Children Bill [H.L.]

HL Deb 15 July 2004 vol 663 cc1414-93

1.47 p.m.

Read a third time.

Clause 2 [General function]:

Baroness Andrews

moved Amendment No. 1: Page 1, line 7, leave out ", subject to the following provisions of this Part,"

The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 5, 14, 16, 17 and 45. It will be fairly obvious to the House that these are technical amendments arising from a change made to the Bill on Report. I shall respond to the amendments tabled by the Opposition at the end of the debate.

As noble Lords will remember very well, when we debated this Bill on Report an amendment was passed that fundamentally changed the commissioner's general function under Clause 2. The main change was that instead of, promoting awareness of the views and interests of children, the commissioner is now, promoting and safeguarding the rights and interests of children. The other changes introduced by that amendment included restricting the commissioner's Clause 2 function to England and extending the definition of "children" for the purposes of Clause 2 to include certain groups of young adults.

I would not want to go back over the debate that we had on Report. I remind the House that my noble friend resisted that amendment and it is now a matter for debate at another time and in another place. But, today, in introducing these amendments I must correct certain anomalies that arose from the change to the Bill and I must correct one minor error in a reference to other legislation. By convention, we must ensure that the Bill leaves this House with any such anomalies corrected.

Perhaps I may briefly explain the amendments. Most of them are the result of restricting the commissioner's Clause 2 function to England. Amendment No. 1 removes words that are now simply superfluous. Those words were required when the commissioner's Clause 2 was UK-wide to make it clear that the UK role was subject to the conditions in Clause 6 that prevented the commissioner becoming involved in devolved matters in the other nations. Now that there is no UK-wide role in Clause 2, those words are clearly not required.

Amendment No. 14 is similar. Subsections (1) and (2) of Clause 6 respectively set out the restrictions on the commissioner's UK-wide function in Clause 2 and place a requirement on him to take account of the other commissioners' work and views when discharging that function. Now that there is no UK-wide role in Clause 2, these subsections are also redundant.

Amendments Nos. 16 and 17 are both needed in consequence of the removal of Clause 6(1) by government Amendment No. 14. Amendment No. 16 is needed to prevent the commissioner from holding an inquiry under Clause 4 into a case where the issues it raises relate to a devolved matter in relation to children in Wales, Scotland or Northern Ireland.

Amendment No. 17 prevents the Secretary of State directing the commissioner to hold an inquiry under Clause 5 where the issues it raises relate to a devolved matter in the other countries of the UK. So, those are the mirror clauses.

Those are the amendments that now arise from the commissioner's Clause 2 function becoming limited to England. The other two amendments in this group relate to the extension of the definition of the word "children" in Clause 2(10). Amendment No. 5 corrects a technical error. The subsection to bring care leavers over 18 within the commissioner's remit refers to the Children (Leaving Care) Act 2000. In fact, that is not right. The reference should be not to the 2000 Act but to the relevant sections of the Children Act 1989 which were inserted by the 2000 Act and set out the relevant local authority duties.

Amendment No. 45 qualifies the definition of "children" in Clause 52. As Clause 2(10) has widened the definition for the purposes of Clause 2, that fact must be reflected in the Clause 52 definition. I beg to move.

Lord Thomas of Gresford

My Lords, we on these Benches very much welcome that the Government have accepted the principle that the commissioner should be confined to England. We asked for that at Second Reading and the National Assembly certainly wanted it. In Amendments Nos. 7, 8, 11, 12 and 15, we have sought to tidy up the Bill in precisely the same way as the Government are tidying it up, so as to remove unnecessary references to Wales, Scotland and Northern Ireland. In Amendment No. 15, we have sought to make it clear that the Children's Commissioner will work with the commissioners for the respective countries on matters that are of a broad interest—such as children's rights and interests throughout the United Kingdom and that the Children's Commissioner for England will also work with the appropriate commissioners on individual matters that concern children in those countries. I hope that we shall hear from the Government that these tidying up amendments are accepted.

Baroness Andrews

My Lords, I am grateful for that response and for the welcome given to the amendments. Amendments Nos. 7, 8, 11, 12 and 15 revisit the issue of the commissioner's role on UK-wide matters and his relationship with the other UK Children's Commissioners. As the amendments are rather complex and difficult to unpick, I want to go through them carefully. I shall start by explaining their consequences and why we cannot accept them as they are, and then set out in more detail the effect.

