising any of his functions, the commissioner would find it impossible to perform the function of looking to the welfare of children without taking a proper and balanced view of all aspects and all relevant issues.

As the Conservative Assembly member, David Melding, has clarified, a fully effective Children's Commissioner will offer great support to parents without undermining the responsibility of the family in any way. The Bill will enable that to happen. In the Assembly debate on 7th June last year it was accepted that it was not the intention that the commissioner should exercise functions in respect of families, such as investigation, although it might be appropriate for the commissioner to comment on aspects of family life that affect children.

Perhaps I may turn to the contributions made during the debate. The noble Lady, Lady Saltoun, and the noble Lords, Lord Renton and Lord Roberts of Conwy, referred to individual cases. It is very important indeed not to see the role of the Children's Commissioner in isolation from the other improvements being made to the system; namely, it becomes a part of the whole. It is therefore vital that the role of the Children's Commissioner is not seen as a role in which parents will present individual cases, in particular during a process of review that will take its proper course through the legal system, in order to seek the commissioner to intervene on an individual basis.

Having said that, it is quite clearly the case, from what has been said previously, that we intend that the commissioner should be able to comment on the broad strategy framework and policy in which those decisions take place. I hope that I have managed to separate and distinguish the two functions because it would be a mistake for noble Lords to envisage the role of the Children's Commissioner as one in which he would intervene in individual cases. That would then go against the interests not only of the children concerned but also of the parents because it would muddy the waters and could adversely affect a proper decision being reached through the due legal process.

It has never been the intention of the Government that the commissioner should interfere in family life. He will have no investigative, review or monitoring powers in respect of parents or guardians. He is there to promote and safeguard the rights—a point to which noble Lords have referred when speaking to other amendments—and the welfare of children.

I hope that, in the light of this response, the noble Baroness, Lady Young, will not wish to press her amendment because we do not consider that it is appropriate. However, we fully recognise that, in performing his tasks, the commissioner will have to have regard to the unity of family life when examining the welfare of children in their families.

Perhaps I may conclude by saying what a pleasure it is to be able to respond to the noble Lord, Lord Pearson of Rannoch, and to thank him for his congratulations on the Government's White Paper.

5.30 p.m.

Lord Hylton

Before the noble Baroness sits down, can she give the Committee an assurance that the forthcoming government amendment will refer, in terms, to what she has just said about the unity of family life?

Baroness Farrington of Ribbleton

In bringing forward the amendment, we shall want to ensure that the commissioner is able to make representations about aspects of family life that may affect children's rights and welfare. Obviously the context of "family life" and the welfare of children within families is indistinguishable from that.

Lord Thomas of Gresford

This could be a very big day for the noble Baroness. I am sure that all noble Lords will join me in hoping that all goes well for her family.

We welcome the prospect of a government amendment dealing with the position of parents and their rights and responsibilities. We shall have to wait to see exactly how the amendment is drafted before we can comment any further on it.

The matter that seems to have emerged in the course of our debate on this amendment is the question of parents who have been falsely accused of something and who then feel powerless to object to it. That lies behind many of the comments made by noble Lords. It puts a new slant on the rights and responsibilities of parents that I did not fully appreciate when the amendment was first moved. I hope that, when they come to draft their amendment, the Government will consider the concerns that have been voiced on this. We shall then be able to discuss the issue more fully on Report.

Baroness Young

First, I thank all noble Lords who have most kindly supported me on this amendment, and of course I offer my warmest congratulations and good wishes to the noble Baroness, Lady Farrington. We shall compete in the numbers of our grandchildren and discuss that outside the Chamber. I am delighted for her and I hope that all goes well.

I was particularly pleased to gain support from all sides of the Committee because that support demonstrates a recognition of what I believe to be a very serious issue. I take entirely the point just made by the noble Lord, Lord Thomas of Gresford. Indeed, the same point was raised by the noble Lord, Lord Hylton, as well as by the noble Lady, Lady Saltoun, particularly in relation to the case in the Orkneys. The parents affected did not feel that there was anyone to whom they could turn to seek redress when their children were taken away from them. That is an extremely important point.

The cases over recent years where children have been wrongly removed from their parents have become very well known because they caused a great deal of controversy and concern. However, I was not considering only those cases, but those of other parents who encounter difficulties long before they have reached the position where the police or social workers arrive in the early hours of the morning to remove their children; namely, cases perhaps less serious than those which took place in the Orkneys, in north-east England and, I believe, in Ayrshire. Other cases do not reach that point; I am thinking here of parents who are good enough, but are perhaps thought to be inadequate by social workers. In the context of such circumstances, parents need to have their views considered.

That is all I am asking for in this amendment. It is difficult to give an account of what might happen in such cases, but I am sure that all noble Lords can imagine how, in this important but difficult world, situations may arise where the needs of the parents need to be taken into account.

Baroness Farrington of Ribbleton

I thank the noble Baroness, Lady Young, for giving way. I hope that it will be helpful to the Committee if I say now that I would not like to have given any impression at all that the role of the Children's Commissioner would be to intervene in individual cases, but rather to give advice on the policy framework in which individual judgments and cases take place.

Baroness Young

I thank the noble Baroness for making the position absolutely clear. However, when one reads exactly what is set out in Clause 2 as regards the role of the commissioner, it states the following: The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies". There is no mention of parents.

I accept that my amendment may not be drafted properly; in my experience amendments seldom are, whether in government or in opposition. I would withdraw the amendment if I thought that I could be given an undertaking from the noble Baroness that she would take it away and redraft it so that it would meet the concerns of the Government. While I accept that I may not have understood the detail of the argument, I must say to her in all honesty that the government amendment on children's rights and welfare to be brought forward at the next stage and then to go on to the Welsh Assembly—I may have misunderstood her on this last point—does not seem to meet the case.

The noble Baroness came far closer to meeting my amendment in her final remarks when she said that the commissioner will have to have regard to the "unity of family life". I am at a loss to understand why we cannot use the word "parents", which would be understood by everyone concerned. It is because I am uncertain about the Government's position on this that I should like to hear from the noble Baroness whether, were I to withdraw my amendment, she would bring back an amendment redrafted so as to include parents.

Baroness Farrington of Ribbleton

I can give an undertaking to take away the noble Baroness's amendment and read it carefully; but I cannot give an undertaking to include the word "parents" in the government amendment, simply because the ultimate responsibility of the commissioner is to have paramount concern for the welfare of children. I hope I have made it absolutely clear that, in considering the welfare of children, it is obvious that consideration must also be given to the needs and welfare of children in the family. The noble Baroness is pressing me a little too far and I should not like to be misleading. I do not think that there is much between us. I would be extremely happy to talk to the noble Baroness between now and Report stage.

Baroness Young

I am grateful to the noble Baroness, Lady Farrington. I am sorry, I simply do not understand how one can consider the rights and welfare of children without, in some cases, considering the position of parents. It does not add up.

In view of the offer made by the noble Baroness, I shall withdraw the amendment. However, I must be quite clear that if a suitable amendment which does include parents is not brought forward, I shall re-table my amendment at Report stage. I am quite certain that the noble Baroness—and, I hope very much, the noble and learned Lord, Lord Williams—will take account of the fact that everyone who has spoken to the amendment has supported it. Even if the wording is not quite right—and I can accept that—there is general support throughout the House for including something about parents. It seems to me that, apart from anyone else, we owe it to the parents of Wales. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Review of exercise of functions of Assembly and other persons]:

Lord Roberts of Conwy moved Amendment No. 7:

Page 2, line 22, at end insert "primary or"

The noble Lord said: The purpose of Amendment No. 7 is quite clear: it is to enable the Commissioner to comment on primary as well as secondary legislation as it may affect children in Wales.

