§ 4.29 p.m.
§ Report received.
Lord Williams of Mostyn moved Amendment No. 1:
Page 1, line 28, leave out subsection (3) and insert—
(3) For subsection (6) substitute—
(6) Regulations may provide for the references to a child in subsection (1) to include references to a person (including a child) who was at any time (including a time before the commencement of this Part)—
§ The noble and learned Lord said: My Lords, grouped with this amendment are Amendments Nos. 3, 4, 5, 7 and 8. If it is convenient, I shall speak to all of them.
§ Amendment No. 1 is a technical amendment. It will ensure that the commissioner will be able to exercise his jurisdiction in circumstances involving a child who has died. Having re-examined the provisions in Clause 1, there may be some doubt about the commissioner's jurisdiction in those sad circumstances. We have had discussions on the matter and re-examined the provisions.
§ Amendments Nos. 3 and 4 are technical amendments, which will ensure that the commissioner will be able to review the exercise of Assembly functions and those of other bodies that are listed in the Bill in the event that they may have delegated the exercise of functions to other persons. For instance, the Assembly delegates its duties to provide careers advice to the Careers Service. The provisions may relate to one or two other bodies. This is a prudent pair of technical amendments, which will remove any doubt about the commissioner's powers.1053
§ Amendment No. 5 will empower the commissioner to consider and to make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. We had an interesting discussion on that matter in Committee. Noble Lords on all sides—Liberal Democrat, Conservative and Plaid Cymru—were eager for such a provision to be included in the Bill. I said on an earlier occasion that we would think about the matter carefully, and I promised to bring forward an amendment.
§ Amendment No. 5 means that the commissioner will have a formal role. I know from discussions with noble Lords on all sides, for which I am very grateful, that this will be a welcome improvement to the Bill, and I need not detain the House further on it.
§ Amendment No. 7 relates to the new power of consideration and representation. As is well known, we believe 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 why the amendment is necessary.
§ Amendment No. 8 will replace the phrase, "county borough" with the phrase, "county borough council or community" council. The amendment virtually speaks for itself. I hope that noble Lords agree that it is appropriate to add community councils in Wales to the list of bodies that are subject to review by the commissioner under Clause 3. I beg to move.
§ Lord Roberts of Conwy
My Lords, I am grateful to the noble and learned Lord the Attorney-General for speaking to this group of amendments. Amendment No. 1 is a welcome clarification and amplification of the scope of the Care Standards Act 2000 and of the role of the children's commissioner. The Attorney-General explained the element of retrospection in the amendment. That is in the Bill's original wording and the Care Standards Act. We have now had three versions of subsection (6)—the Government have clearly had a wrestling match with themselves. There is no denying the fact that the latest amendment appears to be an improvement.
Amendments Nos. 3, 4 and 8 are basically tidying-up amendments. Amendment No. 5 is the amendment of real significance, and I am grateful to the Attorney-General for his exposition of it. It will give the commissioner formal power to,make representations to the Assembly about, any matter affecting the rights or welfare of children in Wales".That gives him plenty of scope and we welcome this development. We are grateful to the Attorney-General for his acknowledgement of our contribution to this advance in the Government's thinking.
The commissioner can make representations only to the Assembly, not directly to another department of state. If the matter that concerns him is outside the Assembly's sphere of responsibility, he will not, as I understand it, be debarred from making the representation. The onus for taking the representation further passes from the commissioner to the Assembly 1054 itself. The commissioner will obviously report such representations in his annual report, which could give rise to questions about what happened to them.
If I understand proposed new subsection (2)(b) correctly in the context of Section 74 of the Care Standards Act, the commissioner cannot examine cases of particular children outside the devolved spheres of government or report on them and he cannot require information, explanation or other assistance from persons outside the devolved areas from, for example, a Home Office institution or the Ministry of Defence. One can see the reasoning behind that and the need for a consistent approach. I am bound to say that one of the problems with having been in government for as long as I was is that one always sees the government's point of view and the benefits of provisions that are neat and tidy and that fit reality to itself, rather than the other way round. However, the Government have undoubtedly moved in this regard, and we are grateful. We wish that they had moved further, but there we are.