The package of amendments is clearly designed to follow through, as the noble Lord said, the consequences of what has happened to Clause 2. The current text of Clause 2, as amended by your Lordships' House on Report, restricts the commissioner's general function to England only. As I said, that is now a matter for debate in the other place. At the end of my remarks I shall say a few words on where we are in our discussions.

These amendments seek to "tidy up" the commissioner's other functions in the light of that change; so there is a logic in them. They are focused more on England than the other countries in the UK. However, if I may summarise, the consequence of the amendments would be to create a commissioner who can still carry out inquiries into non-devolved matters in the UK but who will be stripped of formal inquiry powers and who—I think this must be unintentional and I shall explain how it happened—will now be able to carry out inquiries into devolved matters across the UK as well. The result will be a gap in provision following from the fact that there will no longer be a commissioner who is able to carry out an effective inquiry into a non-devolved issue. I am sure that noble Lords would not want to see that.

I turn to the amendments in order to outline the specific effect of the amendments. Amendments Nos. 7 and 8 would remove the commissioner's inquiry powers, such as the power to call witnesses and evidence, when he is carrying out his own inquiries into individual cases in relation to Wales, Scotland and Northern Ireland. Amendments Nos. 11 and 12 similarly remove the commissioner's inquiry powers when he is carrying out inquiries directed by the Secretary of State in relation to those countries. The commissioner would still be able to carry out inquiries into non-devolved matters throughout the UK, but he would be gravely weakened. He would be left with no formal inquiry powers to back him up, only the hope that goodwill will prevail and witnesses will co-operate.

As I explained earlier, government amendment No. 14 removes Clause 6(1) and (2) as those provisions are consequential on the new Clause 2 England-only arrangements. By also removing Clause 6(3) and (4), however, Amendment No. 15 would remove the measures that we have currently set down in Clause 6 to reflect the realities of devolution and which prevent the commissioner carrying out his own inquiries into devolved matters. This will allow the commissioner to carry out inquiries, albeit without any formal powers, into devolved matters in other parts of the UK. I am sure that that was not the intention of noble Lords. Amendment No. 15 would also replace the existing Clause 6 with a requirement on the commissioner to consult and work together with the other commissioners on matters concerning rights and interests throughout the UK.

So, the overall effect would be rather paradoxical. The commissioner would be unable to carry out effective inquiries into non-devolved matters because he would be stripped of his formal powers of inquiry. He would still be able to carry out inquiries but they would not be meaningful. Given that the other UK commissioners are prevented from doing so at all, we would create a situation where no commissioner is able to carry out robust, effective inquiries into cases of individual children across the UK where the case is a non-devolved matter. I would argue that that would leave an unacceptable gap in provision for children who are affected by non-devolved issues such as immigration. Again, I am sure that that was not an intentional outcome.

I understand what noble Lords have tried to do. They have tried to address the gap through Amendment No. 15, by requiring the commissioner to work closely with his UK counterparts. We do not believe that that goes far enough to replace what we have now, which is a commissioner who has the necessary powers to carry out effective, independent inquiries into non-devolved matters and to report back to Westminster where the decisions on those matters are made.

So, although I cannot accept the amendments, I would hope to reassure noble Lords, as I have done throughout the passage of the Bill at every stage, that the whole issue of the commissioner's role in the UK and his relationship with the other commissioners is something that we have taken, and continue to take, very seriously indeed.

I described our intentions at Report stage. We are currently urgently considering ways of paving the way for effective working between the commissioners so that they can be the first port of call and single initial point of contact for children in those countries. Officials at the Department for Education and Skills are working extremely hard with colleagues across the UK to find a way forward to which all four nations can agree, and we hope to be able to offer something to that end when the Bill reaches another place. As I said on Report, that is the point that we have reached. I hope that noble Lords will think that that is sufficient.

I am grateful to noble Lords who have contributed. There has been relevant debate on these aspects of the Bill at all stages and we have certainly enjoyed contributing to that. With those assurances, I hope that noble Lords will not press their amendments.

On Question, amendment agreed to.

Lord Northbourne

moved Amendment No. 2: Page 2, line 24, at end insert— () In carrying out his functions under this section the Commissioner must have regard to the importance of parents and other persons caring for children in improving the wellbeing of children.

The noble Lord said

My Lords, I am moving this amendment at Third Reading because I was unable to move it on Report due to the success of a major opposition amendment to Clause 2. This House and indeed many of the children's charities have, on various grounds, been seriously concerned about the powers and duties which the Government plan for the commissioner. One of those grounds for concern was that he has no obligation to work with or to take into account the views of parents and others caring for children.