As I suggested at Second Reading, it struck me as singularly odd that, as things stand, the Commissioner could not comment on this Bill, except, of course, through the Assembly. The Assembly has an opportunity to comment on the Government's legislative programme at the start of a parliamentary session, but that opportunity is primarily for the benefit of Assembly members. If past experience is anything to go by, the programme as outlined by the Secretary of State after the Queen's Speech is very much in draft form with very little detail available.

As I see it, the commissioner will have an interest in many Bills relating to his areas of overview and supervision—local government Bills, education Bills, health Bills and so on. As I understand it, he will not be able to give his views on such Bills direct to Ministers as he and they may wish him to do; they will have to be filtered through the Assembly.

I have read the draft protocol on the Assembly's proposals for primary legislation, which was published in February last year but is still not agreed. The Secretary of State, Mr Paul Murphy, said that it was "very close to completion" on 16th January this year, but it is still not finalised.

The protocol is not very illuminating on this issue, except that the introduction makes clear that references to the Assembly mean references to its officials as well. I take it from earlier proceedings today that the commissioner is, of course, an official or an officer of the Assembly. So I assume that the commissioner may have an input into primary legislation at various stages, but acting through the Assembly.

However, this is not clear because the Bill refers specifically to subordinate legislation only. The commissioner, therefore, if he puts forward comments on primary legislative proposals, may well be told that consideration of primary legislation is beyond his remit.

One is tempted to ask for the Government's view on this and whether the commissioner can comment on Green Papers and White Papers—or will he be expected to do that through the Assembly? I cannot see any good reason for limiting the commissioner to subordinate legislation specifically as proposed in the Bill. I beg to move.

5.45 p.m.

Lord Thomas of Gresford

Sharp eyes in BBC Wales drew to my attention at lunchtime the press release issued today by the Wales Office, in which Mr David Hanson, the Wales Office Minister, is quoted as saying, we intend asking Parliament to amend the Bill to empower the Commissioner to consider and make representations to the Assembly about any matter that affects the rights or welfare of children in Wales"— the very point made by the noble and learned Lord the Attorney-General in opening.

The press release also refers to the new function as being "potentially very wide". It seems to me that that wording can certainly cover the concerns outlined by the noble Lord, Lord Roberts of Conwy. If it is potentially very wide, any matter must include the right to comment on primary legislation.

Lord Prys-Davies

As the noble Lord, Lord Roberts of Conwy, pointed out, it is noteworthy that the subsection refers to the making of subordinate legislation but nowhere does it refer to primary legislation. This is in contrast to the Northern Ireland Human Rights Commission, which has the right to propose any measures which it feels ought to be taken to protect the human rights of children. I believe that the noble Lord, Lord Roberts, has raised an important question which deserves sympathetic consideration by the Government.

Lord Williams of Mostyn

I agree that the question is important, but the analysis of the noble Lord, Lord Thomas of Gresford, is correct on two grounds. First, the rubric on Clause 3, at page 2 of the Bill, is: Review of exercise of functions of Assembly and other persons". If we go to Section 72B—the amendment is concerned with line 22—we see: The Commissioner may review the effect on children to whom this Part applies of— (a) the exercise or proposed exercise by the Assembly of any function". The Assembly has no function in passing primary legislation; it can deal only with secondary legislation.

I come back to the analysis of the noble Lord. Lord Thomas. If the Committee agrees, we will put the empowering clause into the Bill on Report. This will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. That would plainly entitle the commissioner to make representations to the Assembly about the effect of primary legislation on Wales. But, of course, the lawmaking body for primary legislation under the Government of Wales Act remains with this Parliament in Westminster. The noble Lord, Lord Thomas, is absolutely right.

Lord Roberts of Conwy

Perhaps I may ask the noble and learned Lord about his comment on the function of the Assembly—or, rather, the lack of function—in relation to primary legislation. The Assembly does have the function of listening to the Government's legislative programme, which is usually outlined by the Secretary of State; it can also—as clearly has happened with this Bill—be considered in a plenary session of the Assembly; and it can be considered by a committee of the Assembly. Although the Assembly does not have the power to make primary legislation—that power belongs to Westminster—such a committee could have a considerable input into the process. The protocol relating to the Assembly's proposals for primary legislation is still in draft form; nevertheless, it anticipates involving subject committees of the Assembly in amendments to Bills and so on. So, although there may not be a function so far as primary legislation is concerned, the Assembly has its role in the preparation of primary legislation on occasion, and indeed in amending primary legislation.

We are dealing with a particular Welsh Bill at the moment, but clearly the commissioner will have an interest in Bills relating to local government, education and other areas where he has an overview. The commissioner may well express his views through the Assembly and the Assembly may then transmit those views to Ministers and those preparing legislation that will affect the Children's Commissioner's field of supervision and overview. Is not that the case? If it is, why is the Bill so specific in stating that the commissioner's function is limited to subordinate legislation only?

Lord Williams of Mostyn

Because that is the only power that the Assembly has. The answer to the noble Lord's question can be seen if we consider how the subparagraph would read were his amendment to be successful; namely, The commissioner may review the effect on children to whom this Part applies of … the exercise or proposed exercise by the Assembly of any function, including the making or proposed making of", "any primary", or subordinate legislation". The Assembly has no function to make or propose to make any primary legislation.

Lord Roberts of Conwy

The noble and learned Lord realises that I must answer: "But, of course, Westminster has". The commissioner will be dealing with the contents of legislation passed in this Parliament in relation to Wales and as it affects children in Wales. Surely that will be the position.

The obverse of that particular coin is that the commissioner can comment on subordinate legislation—the legislative sphere of the Assembly, which funds and appoints the commissioner—but by using the phrase "subordinate legislation" we appear to be debarring the commissioner from commenting on primary legislation that may well affect him and the children of Wales.

Lord Williams of Mostyn

I return to the analysis by the noble Lord, Lord Thomas: there is no function of the Assembly that can include or comprehend the making of primary legislation. The amendment, were it to be passed, would not be consistent with the Government of Wales Act. However, the amendment that we have discussed and are bringing forward will entitle the commissioner, if he so wishes, to make representations to the Assembly about the effect on children in Wales of primary legislation.

Lord Roberts of Conwy

I am grateful to the noble and learned Lord for that last sentence in particular. It clarifies the situation and the main point that I sought to make. I am happy to withdraw the amendment, and beg leave to do so.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Thomas of Gresford moved Amendment No. 9:

Page 2, leave out lines 37 and 38.

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 10, 15 and 16.

I knew that things were going along far too cosily between the noble and learned Lord the Attorney-General and myself. At this point I must differ on the primary legislative power of the Assembly. This first Bill relating entirely to Wales gives primary legislative power to the Assembly in the sense that, under proposed new Section 72B(2), the Assembly can amend the primary legislation that is already in place.

This is a Henry VIII provision, but is subject to all kinds of limitations. Under subsection (2) the Assembly may by order (by subsidiary legislation) amend proposed new Section 72B—primary legislation—or proposed new Schedule 2A, which is also primary legislation, in the ways that are set out in the subsection. The same power to amend primary legislation is mirrored in Clause 4(9).