As I understand this rather complex amendment, the commissioner may be involved in proceedings arising from a review of the effect on children of the exercise of any function of the Assembly or by any of the regulated bodies that are contained in Schedule 2A. Proceedings may also arise in connection with services relating to children that are provided by the bodies that are listed in Schedule 2B or by regulated services. The commissioner is closely confined to the devolved areas in this regard. The last part of the amendment makes it clear that his general power to make representations that may arise in relation to non-devolved areas is excluded from the area of proceedings.
I hope that the Attorney-General will confirm that my understanding of the amendments is correct. As I said, we welcome them and thank him for the grace with which he introduced them. He did so in response to representations from all parties. We wish that he had been able to go further but we are grateful for the progress that has been made.
§ Lord Thomas of Gresford
I, too, thank the noble and learned Lord the Attorney-General for the clarifications that are contained in Amendments Nos. 1, 3, 4 and 8. I shall say no more about them.
I very much welcome the additional power of consideration and representation in Amendment No. 5. Although we had initially thought in terms of the commissioner having a right to make representations to a Westminster Minister, on reflection I consider that it enhances the importance of the Assembly for the commissioner to make his representations directly to the Assembly and for the Assembly then to consider whether it wishes to carry those representations forward to a specific Minister. That is a good chain of responsibility and accountability and an improvement on the way in which we were moving initially.
My Lords, perhaps I may ask the noble and learned Lord a question on Amendment No. 5, which introduces the,Additional power of consideration and representation".The amendment says,any matter affecting the rights or welfare of children in Wales".I feel that that makes the provision very wide in scope. We are not now talking about children who may be in care or children who come before the courts. As far as I can see, the provision relates to,the rights or welfare of children in Wales",presumably from families who are conducting themselves as families privately do conduct themselves.
Can the Minister give instances of the kind of situation when he thinks the commissioner may consider such representations about the rights and welfare of children in Wales? What does he have in mind? The phrase suggests an extremely wide power, and a power to interfere with private family arrangements. It is difficult to believe that that is the intention and it would be helpful to have clarification.
§ Lord Williams of Mostyn
My Lords, first, I should perhaps say how grateful I am for the generous remarks of the noble Lord, Lord Thomas of Gresford. Secondly, I can say to the noble Baroness that there is no power here to interfere with private family relationships. Amendment No. 5 is a response to questions raised on all sides in our various discussions as to what the role of the commissioner is. The subsection to which the noble Baroness referred says that the commissioner may consider and make representations to the Assembly.
I return to the point of the noble Lord, Lord Thomas. This commissioner is a creature—I do not say that in any derogatory sense; I say it in a sense of commendation—of the Assembly, bearing in mind that this is the first legislation that has arisen since the devolved Assembly was set up. He can make representations to the Assembly. They may involve matters of how social services deal with children; they may involve matters of how the police deal with children. It is right to give the commissioner a wide remit and that is what we expect the commissioner to do.
Obviously, if representations are made to the commissioner to consider matters which he feels are disproportionate or frivolous, he has a discretion not to take the matter further. When he has looked into matters, he has the ability to make representations to the Assembly. After all, the commissioner is intended to be the champion and protector of the rights of children whose rights and welfare, we all agree following the report of Sir Ronald, were previously unheard and unheeded. Therefore this is a perfectly appropriate subsection. It does not give the commissioner power to interfere with individual family arrangements, whatever they may be.
§ On Question, amendment agreed to.1056
§ 4.45 p.m.
§ Clause 2 [Principal aim of the Commissioner]:
Baroness Young moved Amendment No. 2:
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: My Lords, in proposing this amendment I return to the amendment I moved in Committee which had support from all parts of the Chamber. On re-reading the debate I sense a strong feeling among Members that somewhere on the face of the Bill the rights and responsibilities of parents or guardians should be included.
§ I am grateful to the noble and learned Lord, Lord Williams, for our discussion earlier today about these matters and for his letter setting out in some detail the Government's view. As I understand it, both from his letter and from what he said this morning, there is no difference in principle between what the Government would like to see and what my amendment proposes. All that divides us is that I should like to see it on the face of the Bill and the Government feel that it is implicit in the Bill and therefore that my amendment is unnecessary.