On Report the Government introduced an extremely helpful and important amendment to Clause 7. It may be helpful if I quote it. It stated: In making arrangements under this section a children's services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children. Many noble Lords welcomed that amendment. I am grateful to the noble Baroness for the way in which she has obviously persuaded her colleagues that it was a good idea. However, it does not touch on the work of the commissioner. Surely, what is sauce for the goose is sauce for the gander. I believe that the same clause or one slightly adapted as it must be, as in my amendment, should appear in the directions for the commissioner in Clause 2.

Before we pass the Bill on to another place, I should like to hear the Minister either accept the amendment in principle or give the House a convincing reason why it should not be accepted. I beg to move.

Baroness Howe of Idlicote

My Lords, I support the amendment of my noble friend Lord Northbourne. He has consistently argued that the Bill should have a greater recognition of the important role of parents. Indeed, it was fairly amazing that there was no mention of parents when it first appeared. As he has acknowledged, the Government have made a concession in Clause 7.

I have read the extremely helpful letter sent to the noble Earl, Lord Howe, explaining some of the background to the establishment of the various objectives and a copy of the conclusions of Aim High: Stay Real. I could not help but notice the groups which were consulted. The children's own views identified friends and family, parents and carers. They would be expected to identify them and they did so. The importance for children was family and home. The practitioners' views were health and emotional well-being. I would interpret—and we will come to it later—emotional well-being as very much a role for parents and carers. So I quickly but heartedly support my noble friend's amendment and hope that we can ensure that the children's commissioner will have that duty.

Baroness Walmsley

My Lords, we on these Benches also support the amendment in the name of the noble Lord, Lord Northbourne. We are of course aware of the importance of parents and families to the emotional well-being of children. We think that it would be a good signal of the Government's intent for the commissioner and his or her obligation to consult and involve parents at every stage of his or her work if such a phrase were to be put into the Bill.

Lord Hylton

My Lords, I support my noble friend's amendment. If this form of words, which we welcome very much, in Clause 7 is the right one for co-operation between agencies, I cannot see why it should not be equally important in the general function of the commissioner.

The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland)

My Lords, I share noble Lords' respect for the noble Lord, Lord Northbourne, in consistently reminding us and, as the noble Baroness, Lady Howe, said, ensuring that the Government take seriously the question of parents. I am grateful for noble Lords' support and endorsement of our amendment.

I have to say that I disagree with what the noble Lord seeks to do for a very straightforward and simple reason. We have set up the commissioner with your Lordships' assistance in helping us to refine the post—and perhaps sometimes taking us in slightly different directions—in such a way that the commissioner is clearly focused around children and focused as an independent body looking to support and protect children in all the right ways in order to make sure their voices are heard.

I was particularly struck when the noble Baroness, Lady Walmsley, talked about involving parents at each and every stage. That might not always be the best way forward for children and young people. Young people need to feel that the commissioner is for them; mum and dad or their carer or foster parents are important people, but not so important in the commissioner's eyes as they are. That is the way it should be.

The reason I do not want the provision on the face of the Bill is not in any way to detract from the critical importance of parents, carers and family—far from it—but to say that the focus for the commissioner is around children and young children. To have even one very important group added as one to which the commissioner must have particular regard, changes the focus. So, with all respect and with an absolute understanding of the critical role of parents and carers, I just want the Bill to be crystal clear that the commissioner's job and responsibilities are around children and young people.

I am sure that part and parcel of the work of the commissioner will be that he or she will be talking to organisations and to parents and carers. But I would not want that on the face of the Bill for the reasons that I have given.

I hope that the noble Lord will accept that in the spirit in which it is given. I think the amendment changes the focus and that would be a pity. On that basis, I hope he will withdraw it.

Lord Northbourne

My Lords, I am most grateful to the noble Baroness for that explanation. I asked for an explanation and I got one, although I am not wholly happy about it. I recognise the Government's intention is to put children at the very centre of the commissioner's work, but I think that when talking about children they are thinking of teenagers in particular. I know that younger children have opinions. But in varying degrees as they get younger and younger their opinions are perhaps influenced by short-term considerations and a lack of knowledge of the world around them; and parents and carers have a role to play in interpreting the needs and wishes of younger children. I should like to draw to the attention of the House the fact that half the nation's children are under the age of 13.