That power having been granted, all kinds of conditions, qualifications and limitations are placed upon it, and are set out in Clause 3(3). In relation to an order adding a person to proposed new Schedule 2A, such amendment can happen only if, some or all of the person's functions are in a field in which the Assembly has functions".

Subsection (6) states: The Assembly may not make an order under subsection (2) if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions". These qualifications and limitations very much constrain and constrict the power of the Assembly to amend, by order, the principal statute.

I am left in something of a quandary in relation to these amendments as we now have the promise of further amendments being brought forward which will change the position drastically. So the limitation in the provision, the person's functions are in a field in which the Assembly has functions", will presumably go.

The purpose of my amendments both to Clause 3 and to Clause 4 is to simplify the limitations placed on the Assembly by subsections (3) to (6) and those placed on it in proposed new subsections (5B) to (5E) in Clause 4. I do not know how far I can press the amendment at this stage because I have not seen the amendments promised by the Government. I beg to move.

Baroness Farrington of Ribbleton

The noble Lord, Lord Thomas of Gresford, was right when he identified areas of division. However, he did not identify them all. I believe that there is quite a wide division between the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Roberts of Conwy, in terms of the role of the Assembly.

My noble and learned friend referred to the fact that, having considered issues raised in another place, we shall bring forward an amendment to the Bill which will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. I hope that when Members of the Committee see the amendment, they will agree that its spirit reflects that requirement. The new function will allow the commissioner to make representations in connection with any person or body, whether or not the Assembly has devolved responsibility for it.

Although the new clause will allow representations to be made about non-devolved issues, we remain of the view that it is appropriate for the Assembly's power in regard to secondary legislation to be exercised unilaterally only in respect of those bodies for which it has a clear responsibility—local government being a case in point. But that does not prevent other bodies being added; it merely means that, quite properly, the Assembly must first consult the Secretary of State when it has only a minority interest. Here again, we have a point upon which there are different opinions in the Committee as regards the state of affairs—or, in the case of the noble Lord, Lord Thomas of Gresford, the desirable state of affairs—in relation to powers conferred on the Assembly.

However, I believe that the noble Lord, Lord Thomas of Gresford, is right to say that he will need to have sight of the amendment that the Government propose. I should be delighted to offer an opportunity for discussions to take place in the light of the noble Lord having had the benefit of seeing proposed government amendments between now and the Report stage.

Lord Thomas of Gresford

Who could refuse such an invitation! In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

6 p.m.

Lord Roberts of Conwy moved Amendment No. 11:

Page 3, line 2, leave out "at least half" and insert "a proportion"

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 14. The amendment relates specifically to the power of the Assembly to add to the bodies in Schedule 2A. Those are the bodies that will be subject to review as to the effect of their activities on children. One wonders precisely what bodies the Government have in mind as possible additions. There is a host of voluntary organisations, ranging from Scouts and Girl Guides to the Welsh League of Youth, with its 50,000 members. In passing, I am bound to say that the air has been remarkably free of scandal over the years.

Those organisations were supported by the Welsh Office for many years, and latterly by the Assembly—perhaps not as to "half' of the expenditure regarding their functions as specified in Clause 3(3), but substantially. I should have thought that there was an argument for including them in the commissioner's remit. If that argument stands, we should not have the hurdle of establishing that "half" of their expenditure is being met by the Assembly. If the organisation is supported by taxpayers through the Welsh Office, as it used to be, and now by the Assembly, that should be enough.

There are also other organisations dealing with children that have a charitable or a statutory basis; for example, the Churches, which have not always been beyond reproach in the area. The troubles of the Roman Catholic Church and the archdiocese of Cardiff will be known to some noble Lords. I shall say no more about them. Other bodies have extensive dealings with children in Wales. I have in mind the broadcasting organisations—the BBC, HT V and S4C—which are surprisingly absent from the schedule. I hope that the Government will comment on that aspect, as well as on the key point that "half" the finances of such organisations need not necessarily be derived from government or Assembly sources.

Amendment No. 14 is a replica of the preceding section in the Bill. It would give the power to amend this section or Schedule 2B to the Secretary of State, as well as the Assembly. The "Secretary of State" here means any Secretary of State, including the Secretary of State for Wales. The purpose of the amendment is to deal with cross-border issues. I hope that it will prove to be a helpful amendment. Some children who are in Wales do not easily fall into the category of "ordinarily resident in Wales". Therefore, if the Secretary of State who is responsible for providing them with services so desires it, they can he brought under the arrangements of the Children's Commissioner. Again, I cast my mind back to that particular home that I visited in Powys during my ministerial days which contained children who came predominantly from Birmingham.

As time passes, it is possible that children in non-devolved areas of government may clearly need to be brought under the commissioner's remit. I note, for example, that the Government are planning to provide some 400 additional secure training centre places for young people in custody. If any of those places are in Wales, the Government may well wish the Children's Commissioner to have a role. I shall remind the noble and learned Lord of the words in the White Paper. I quote from paragraph 2.14 at page 32, which says: We also plan over the next five years to build 400 additional secure training centre places, providing intensive supervision and high quality programmes for young people in custody. As far as possible, these places will be near to offenders' home areas so that effective links can he made with education and other services which will deal with them after release". Surely it would make sense in such cases for the Children's Commissioner to have some oversight while children are in those secure training centre places, which may well be local authority establishments. He would then be in a better position to talk about their lives and the services available to them thereafter. I beg to move.

Lord Williams of Mostyn

As the noble Lord pointed out, Amendment No. 11 would allow the Assembly to subject additional bodies in the future to the function of review by the commissioner. That would occur without the Secretary of State's consent, provided that at least some funding—however minuscule—came from the Assembly, and even though the relevant body's involvement in the areas of devolved responsibility might also be negligible. We do not find that proposal acceptable. At present, the order-making power to add bodies requires the Secretary of State's consent if less than half the body's funding is provided by the Assembly. I believe that we are dealing with a difference of approach. Our policy is that the commissioner's main field of jurisdiction should be in respect of bodies that have functions within the Assembly's devolved fields of responsibility. That is my objection to Amendment No. 11.

Amendment No. 14 would give the Secretary of State power to amend, add to or delete from the list of bodies subject to review and to monitoring arrangements without reference to the Assembly and without having to satisfy any criteria. Again, I do not believe that that can be right. If carried, the amendment would not be consistent with giving the Assembly maximum autonomy and discretion in secondary legislation. It would be a recipe for confusion. Under the amendment, the Secretary of State might make changes with which the Assembly disagreed—or, indeed, vice versa—and each might try to overturn the changes introduced by the other.

I do not believe that Amendments Nos. 11 and 14 represent the way forward. I appreciate that these amendments were tabled before I made the announcement earlier this afternoon; namely, that, if our amendment is accepted, the commissioner would be able in the future to consider and make representations to the Assembly about any matter affecting children in Wales. Therefore, he would have the wider locus, but not one that followed the route proposed by these amendments.

Lord Roberts of Conwy

I am grateful for the noble and learned Lord's comments. As regards Amendment No. 11, I was trying to be as helpful as I possibly could. It seems to me that the Assembly would have to investigate a body's finances and even establish that half its expenditure was supported by the Assembly. However, I propose simply that if taxpayers' money is allocated to an organisation via the Assembly, it should be allocated to those bodies that are subject to review by the Children's Commissioner. However, the Government are content with their proposition and do not consider that my proposal improves it.