§ I am not at all sure that my amendment is unnecessary. I am bound to say, even at this late stage, how disappointed I am that following our debate on 3rd April, when there was a great opportunity to look at this matter, it has been left to the last gasp and a time when it is not possible to amend the Bill. I therefore place on record my deep disappointment about the turn of events.
§ It is an important issue of principle that somewhere parents should be mentioned on the face of the Bill. I recognise—the noble and learned Lord said so and it is in the Bill—that the Bill is designed to help children, particularly children who suffered so much, as Sir Ronald Waterhouse said in his report. But children do not exist on their own; they are part of families. Many issues which involve children also involve parents. There is a danger when we have an Assembly which envisages the commissioner as having not only an investigative function, but also an advocacy function. It is particularly worrying if one considers the underlying child's rights agenda which seeks to promote the new doctrine of the autonomous child.
§ That agenda maintains that families are likely to fail children and that the solution to the problem is to free children from their families and give them adult rights. We hear a lot about freedom of expression, freedom of religion, the right to association and the right to privacy. Those rights are safeguarded largely, if not primarily, by the state. If the state is to fulfil that role, then it must actively monitor parents' treatment of their children and participate in educating and providing for them.
§ We are already seeing pressure for that type of intervention with, for example, the Children are Unbeatable campaign. There is a great danger of the increasing marginalisation of parents in issues with 1057 which I have come to be very familiar such as sexual health education, provision of contraceptive advice, abortion advice and, most recently, the morning-after pill. In all those issues parents are being marginalised.
§ These are serious issues and it is a matter of deep regret that we have not had the time to consider them thoroughly and properly. What the role of parents is seen to be will be a matter of great importance when further Bills of this nature come before the House. If we believe, as I do, that the most important thing is to sustain parents and children together in families—this at a time of the break-up of families and a weakening of the whole of the fabric of society from which, generally, children do not benefit—then we need to recognise that there is an important role for parents. There should be something in that regard on the face of the Bill.
§ I deeply regret the position in which we find ourselves. I shall not press the amendment today. I accept that the Bill should go through. It is what the House wishes, what the Welsh Assembly wishes and what everybody else wishes. But we may well come to regret in the future that something was not said on the face of the Bill about parents. I hope, even at this late stage, that the noble and learned Lord, Lord Williams, will go as far as he can to give the kind of assurances that I and, I believe, many who think hard about these problems, would like to see. I beg to move.
§ Lord Roberts of Conwy
My Lords, I support the sentiments expressed so well by my noble friend in her amendment which we invite the Government to accept. They have nothing to lose by so doing and much to gain.
Amendment No. 2 is an innocuous amendment in the sense that it simply requires the commissioner to have regard to the rights and responsibilities of parents as he exercises his functions. "Having regard to", in layman's terms, simply means giving consideration to and being mindful of parents' parental rights and responsibilities. The amendment does not give the commissioner any more specific duties than that. He is not required to define, safeguard or promote such rights either in general or in particular. But it is an important amendment in our view because, as the noble Baroness, Lady Farrington, acknowledged in Committee, the rights and welfare of children cannot be properly safeguarded and promoted in limbo without reference to their parents or guardians. That was confirmed and amplified by the noble and learned Lord in a letter to my noble friend Lady Young. I certainly hope that the noble and learned Lord will read relevant sections of his letter into his reply to this debate so that it is on the record.
The underlying argument was that as consideration of parents was implicit in the definition of the commissioner's principal aim, there was no need to put my noble friend's amendment on the face of the Bill. That argument can be stood on its head. My noble friend's amendment would make explicit and crystal clear what was expected of the commissioner in that context.