As regards Amendment No. 14, I seek to deal with cross-border issues where they arise and where it might be the wish of a Secretary of State to place particular children in Wales within the jurisdiction of the Children's Commissioner.

I mentioned the situation with regard to secure training places for young people in custody. It is not inconceivable that as that proposal develops—it involves education, training and other matters, all areas in which the commissioner is involved—a Secretary of State, rather than the Assembly, might wish the commissioner to have oversight of such young people in Wales. Nevertheless, I hear what the Government say and clearly my views are not acceptable to them. I am not minded to press them at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Conwy moved Amendment No. 12:

Page 3, line 12, leave out "by members of the public"

The noble Lord said: This is a probing amendment. I think that I know what the Government are anxious to avoid; namely, an overlap between the commissioner and local government and health ombudsmen. I agree that that would be regrettable. I note that the police are excluded from the measure. There is no possibility of the Assembly adding them to the schedule.

The noble and learned Lord will be aware from his reading of the Waterhouse report, Lost in Care, and from other knowledge that when abuse occurs on a significant scale no one is above suspicion. Rumours abound. Even the police and the inspectorate may be alleged to be implicated. The question remains: how best is the matter dealt with? How do the commissioner and the Assembly deal with it? I am not at all certain that the best course is necessarily to exclude investigators and supervisors from the commissioner's overview. There is need for constant vigilance in this sphere. One is left with the question: quis custodet ipsos Custodes? I am sure that the commissioner fulfils that brief well. He should certainly not be excluded from it. I beg to move.

6.15 p.m.

Lord Williams of Mostyn

The noble Lord is right as regards our thinking on this aspect. The Bill as it stands prevents the commissioner from reviewing the activities of other bodies set up to deal with complaints by members of the public or from monitoring investigations by such bodies. There is a very similar provision in Schedule 9 to the Government of Wales Act 1998 which relates to the Welsh Administration Ombudsman. It is sensible that there should not be confusion between the roles of broadly similar bodies.

However, on the wide-ranging—in terms of consequence—amendment to which I have already spoken, the commissioner will be able to consider and make representations to the Assembly about other investigative bodies in so far as they may be involved in matters that affect the rights or welfare of children in Wales. I believe that that would meet the noble Lord's point; namely, that, where appropriate, representations could be made to the Assembly but that there would not be a duplication of function. I believe that both he and I seek to avoid that.

Lord Roberts of Conwy

I am grateful for the noble and learned Lord's comments. As I said, this is a probing amendment. I dare say that the new amendments that we shall see on Report will deal with the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Conwy moved Amendment No. 13:

Page 3, leave out lines 16 to 19.

The noble Lord said: In moving Amendment No. 13, I wish to speak also to Amendment No. 17. The amendment concentrates on the major issue of why the commissioner is confined to devolved areas and cannot operate in non-devolved areas of government. We have been given a considerable amount of enlightenment this afternoon on this issue but we still await the tabling of the Government's amendments on Report.

At present there are substantial areas where children are involved which the commissioner cannot touch. I quote front subsection (6) of Clause 3 which the amendment seeks to remove. The Assembly cannot add to Schedule 2A by order, if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions".

A similar provision is contained in Clause 4 which prohibits the Assembly making orders as regards Schedule 2B.

We are all familiar with the consequences. Arrangements made by the Home Office, for example, to deal with young offenders in custody may not come within the commissioner's purview. As I said earlier, this is an important area and is likely to become more so as the Government plan for 400 secure training places in addition to those in current use.

I note the case of the 13 year-old persistent offender on page 31 of the White Paper, Criminal Justice: The Way Ahead. The boy was detained in a local authority secure unit. If that case had occurred in Wales, I assume that the commissioner would have had some oversight of it in view of his local authority responsibilities. We are concerned about young offenders. I am sure that reports such as that of the Chief Inspector of Prisons, Sir David Ramsbotham, on Brinsford YOI are very much on our minds. I need hardly remind the Minister of Sir David's words, Brinsford's regime, with all the indicators we found of self-harm, fear for safety and bullying, puts most of its juvenile population at risk of harm". It would seem peculiar if that kind of situation were to occur in Wales at some time in the future and the Children's Commissioner had no role to play. Other departments of state which deal with children are the DSS, through the CSA and the benefits system, and the Ministry of Defence through the cadet forces.

We understood that it was government policy to confine the commissioner to the devolved areas. The noble Baroness, Lady Farrington, made that clear on Second Reading. She said: The issue of whether there is in principle any reason why the Government should not legislate for the commissioner to have a role in respect of non-devolved services is one of policy rather than constitution".—[0fficial Report, 19/2/01: col. 570.]

Why have the Government adopted that policy? I pointed out at Second Reading that Section 7 of the Welsh Language Act 1993 empowers the Welsh Language Board to give notice of its requirement to any public body operating in Wales, whether devolved or not. The commissioner could have been similarly empowered, but he has not been. Reference has also been made to Section 68 of the Northern Ireland Act 1998, which creates the Northern Ireland Human Rights Commission. The legal opinion obtained by the campaign group is that the function of that commissioner is in no way limited to transferred powers alone or even to transferred and reserved powers. It is a powerful body whose first target is the juvenile justice system, which is a reserved area.

There is no doubt that the Assembly's Health and Social Services Committee had such a powerful commissioner in mind. It said as much in its report. As we have not quoted the report very much this evening, I think that paragraph 29 merits inclusion in the record. It says: We have given consideration as to whether the Commissioner's remit should include policy and services that affect children in Wales but for which responsibility has not been devolved to the Assembly, such as the benefit system. We believe that such jurisdiction would he desirable to promote the rights and welfare of children in Wales. The widest possible functions in respect of non-devolved policies and services should be explored and, as a minimum, the Commissioner should be able to consider and make representations in respect of any non-devolved matters affecting children in Wales in a way similar to the Assembly's right under section 33 of the Government of Wales Act, which is an exercise in respect of non-devolved functions. However, we recognise that such a proposal would be subject to negotiation with the UK Government".

That negotiation has clearly been going on and the Government appear to have listened. There are all sorts of possibilities ahead. We do not know how generous the proposed amendment will be, but we have had a reasonable outline of it today. I detect that the Government's view is that, as the commissioner is an Assembly appointee and funded by the Assembly, he must be confined to the Assembly's areas of responsibility. He can make informal representations and what he says will be given every consideration, but he will not have power to demand information, let alone interfere in non-departmental affairs. We hope that that position has changed slightly. As the Government's amendment is not yet available to us, I beg to move the amendment in the hope of hearing further comment.

Baroness Farrington of Ribbleton

I believe that I can help the noble Lord. His example of children placed in local authority secure units would obviously fall directly within the devolved functions, so there would not be the problem that he envisages.

I repeat. The amendment that the Government will table to empower the commissioner to consider and make representations to the Assembly about any matter affecting children in Wales will allow him a locus in respect of bodies that have no functions within the Assembly's devolved fields of responsibility. I hope that that reassures the noble Lord that the commissioner's ability to make representations will not be confined to the Assembly's areas of devolved responsibility.

I appreciate that there may still be some nuances between us on the subject, but I hope that the noble Lord will accept my assurance.

Lord Roberts of Conwy

I am grateful to the Minister. The more that we hear about the proposed amendment on Report, the higher our expectations become. Knowing the ministerial team, I trust that they will not disappoint us. It sounds as though the Government have advanced their thinking considerably, but I shall wait to see it all in black and white. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Review and monitoring of arrangements]:

[Amendments Nos. 14 to 17 not moved.]

Clause 4 agreed to.

6.30 p.m.

Lord Roberts of Conwy moved Amendment No. 18:

After Clause 4, insert the following new clause— "EXAMINATION OF CASES In section 74(3) of the Care Standards Act 2000 (c. 14) (examination of cases) before paragraph (a) insert—— "(za) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies:"."

The noble Lord said: Section 74 of the Care Standards Act 2000 deals with the commissioner's power to examine particular cases and provides for regulations to assist him. Notable by its absence is any power for the commissioner to gain access to institutions that include children. The amendment would remedy that.

The Government seek to explain the situation by saying that they do not want the commissioner to become too involved in individual cases, except when there is a principle involved. They say that things have moved on since the Waterhouse report. The noble Baroness, Lady Farrington, stressed that point in a letter to those of us who spoke on Second Reading. We are told that there are new officers and procedures in place. In short, there is no need for the commissioner or his staff to carry out spot checks at institutions.

I should like an update on the current position of the implementation of the Care Standards Act. Is the inspectorate in place? The situation is worrying. Of course things are changing and will change. Many of the homes in which abuse took place have been closed and only 10 per cent of children in care are in institutional homes. The majority are now fostered. However, I am bound to warn Ministers that the confidence that we see developing these days prevailed in the 1980s as well. We all know where that got us. Courts put children into the care of local authorities convinced that they would be safer there than in the conditions in which they were found. There was complacency all round, which is frightening in retrospect.

I know that the noble and learned Lord the Attorney-General has studied Sir Ronald's report. He will be aware of the extent of the corruption that invaded certain homes and authorities. It was the nearest thing to an Internet virus in present day terms, and it affected everyone one way or another. Suspicion paralysed those in authority who should have known what was going on but did not.

Therefore, it is not surprising that one children's organisation, the NSPCC, which is very close to children, is urging Peers to amend the Bill in order to allow the commissioner an express right to visit and have access to institutions, such as residential children's homes, in cases of alleged institutional abuse. It is also urging that the commissioner should be able to require bodies or persons to provide information. The NSPCC says that that would have been of great assistance when concerns were first raised about cases of child abuse in North Wales in the 1990s. I believe that the concern started even before then.

Of course, assurances were given by Mr David Hanson in the other place about the way in which individual cases would be dealt with. The NSPCC considered those assurances and found them insufficient. It said: We appreciate that in the majority of cases access to institutions would not be denied but experience has shown that in the small number of cases where parties are obstructive that the greatest risk to children exists. The right of access to institutions is a common feature among many Children's Commissioners and Ombudsmen in Europe. By definition, Children's Commissioners should have oversight of child protection systems but would not be involved in the work of such inspectorates as a matter of course, only in the case of an alleged failure".

It is that last clause that really concerns us. We accept the point that it will not be the normal duty of the Children's Commissioner to visit homes and institutions but we believe that he should have the power to do so.

I have said this before and I shall say it again: I cannot see how the commissioner can do his job properly if he does not have the right of access to the children who ultimately are his responsibility, wherever they may be. How can he listen to them—a point much stressed by the Assembly committee—if he cannot gain access to them? The lesson of Waterhouse is that one can establish whatever system one likes but none is perfect, none is foolproof, and its operation must be checked again and again.

Finally, the commissioner must be able to check his findings when he examines a particular case which involves a matter of principle. He must be able to check his findings and recommendations against what is happening on the ground; otherwise, his conclusions will be in danger of being too theoretical and detached from reality. I believe that it is inconceivable, particularly in Wales, that a children's commissioner should not have the power to visit children's homes. I repeat: it is inconceivable.

I believe that the Government are making very heavy weather of this point. Ministers in the Assembly, as well as, I am sure, Ministers in the Welsh Office, were able to visit such homes. Therefore, I very much hope that the Government will think again about the whole problem of access by the Children's Commissioner to children when a genuine case concerns him. I beg to move.

Lord Thomas of Gresford

I very much support this amendment, to which my name is attached. I am also grateful to the noble Lord, Lord Roberts of Conwy, for taking us back to Section 74 of the principal Act. During discussions on this Bill we have been told many times that the role of the Children's Commissioner is to have a large oversee and not to become involved in the detail. However, Section 74—no amendment to that section is proposed in the current Bill—lays down that regulations must be put in place for the examination by the commissioner of the cases of particular children. Therefore, it is intended that the commissioner will look at individual cases.

The regulations are to set out the types of cases to be examined, the circumstances in which an examination may be made, the procedure for conducting an examination, and the publication of reports. Extensive powers are given to the commissioner to enable him to require witnesses to come forward and give evidence. Indeed, in respect of the attendance and examination of witnesses and the provision of information, the commissioner has the same powers as the High Court. Such powers are enforced by the certifying of an offence to the High Court. Thus, a person who so offends may be dealt with as though he had committed an offence which would be dealt with in the High Court.

Those powers are considerable—to summon and hear witnesses and to look at papers. What is missing? The power to enter premises and to have a look, or, as we lawyers would say, to have a view. Therefore, it appears that there is a positive lacuna in the principal Act in relation to the powers of the commissioner. He can look at individual cases and he can summon witnesses and call for papers. Surely he should be able to look inside the institution where the problem has arisen.

The answer we were given at Second Reading was, "Oh well, under the Care Standards Act there is now an inspectorate which will carry out detailed inspections of institutions, and the commissioner will have an oversight of what it does". But how can the commissioner have an oversight of his inspectors if he cannot see the premises which they have inspected? Surely, he must be able to have a look at an institution which is the subject of a report so that he may come to his own conclusion and make his own judgments.

The example of the Chief Inspector of Prisons has been referred to by the noble Lord, Lord Roberts. Mention was made of a penal institution which the chief inspector condemned. Today, he gave a star to another institution. He has the right to inspect and other people are able to carry out inspections of prisons on his behalf. Why should not the Children's Commissioner have a similar right? I support the amendment.

The Earl of Listowel

I also support the amendment. I find the arguments put forward by noble Lords who support the amendment compelling. I do not believe that in the course of his work a commissioner should feel inhibited from getting in touch with the grass roots. I am not sure how successful a commissioner could be if he relied on reports to make judgments about the type of institution that we are discussing. The noble and learned Lord may reply that, of course, the commissioner is able to visit institutions, and normally institutions would agree to such visits. However, I am not sure that the right message will be sent to the commissioner if he does not have the right to enter institutions freely.

Lord Williams of Mostyn

I believe that part of the difference between the respective views that have been expressed and those that I shall mention arises out of a difference in view about what the commissioner is there to achieve. Fundamentally, Sir Ronald Waterhouse's recommendation was not that the commissioner should be engaged in law enforcement or inspection. One understands the reason for that because the care standards inspectorate will soon be about its work. I shall come to that in a little more detail in a moment. Sir Ronald's view was that essentially the commissioner's role should be one of strategic overview and monitoring. That is what the Bill is concerned with; namely, the, Review of exercise of functions of Assembly and other persons", and with the, Review and monitoring of arrangements". There is a serious danger in this context of confusing the roles that were identified by Sir Ronald—namely, strategic overview and monitoring—with those of law enforcement or inspection. Many agencies are engaged in law enforcement and some agencies are engaged in inspection.