1058 More generally, the noble and learned Lord knows well the inspirational source of my noble friend's amendment. It is a justified concern for the family and its future at a time when that most basic of all human institutions for the care and upbringing of children appears to be losing value and esteem in our society. While it is acknowledged that circumstances sadly arise when children may have to be taken out of their parents' care in their own best interests, that should never occur without the fullest possible consideration being given to the character and reputation of the parents as parents and all the circumstances in which they are bringing up their children. Surely, I am right in believing that a court of law would not act otherwise. It would take the views of the parents and guardians into account.
The Children's Commissioner for Wales, in fulfilling his principal aim of safeguarding and promoting the rights and welfare of children should have regard to no more and no less the rights and responsibilities of the parents. That seems axiomatic to me and the sine qua non in such matters. But it is also precautionary. The state, bodies and persons that stand in loco parentis do not always know best. They are fallible, as we know to our dismay. I know that the noble and learned Lord understands our concerns and I hope that he can be as helpful as possible in the time-constrained circumstances in which we find ourselves. As my noble friend said, we wish this Bill to reach the statute book, imperfect though it may be.
§ Lord Thomas of Gresford
My Lords, I believe that all sides of the House support the concept of the family and the proposition that children are best brought up within a loving relationship which the family provides. Listening to the noble Baroness, Lady Young, I felt that she sees the commissioner as a person who may champion children's rights against those of the parents. I do not believe that that is the thinking behind the Bill at all; rather it is that from time to time children find themselves vulnerable for one reason or another. That may follow the break-up of the marriage or occur as a consequence of the child having been brought up in a one-parent family and so forth. It may be that such children are taken into care.
The commissioner's purpose is not to remove a child from its parents or to interfere in the relationship between them; it is to stand up for the child in a situation where the family has broken down for one reason or another and the child is in a vulnerable position. It may well be that it is part of the commissioner's function to try to strengthen the relationship between the children and parents. I have read what was said in another place by Mr Edward Leigh. I fear that the view of the Children's Commissioner is distorted and that he is portrayed as being someone who takes an adversarial position to the family and parents. I do not believe that that is the case. It certainly does not emerge from the debates in the National Assembly. I am sure that the commissioner will not see his responsibilities in that way.
§ Lady Saltoun of Abernethy
My Lords, I thank the noble and learned Lord for sending me a copy of his letter to the noble Baroness, Lady Young. Having read it, like the noble Baroness. I am still not happy. Perhaps I may ask the noble and learned Lord a question. If he were to accept the noble Baroness's amendment, would it have any deleterious effect on the Bill as a whole? I cannot see that it would. I am still extremely concerned about this matter because I have long felt that sometimes there is too much readiness on the part of local authorities and social workers to take children into care without perhaps always considering what is in their best interests. For a long time I have thought that it was probably better for children to be brought up even in quite a bad home rather than be taken into care. Nothing that has happened in the past 10 to 15 years has made me change that view.
§ Lord Hooson
My Lords, I support the sentiment of this amendment, but if I had drafted it myself I would have inserted the words "the views and the responsibilities of any parents or guardians" because the word "views" concerns something which is to be estimated whereas the word "rights" imports something quite different. It would be a mistake to put the word "rights" into the Bill.
I do not quite agree with my noble friend Lord Thomas of Gresford. There is a basic difference of view between the noble Baroness, Lady Young, and the Government on this matter. I believe it is implicit in what has been said so far that the Government anticipate that the commissioner will always consider the rights and responsibilities and, no doubt, the views of parents in reaching conclusions on various matters.
Amendment No. 5 is in the name of the noble and learned Lord, the Attorney-General. It provides that,The Commissioner may consider, and make repraesentations to the Assembly about, any matter affecting the rights or welfare of children in Wales".As I understand the Government's position, they anticipate and believe that the commissioner, in exercising his right and duty under that paragraph, will pay regard to the strong views that have been expressed by the Government. No doubt the noble and learned Lord can strengthen the statement of views today. I believe that that would meet the fears expressed in debate so far that sufficient emphasis has not been given to family and parents.
Lord Williams of Most n
My Lords, perhaps I may deal with the question raised by the noble Lady, Lady Saltoun of Abernethy, as to whether, if this amendment were adopted as part of the legislation, there would be a deleterious effect. The answer is plainly yes. The amendment is not pace the noble Lord, Lord Roberts of Conwy, that the commissioner should have regard to, but, as the noble Lord, Lord Thomas of Gresford, said it,shall have particular regard to".In other words that is not consonant with the paramountcy of the interests of children in all modern children legislation, not least the Children Act 1989.