Apart from Sir Ronald's view, which I believe I have represented fairly, it is worth examining the Assembly's consultation paper on this matter, which followed the committee's report. Paragraph 27 on page 9 states the relevant aim: To reflect the recommendation in the Committee's report in respect of the Commissioner's examination function, we propose that the Commissioner should examine the cases of particular children only where he considers they raise matters of principle which have a more general application or relevance to the rights and welfare of children than those in the particular case at issue". The noble Lords, Lord Thomas of Gresford and Lord Roberts, rightly took us back to Section 74 of the Care Standards Act. There is no lacuna in this context if one understands the commissioner's work because, as the noble Lord, Lord Thomas, rightly said, the regulations will include provisions about the types of cases that may be examined, the circumstances in which an examination may be made and the procedure for conducting an examination and the publication of reports. Provisions requiring persons to provide the commissioner with information—they might well apply to those working for social services or a local authority—could impose an obligation on care standards inspectors to provide information. Also relevant in that context is the production of information for the purposes of an examination or for the purposes of determining whether a recommendation in a report has been complied with.

The noble Lord, Lord Thomas, rightly said that witnesses can be obliged to attend—the same mechanism operates in relation to the High Court—and to give evidence. There are rules and regulations about the protection of those who may have to attend.

Those considerations do not point to a gap or a lacuna; they point to a consistent approach in relation to what the commissioner's job really is. I sympathise with the comments of Members of the Committee—I agree that it is attractive to say, "Ah, but the commissioner should be able to go and investigate an individual child from a particular home by calling in unannounced". However, that is not envisaged in the Bill and it was not envisaged by the Assembly. I repeat that paragraph 27 of the Assembly's report stated that only when a matter of principle was raised of a more general application or relevance should the commissioner, examine the cases of particular children". That is what the Assembly wished and it is what Sir Ronald recommended.

The noble Lord, Lord Roberts, asked me to give an update on where we were with regard to the care standards inspectorate. Planning is well under way and the information that I have is that the care standards inspectorate will be fully operative in a year's time. That inspectorate has various obligations and statutory duties but so do the 19 area child protection committees, most of which cover the same areas as unitary authorities; the police; the NSPCC; and the National Assembly's committee that is responsible for child protection and which has representatives from various divisions. It is unduly simplistic to say that the commissioner cannot do his job without a right of access. That begs the question about the true description of the commissioner's role.

With great respect, I repeat that that role involves strategic overview and monitoring; it does not involve the job that Sir David Ramsbotham carried out. He is a prisons inspector and he has to go and inspect in order to carry out his duties and to meet his remit. However, the duties and remit of the Children's Commissioner are not analogous to those of a prison inspector or those of an inspector involved with care standards or with the inspection of schools. I sympathise with the good motive that lies behind the proposal but I respectfully suggest that it is not properly conceived.

6.45 p.m.

Lord Thomas of Gresford

I have to take issue with the noble and learned Lord the Attorney-General. Section 73 of the Care Standards Act is entitled: Review and monitoring of arrangements". That deals with the review and monitoring function of the commissioner. Section 74 is entitled, "Examination of cases". It does not refer to the principle that lies behind the cases. It states: Regulations may make provision for the examination by the Commissioner of the cases of particular children". It refers not to a class of children but to "particular children". Section 76, which is entitled, "Further functions", makes it even more apparent that the commissioner deals with individual children. It states: Regulations may confer power on the Commissioner to assist a child to whom this Part applies"— I stress that it refers not to a class of children but to "a child"— in making a complaint or representation to or in respect of a provider of regulated children's services… or… in any prescribed proceedings". Subsection (3) states: The Commissioner may … give advice and information to any person". He may even give financial assistance to an individual child.

It is not right to say that the Children's Commissioner is concerned only with the broad picture and with broad functions. A number of functions are outlined in the principal Act; they range from general review and monitoring, through the more specific section that deals with children and extend to the giving of advice and assistance, including financial assistance, to a single child. Let us not crimp the style of the Children's Commissioner and say, "You are going to swan around Wales looking at institutions or councils in a broad manner". His job includes looking at the individual child. I know that the noble and learned Lord the Attorney-General will take that point on board and consider it carefully before the Bill's next stage.

Lord Williams of Mostyn

I shall certainly do that; we have genuinely tried to pay attention and to be helpful. I take the citations that were given by the noble Lord, Lord Thomas. However, his point does not deal with my citation from the Assembly report, which stated, we propose that the Commissioner should examine the cases of particular children only where he considers they raise matters of principle which have a more general application or relevance to the rights and welfare of children than those in the particular case at issue". That is what the Assembly is asking for and what we are currently providing. Members of the Committee may be of the view that the Assembly should have asked for something different: my point is that it is being given what it asked for.

The Earl of Listowel

Before the noble and learned Lord the Attorney-General concludes, I ask him for elucidation on a point that is slightly distinct from those made so far. If the commissioner has no experience of institutions in which children receive residential care—he may come from an entirely different background—how will he be able to make informed judgments on the performance of institutions that provide residential care unless he frequently visits such institutions and speaks with the children and the staff who work there? My support for the amendment stems from the sense that having a right to enter will make it clear to the commissioner that he is expected to familiarise himself deeply with the situation, even if his main job is to comment on the strategy for monitoring children in such circumstances.

Lord Williams of Mostyn

The noble Earl is not describing what the commissioner is supposed to be doing. That is what the care standards inspectorate, which, as I said, will be set up and operating fully by this time next year, will do. I understand the noble Earl's concern but the inspectorate will carry out regular checks of, for example, children's homes. It can react quickly to allegations of wrongdoing and make urgent, unannounced visits. The commissioner will liaise with the inspectorate. I stress that the commissioner exists to carry out strategic overview and monitoring.

The Assembly did not ask for these powers. It does not want the commissioner to be second-guessing the care standards inspectorate, which is what would happen. The care standards inspectorate was not present, even as a concept, when Sir Ronald was reporting. Time has moved on. I agree with the noble Lords, Lord Thomas and Lord Roberts, that no one who knows anything about the North Wales and the South Wales child care scandals wants to be complacent. And not wanting to be complacent or to drive us to duplication of effort, to give the commissioner work which neither the Assembly nor Sir Ronald Waterhouse recommended and which is not really the job description at hand is not inappropriate.

Lord Roberts of Conwy

I thank, in particular, the noble Lord, Lord Thomas of Gresford, for his support and Members of the Committee who have participated in this debate. I find it very difficult to see the Minister's point of view entirely. He told us that it is not part of the commissioner's job description—that it is not the work envisaged—for him to seek access to children's homes. On the other hand, we know that he has a plethora of duties and protection bodies with which to deal, including the inspectorate.

How can the commissioner take a strategic overview when he cannot go into a children's home or visit a child in hospital? How can he take a strategic overview if he cannot secure experience of what is happening on the ground? I find it a very difficult question to answer. It may not be the work envisaged for him, but it can be part of it as he examines a particular case involving a matter of principle. It may be that the principle involved makes him inquire as to whether there are other cases apart from that particular one which gave rise to this particular principle. He will need to secure such information. Of course, there are other bodies from which he can secure such information.

At the end of the day, surely we are not going to deny him, either in the contents of the strategic overview or the examination of particular cases involving a matter or principle, the right of access to a child in specific circumstances.allowed to play on the course. What sort of membership is that? I do not want to carry that parallel too far.

Lord Williams of Mostyn

What springs to my mind is that one can go to the golf club but not to play rugby.

Lord Roberts of Conwy

I shall not quibble with the noble and learned Lord. There is something here which gives us considerable concern. We are glad to hear that the care inspectorate is on its way but it is still in the planning stages. It is quite some time since Sir Ronald Waterhouse reported and forced its set-up under the Care Standards Act 2000. Certainly things have changed. There is an area of concern here. I should like to consider the matter again and possibly return to it on Report. In the current circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Lord Roberts of Conwy moved Amendment. No. 19: After Clause 5, insert the following new clause—

"RESTRICTIONS

  1. (1) Section 77 of the Care Standards Act 2000 (restrictions) is amended as follows.
  2. (2) In subsection (I) the words ", or has been determined by." are omitted."

The noble Lord said: Section 77 of the Care Standards Act 2000 reads: This Part does not authorise the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal".

The new clause—which is Amendment No. 19—proposes to leave out or has been determined by". I can well understand that the commissioner should not be involved in any way with matters that are sub judice and he should not seek to re-open matters that have been dealt with by a court or tribunal. He is a statutory body with some of the powers of the High Court. However, bearing in mind his broader responsibilities for children's rights and welfare, is that not a sweeping prohibition? That is what I am seeking to probe.

The matter was dealt with by Mr Jack Beatson QC in his opinion for the campaign group. He argued, with reference to the Thompson and Venables case, that had the case been heard in Wales the commissioner should have been able to comment and make representations in relation to the conditions under which the trial was conducted in so far as he perceived them to be in breach of the rights of the children in question.

The European Court of Human Rights found that there had been a breach of Article 6 on that occasion. Mr Beatson refers to recent cases concerning conviction for membership of an Internet child pornography ring. It may be thought inappropriate to comment on sentences imposed upon specific individuals. However, the commissioner's concerns with the rights of the child victims in those cases would make it appropriate for him to monitor the sentencing policy of the courts in such cases and to comment upon the effect that sentences passed may have on the underlying problem of child abuse and pornography. I am not sure that I agree entirely with those views, but I should be interested to hear the comments of the noble and learned Lord upon them.

The noble Baroness, Lady Farrington, dealt with this issue in her letter of 8th March. The thrust of the letter is that the Government must protect the integrity of court decisions in individual cases, and I wholly agree with that. The noble Baroness made reference to the Anna Climbie case; what might have happened had that case been dealt with in Wales and how the health and social services aspect could have been dealt with or looked at by the commissioner. I am mindful of the final paragraph of the letter where the noble Baroness said: The Commissioner may also receive representations about the effect on children in Wales of the outcome of court and tribunal decisions, which he may wish to bring to the attention of the Assembly and relevant UK Government Departments". Does the commissioner have to wait for representations to be made to him? It sounds like taking the option of "calling a friend"—"send me a representation so I can tell the Assembly or some other department of State about it".

I know that there is a lot to be said on this issue. All I have sought to do with this amendment is to probe because many people feel that the commissioner is unduly constrained in his ability to comment on legal and tribunal cases and that the limitations on him should be curtailed. I beg to move.

7 p.m.

Lord Thomas of Gresford

I too support this amendment and attached my name to it. The Attorney-General's previous intervention reminds me of the last occasion I put a ball down on the first tee at Braemar Golf Club and took a swipe at it. My companion said, "I can see you have played rugby before"!

In a more serious vein, this morning I saw a news report concerning the aunt of Damilola Taylor in which she was complaining about the amount of compensation awarded—shades of last week's debate—under the Criminal Injuries Compensation Scheme. Under this clause the commissioner could not comment at all on such a matter, whether in principle or otherwise, because it had been determined by a tribunal. I do not see why there should be such a limitation.

I entirely agree with the noble Lord, Lord Roberts of Conwy, that if we are dealing with matters that are sub judice, obviously no comment, review or separate report from the commissioner is called for. However, once the court has determined a matter, whether it is the Bulger case or any another, the commissioner must at least have the potential to make his views known if he considers matters require commenting on or bringing to the attention of the Assembly; for example, the conditions in which an abused child has been brought up. If the parents of such a child are taken to court and are convicted, is the commissioner unable to comment on the conditions surrounding that child or the education the child received? That cannot be right.

This is perhaps an unnecessary restriction and in the light of the amendment that we are promised by the Government, and which seems to grow the more we talk about this Bill, perhaps further consideration can be given to this point.

Baroness Farrington of Ribbleton

I start at a disadvantage, playing neither golf nor rugby.

As the noble Lord, Lord Roberts of Conwy, said, I commented on this issue in a letter. It is important for me to make absolutely clear for the record that the statement that the commissioner is not authorised to inquire into or report on the outcome of court or tribunal proceedings is already enshrined in Section 77(1) of Part V of the Care Standards Act. This Bill does not introduce any new provision in that respect.

The principle underpinning the existing provision is that courts and tribunals determine specific issues before them and it would not be appropriate for the commissioner to try and re-open their determinations. The proper mechanism for that is judicial appeal. We all agree that that is the due process of law.

However, as I explained in my letter, matters determined by a court or tribunal may be narrow in a specific case and issues that may be discussed or featured in court and tribunal proceedings do not necessarily form part of the matter that is determined. The experience of Members of the Committee will enable them to recognise that. But the commissioner would be perfectly justified to look into issues related to a specific case, such as the actions of an education authority or the functions and actions of a social services department.

The commissioner will be able to make representations, with the benefit of the eagerly awaited amendment, on the basis of his observations, his knowledge, his experience and his information; or he may make such representations following representations made to him, or a combination of both. However, that would not be a re-opening of the justification of either the process of law or the result that was determined by that process; nor could it at any stage intervene, say, between the result of a specific court decision and a process of appeal.

I hope that makes the position clear. We do not want to see the role of the commissioner inhibited in any way. Nor do we want the role of the commissioner to allow, however inadvertently, delay or damage to the due legal process.

Lord Roberts of Conwy

I am grateful to the noble Baroness for her clear explanation of the situation. We have heard a great deal about what the commissioner cannot do. Now we are beginning to hear a little more about what he can do, certainly on this aspect. I for one am clearer in my mind as to the extent of his freedom to comment, receive and present representations in respect of his or someone else's experience of what has happened to them in courts or tribunals in so far as a general problem—perhaps relating to health or social services—arises from such cases. I am somewhat reassured by the words of the noble Baroness and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 20: After Clause 5. insert the following new clause—

"POWER TO MAKE ORDERS OR REGULATIONS

After section 77 of the Care Standards Act 2000 (c. 14) (restrictions) insert— "77A General power to make regulations The Assembly shall, subject to the consent of the Secretary of State. have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act.""

The noble Lord said: Amendment No. 20 arose in this way. I wrote to the noble Baroness, Lady Farrington, on 21st February and said that I had hoped that a convention would grow that where the will of the National Assembly for Wales had been expressed, then the Westminster Parliament would put the primary legislation into effect unless there was a good and stated reason to the contrary. In the absence of such a convention I could see the possibility in the future that if there were different colours of government in Cardiff and in Westminster, considerable conflict could arise. Normally the will of the National Assembly should be conveyed into primary legislation.

That was one of the matters about which I was concerned. The noble Baroness, Lady Farrington, was good enough to reply to me on a number of matters, but in particular she said, The Government is committed to giving full and fair consideration to all Assembly bids for primary legislation. The Assembly's bids are considered alongside those of UK Government departments, all of which compete for Parliamentary time". We all know that there is a competition for parliamentary time. But when are the wishes of the National Assembly for Wales going to be considered?