1060 However, I understand that concerns have been expressed and I shall do my best to deal with them. I am grateful to the noble Baroness, to other noble Lords and to the noble Lady, Lady Saltoun, for what they said. As has been indicated, I wrote on 10th April to the noble Baroness, Lady Young, copying the letter to all those in your Lordships' House who had expressed an interest.
The whole purpose of the Bill is to extend the commissioner's role as a champion of children's rights and welfare. We do not want that to be diluted. However, in response to the noble Lord, Lord Hooson, I say that the commissioner was never intended to interfere in family life. In respect of the questions and concerns raised by the noble Baroness, Lady Young, I confirm that the commissioner will have no investigative, review or monitoring powers in respect of parents or guardians. That is not part of his work and it is not part of his lawful remit.
Of course, it may be desirable for him to consider and to make representations to the Assembly about aspects of family life that may affect children's rights or welfare. However, in response to requests made by a number of your Lordships to make the matter plain on the record, I stress that the commissioner will need to take a balanced view of all relevant issues that affect children's rights or welfare that include the rights, views—I agree with the noble Lord, Lord Hooson—and responsibilities of parents or guardians.
In my letter of 10th April I indicated that,the welfare of children is inextricably linked to the role of the family and parents".Often they are mutually supportive, but not always, as the noble Lord, Lord Thomas of Gresford, pointed out. It is right and proper that the commissioner, in taking a balanced view, will want to consider the weight to be given to the rights, the views and the responsibilities of parents. I am quite confident—I make this statement deliberately—that the commissioner will want to bear in mind the concerns expressed by the noble Lady and other noble Lords who have spoken and indeed I would encourage him to do so.
In many situations the rights of parents and families and the rights and welfare of children coincide. However, we know that in some circumstances they do not and, sadly, that is why we are discussing this matter. We must not pretend that such differences will never occur. In those cases where there are differences, the Children's Commissioner, given the deliberate purpose of his new office, must consider children's rights and welfare as paramount.
I point out that the Children in Wales Commissioner Campaign Group, including Children in Wales, has fought hard to secure this Bill and fully supports the Government's position. I hope that I have dealt faithfully with the questions that have been asked, and I hope that I have fulfilled the undertaking that I gave this morning to the noble Baroness and to the noble Lords, Lord Roberts of Conwy and Lord Hooson.
§ 5 p.m.
My Lords, I thank my noble friend Lord Roberts of Conwy and the noble Lady, Lady Saltoun, for the way in which they have spoken about this matter. I believe that they reflect what has been a general concern in the House. Looking again at what the noble Lord, Lord Thomas of Gresford, said in Committee, I believe that he thought there was a need to include a reference to parents.
I regret that the Government were not willing to redraft the amendment in an acceptable form. I have already indicated to the noble Lord, Lord Hooson, that I would certainly choose his form of words—to include the word "views"—if that were acceptable. But I regret that that is now water under the bridge. I put this matter on the record because it is an important issue about which I feel strongly.
I am grateful to the Attorney-General for what he has said. Tomorrow I shall read Hansard carefully. I am particularly grateful to him for firmly setting out that the commissioner's powers of investigation do not extend to families. That is an important statement. As we have seen the difficulties that can arise with over-zealous social workers and others, it is important that families should have that kind of reassurance. I am also grateful to him for setting out—in a slightly different but I believe a strengthened form of words in his letter—the work of the commissioner.
I regard those two matters as important because the noble Lord, Lord Thomas of Gresford, said that we are taking for granted the fact that the commissioner will always act in a reasonable manner. The law has to consider what would happen if he were not to do that, which is why one writes in various checks and balances. Of course, I do not anticipate that and I would be upset if that happened, but nevertheless life is full of such difficulties. Following the case of Pepper v. Hart, I know that when people resort to the law, lawyers have to take into account the intention of Parliament when the Bill was passed. Therefore, it is valuable indeed to have the words of the noble and learned Lord the Attorney-General on the record in this way.