The third strand which led to this amendment was the fact that, as I pointed out earlier today, within this Bill there are already two limited Henry VIII clauses which empower the National Assembly to alter primary legislation by adding other people to Schedule 2A or Schedule 2B.

It seems to me, putting all these matters together and bearing in mind that responsibility for primary legislation is firmly at Westminster, that it would nevertheless be a matter of great utility if Bills which concern Wales contained a power enabling the National Assembly to make minor alterations without having to queue up for primary legislative time at Westminster.

If one looks at the general power to make regulations, which is the purpose of this amendment, the Bill would provide that, The Assembly shall, subject to the consent of the Secretary of State"—

I shall return to that point— have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act".

That is not a general power for the National Assembly to alter primary legislation. It is limited in two ways: first, the Assembly can act only intra vires if it passes secondary legislation to alter the primary legislation for the purpose of carrying into effect the purposes of Part V of the Act; and, secondly, it has to be subject to the consent of the Secretary of State; that is to say, it has to negotiate with the government of the day, of whatever colour they may be, and that government will have to agree before the kind of minor amendments that I have in mind can be brought about.

It may be that after a number of years of activity the Children's Commissioner could find that he lacks a particular power; that his remit does not run as wide as he wished that it did or as everybody thought that it did when this legislation was first enacted. Therefore, without having to come to Westminster to bid for the parliamentary time, the National Assembly could make the minor alterations with the consent of the government of the day. Westminster time would not be used up and there would be power in the National Assembly—the democratically elected body— to pass such legislation. In my respectful submission—if I may use those words—to have within each Bill or part of each Bill that is devoted to Wales such a power for the Assembly to tweak the legislation would be to the utility of the devolution settlement. I beg to move.

Lord Elis-Thomas

I couple with my warm support for this amendment an apology for not being present to hear the trailing of the amendment for the Report stage. I was taking part in the first part of the sitting in Cardiff this afternoon. I welcome what I believe has been trailed as an indication that the Government are moving towards the view expressed by a committee of the Assembly.

The principle that the noble Lord, Lord Thomas of Gresford, has ably put forward is one that the overwhelming majority, if not all, in the National Assembly would endorse; namely, that in an area where the Assembly discovers that it may require to strengthen its powers of subordinate legislation, and where that may require changes to primary legislation, it should be able to do so without becoming part of a parliamentary log-jam.

I strongly support the need to establish a convention in the new context of devolution, as mentioned by the noble Lord, Lord Thomas. I do not believe that the National Assembly is in an analogous position to that of a Minister of the UK Government in looking for slots in the parliamentary timetable. The relationship between the UK Government, who are the body that make primary legislation for devolved matters in Wales, and the National Assembly, which is a democratic body, is slightly different. Therefore, it is important that the Government recognise that and when the constitutional committee of this House deliberates on this and other issues, particularly the relationship between devolved bodies and the UK Parliament, that issue may be considered. In the meantime, there is much merit in the amendment.

Baroness Walmsley

I support the amendment to which I have put my name. It is an eminently sensible measure that will oil the wheels of the relationship between this Parliament and the Welsh Assembly. The Welsh Assembly is, as yet, a young body and as it matures it may find that it requires additional measures for which parliamentary time cannot easily be found. This sensible amendment would oil the wheels and would allow the Assembly to have such powers.

7.15 p.m.

Lord Williams of Mostyn

I am grateful for the way in which the noble Lord, Lord Thomas of Gresford, has set out these matters and for the generous remarks of the noble Lord, Lord Elis-Thomas. The amendment to which he referred has been welcomed generally. As we discussed earlier in the absence of the noble Lord, Lord Elis-Thomas, plainly the constitutional committee will have to focus on these matters because this is an evolving situation, as my noble friend Lord Prys-Davies said. The increasing authority—I almost said "dominance"—of the committee chaired by the noble Lord, Lord Alexander of Weedon, is an example of how things change even in an apparently changeless institution such as we all inhabit.

The consequence of the amendment would be unintended. At the moment, under Part V as it exists and under the present drafting of the Bill, the Assembly will be given specific powers to make subordinate legislation where it is required to flesh out the framework provided in the primary legislation, so there is no difficulty there. However, each power to make regulations or orders has been designed separately to link with the respective provision in the Act or in the Bill. That means unpicking the provisions as they stand.

If it were prudent to do that at this time that would not be an argument against it; at least it would not be a "knock-out" argument. However, it would mean giving the Secretary of State power of approval of Assembly secondary legislation. Of course, power of approval means power of veto. The Bill contains such a provision in relation to bodies that are not wholly devolved, which one can understand, but the amendment, as drafted, would give the Secretary of State the override in matters that are wholly devolved, so it would not be consistent with the constitutional settlement. I understand what is wanted but I do not believe that this is the way to achieve it.

Lord Thomas of Gresford

I am afraid that I disagree with what the noble and learned Lord says. I believe that the Secretary of State should have a power to override only where such secondary legislation, whether by order or by regulation, amends primary legislation that has been passed at Westminster. I cannot see that any government would countenance giving the National Assembly a free hand through secondary legislation—by order or by regulation—to amend that which Westminster has passed. It is only in those specific, unusual circumstances that the Secretary of State would have that power.

If the noble and learned Lord looks at Clauses 3 and 4, he will see that, where there is a proposal to amend primary legislation—for example, to make insertions into Schedules 2A and 2B— the consent of the Secretary of State is required. I am not adding anything new. That is already there. I do not believe that there is anything wrong in principle with that, but I believe that that useful mechanism could be inserted into every Bill that affects Wales, that relates to the National Assembly and gives it that power. It is not a power to make major alterations or to make whatever alterations they want; it is simply a power to make such alterations as the Government at Westminster agree are necessary and to put them into effect without joining the queue of parliamentary time.

Lord Williams of Mostyn

I understand that. That is a perfectly understandable objective. I simply indicate that the mechanism produced at the moment will put more shackles on Cardiff because in relation to wholly devolved matters Cardiff will still have to come to the Secretary of State cap in hand. I believe that that is the law of unintended consequences.

Lord Thomas of Gresford

I disagree. This is not the first time that I have disagreed with the noble and learned Lord. We have had many a battle. In that spirit, for the moment, and only for the moment, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 6 and 7 agreed to.

Clause 8 [Commencement, short title and extent]:

[Amendment No. 21 not moved.]

Clause 8 agreed to.

Schedule—[Persons and arrangements subject to review]:

Lord Roberts of Conwy moved Amendment No. 22:

Page 8, line 8, at end insert— "Any police authority in Wales."."

The noble Lord said: I beg to move this amendment and with it speak to Amendments Nos. 23 to 26. These are indicative in the sense that they concern various bodies who have responsibilities for children and young people and those listed in Schedule 2B. I shall not go through each and every amendment, but their arrangements for dealing with complaints, disclosure and advocacy should surely be subject to review. I beg to move.

Baroness Farrington of Ribbleton

The amendment to be brought forward by the Government at Report will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights and welfare of children in Wales, and will allow him a locus in respect of those which have no functions within the Assembly's devolved fields of responsibility. This will of course include all those covered in this group of amendments. I hope that, in the light of this assurance, the noble Lord, Lord Roberts, will feel able to withdraw his amendment.

Lord Roberts of Convey

I am delighted to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 to 26 not moved.]

Schedule agreed to.

In the Title:

[Amendment No. 27 not moved.]

House resumed: Bill reported without amendment.