As I said, it is not my intention to divide the House on this matter, but it will be valuable to have this debate on the record. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Review of exercise of functions of Assembly and other persons]
Lord Williams of Mostyn moved Amendments Nos. 3 and 4:
Page 2, line 21 leave out "by the Assembly of any function" and insert "of any function of the Assembly
Page 2. line 24, leave out from second "exercise" to end of line 25 and insert "in relation to Wales of any function of any person mentioned in Schedule 2A
§ On Question, amendments agreed to.1062
Lord Williams of Mostyn moved Amendment No. 5:
After Clause 4, insert the following new clause—
§ "ADDITIONAL POWER OF CONSIDERATION AND REPRESENTATION
§ "75A ADDITIONAL POWER OF CONSIDERATION AND REPRESENTATION
(1) The Commissioner may consider, and make representations to the Assembly about, any matter affecting the rights or welfare of children in Wales.
(2) The function of the Commissioner under subsection (1) is exercisable only where he does not have power to consider and make representations about the matter in question by virtue of any other provision of this Act or any other enactment.".
(2) In section 74 of that Act—
(1A) The reference in subsection (1) to functions of the Commissioner does not include a reference to his power to consider and make representations by virtue of section 75A(1).".
§ On Question, amendment agreed to.
Lord Roberts of Conwy moved Amendment No. 6:
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), after paragraph (b) insert ", or
(c) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies."
§ The noble Lord said: My Lords, this amendment is similar to the new clause that I proposed in Committee, but I hope that it is more appropriately placed. Section 74 of the Care Standards Act provides for regulations to be made in relation to the commissioner's function of examining particular cases, the types of case that may be examined, the circumstances, the procedure and the publication of reports. Those are the matters covered by the regulations.
§ The clause goes on to state that regulations may make provision requiring persons to provide information, explanations or other assistance to the commissioner. I am not sure what is meant by "other assistance" in that context. It may include access to institutions for the purposes of an examination or to determine whether a consequential recommendation has been complied with as stated in the clause. I would have thought that it included access in those limited circumstances. I hope that the noble and learned Lord will give us the Government's view on the matter. However, the amendment that I propose would make it explicit that he has a right of access in such limited circumstances.
§ For the avoidance of doubt I suggest that the Government accept the amendment which would limit the commissioner's power of access to the specific purposes of Clause 74. It avoids the Government's main criticism in Committee that it is not the commissioner's function to carry out spot checks on the inspectorate. I understand and accept that view. 1063 The amendment simply enables him to ensure that when he examines a case he has all the right facts and when he has reported on it and made recommendations that such recommendations are complied with to his satisfaction. Surely, he will need that power; or the Assembly will need a power to regulate to give him that power. We are providing merely for regulations to be made to that effect, if they are deemed necessary.
§ It may be said that the Assembly has not asked for the power. Perhaps it has not considered it in as much detail as we have. I believe that perhaps occasionally we should treat the Assembly as Shakespeare treated his audiences at the Globe and elsewhere; he did not give them what they wanted, he gave them what they had not dreamed of. Perhaps on this occasion the Government will agree that we should give the Assembly what it has not dreamed of. I beg to move.
My Lords, I support what was said by my noble friend Lord Roberts. I believe that this is another amendment which would add to the Bill without affecting its main principles. One thing I have learnt in public life is that there is never a substitute for a personal visit anywhere to anything. Long ago when I was chairman of a children's committee—it has long since departed and is now part of social services—it was a regular routine between meetings to visit all the children's homes for which I was responsible. It was possible to do that and one did so every month. One understood a little about what was happening.
In respect of difficult cases, the commissioner might not want to visit again or to look himself or herself, but not to have the right to do so when one wants to is a disadvantage because one is trying to ascertain the facts and the best remedy. The amendment is completely constructive and I hope that it will be acceptable to the Government.
§ Lord Thomas of Gresford
My Lords, at an earlier stage of the Bill we on these Benches called for a wider power of access to institutions. I see that the amendment limits that right of access to the examination of a particular case. I see great force in that and I support it.
§ 5.15 p.m.
§ Lord Williams of Mostyn
My Lords, the noble Lord, Lord Roberts of Conwy, asked me about my view of Section 74(3). It is that as it is in the context of the provision of information, explanations or other assistance, that would not include the legal right of the commissioner to demand access.
I understand the difference of view and perhaps I can briefly set out the Government's view. First, if the commissioner has reason to suspect child abuse, he should inform one of the statutory child protection agencies which have lawful powers of entrance—foremost, the police. Secondly, we need to bear in mind what happened post the Waterhouse report. We also need to bear in mind the Assembly's desired plan for the commissioner.
1064 Normally, a right of access is given in the context of law enforcement or inspection roles. The commissioner's role is not one of inspection. I agree with the noble Baroness that personal, preferably unannounced, visits are an extremely valuable corrective but that is now the duty of the care standards inspectorate for Wales, which is a different body. When one has a commissioner newly set up, and the care standards inspectorate soon to be in place, one does not want to have a blurring of functions. Certainly the report of the National Assembly for Wales did not envisage the access as one of the commissioner's roles; nor is there anything in the Waterhouse report which suggests that.
What the Assembly was looking to and what we have provided, and what the Waterhouse recommendations went to and what we have provided, was to put the commissioner's main, primary role as one of strategic overview and monitoring. One ought not to underrate the importance of the establishment of the care standards inspectorate. That will undertake regular checks, for example, of children's homes and will be expected to react quickly to allegations of wrong-doing; for instance, by making urgent, short-notice or unannounced visits.
If there is an inspection of a children's home, the commissioner may decide to examine a particular case concerning a matter of principle. There is nothing to stop the commissioner requesting a visit should be so wish and it is difficult to see that if the request were made it would be refused. Of course, he could comment on that refusal in any annual report or ad hoc report that he wished, at his own discretion, to make to the Assembly.
I believe that there is a slight difference of emphasis; I am not sure it is fundamental but there is a difference of approach. The real gap which was identified in the past and spoken of by Sir Ronald Waterhouse in his report is now met by the care standards inspectorate. Furthermore, inspections do not always meet the case. Many of the institutions described in such gloomy detail by Sir Ronald were to my personal knowledge frequently inspected by those who did not know what to look for.
§ Lord Roberts of Conwy
My Lords, I am grateful to the noble and learned Lord for his comments. I am grateful in particular to my noble friend Lady Young and to the noble Lord, Lord Thomas of Gresford, for their support.
It seems curious that regulations may make provisions for requiring persons to provide the commissioner with information or requiring persons who hold, or are accountable for, information to provide the commissioner with explanations or other assistance, but that there is no provision for regulations which would enable the commissioner to check things out on the ground for himself.
I listened carefully to what the noble and learned Lord said about rights of access and one must balance that as a fact of life against the power of the commissioner to request visits should be feel them to 1065 be advisable or necessary. I am not altogether satisfied with the present position, but I do not intend to seek the opinion of the House on this matter.
I want to express my regret. Without wanting to go into previous arguments which we expressed in a more general context in Committee, in my opinion the commissioner and the Assembly will before long come to us complaining of the absence of this power. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Further functions of the Commissioner]:
Lord Williams of Mostyn moved Amendment No. 7:
Page 5, line 36, at end insert—
(b) after that subsection insert—
(1A) The proceedings which may be prescribed by virtue of subsection (1)(b) are proceedings relating to—
after subsection (5) insert—
(5A) The references in subsections (4) and (5) to functions of the Commissioner do not include a reference to his power to consider and make representations by virtue of section 75A(1).".
§ On Question, amendment agreed to.
§ The Schedule [Persons and arrangements subject to review]
Lord Williams of Mostyn moved Amendment No. 8:
Page 7, line 7, leave out "or county borough" and insert ", county borough council or community".
§ On Question, amendment agreed to.
§ Then, Standing Order No. 46 having been suspended (pursuant to Resolution of this day), Bill read a third time, and passed, and returned to the Commons with amendments.