We must not think that teenagers represent children. Indeed, teenagers often have a special agenda which is different from that of younger children. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Walmsley

moved Amendment No. 3:

Page 2, line 26, leave out "section" and insert "Part"

The noble Baroness said

My Lords, I rise to move Amendment No. 3 and to speak to Amendment No. 4. They also tidy up Clause 2. Amendment No. 3 to subsection (5) of Clause 2 proposes that the power to enter institutional premises and interview children, if necessary in private, should not only apply to the commissioner's general functions under Clause 2, but to the whole of Part 1.

The purpose is to ensure that the commissioner has this power when carrying out a formal inquiry under either Clauses 4 or 5. While we understand that the powers given to the commissioner in relation to formal inquiries include the right to summon witnesses and so on—and that is very welcome—they may not always be appropriate for children, and it may be necessary to enter premises and interview children in the course of an inquiry. So, we need this amendment to ensure that the commissioner has the full range of powers he needs to carry out the job.

Amendment No. 4 amends Clause 2(10) in a similar way. It would ensure that the extended definition of children, which we put into Clause 2 to include care leavers, young people in custody to the age of 22 and young people with disabilities to the age of 21, applies not only to the commissioner's general functions under Clause 2, but to the whole of Part 1, thus including the power to carry out formal inquiries under either Clauses 4 or 5 and the relationship with the other commissioners under Clause 6. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Baroness. I have listened carefully to the arguments put forward as we have debated these issues. As noble Lords know, we agree with the need for the power of entry in Clause 2 and that the commissioner's remit should be extended to include certain vulnerable groups of young children over the age of 18.

Looking specifically at Amendment No. 3, the reason that the Government sought to include the power of entry in Clause 2 was to ensure that under the more manageable general role that the Government still want to see for the commissioner, he or she would have the power to make sure he could seek the views of all children. Should the commissioner be carrying out an inquiry under Clauses 4 or 5, it would be in a more formal context. He or she would be able to summon witnesses and to take evidence under oath. There is simply no need to make the extension that the noble Baroness is seeking under the provisions of Clause 2(5), as it is already covered. Therefore, it is unnecessary. I have taken advice to ensure that is correct. If there is anything further to add, I will get the note now.

Baroness Walmsley

My Lords, the Minister will have noticed from my face that I am rather puzzled. Is she confirming that there is no need to give a special power to enter premises under these circumstances because that is already covered in what we have done to the Bill? If she is, I am satisfied; if not, I am not satisfied.

Baroness Ashton of Upholland

Indeed, my Lords. The noble Baroness would be right not to be satisfied. My understanding is that because we moved from a general power, which is about how to ensure that the commissioner can talk to all children, as we discussed on Report to the more formal powers of conducting an inquiry, the rules around formal powers come into being. Therefore, it is unnecessary to have both. He does not need to have those powers because he has the power to summon people to him in any event, so it is not an issue.

I have checked with the officials, and I understand why the noble Baroness is looking puzzled. If I discover that I have in any way misled the House by saying that, we will correct it in another place. My understanding is that we simply do not need it, because the nature of the formal powers means that the commissioner does not have the problem—which we sought to address under the other part—that he could not get access to children. Because he has formal powers under the inquiry, he does have access to children. The two merge to meet the same end.

It may not look like that, but I am reassured that that is the effect. Of course, if that is wrong I will correct it. There is no difference between us; that is what we both seek to achieve. I understand why the noble Baroness has brought this forward and I am grateful, but the effect is the same; the commissioner can reach the children that he needs to reach, because the powers enable him to do that. I will confirm that in another way, but the House can be reassured that is right.

I can see the logic behind Amendment No. 4, but I must resist it, partly for reasons of principle and partly on pragmatic grounds. The Government do not accept that when young offenders reach the age of 18 they are still "children". In the judicial system they are adults. Although I understand completely that noble Lords who have concerns about young offenders in our institutions would wish the commissioner to have some role, we have strong views about making sure that the commissioner is focused in the right way. The concerns about young adults in institutions need to be addressed in a different way by those who have responsibility for them. There is no desire on my part to run away or move away from resolving those issues. We simply do not believe that the commissioner can resolve all noble Lords' concerns.

I accept that there may be a stronger case in relation to care leavers and young people with learning disabilities, but the amendment as worded is defective, and I must oppose it for that reason. I made a commitment to widening the scope of the commissioner's remit to include young adults leaving care and those with learning disabilities. As noble Lords will know, I was not able to do that because of the adoption of the revised Clause 2 on a non-government amendment, which had more far-reaching provisions than those we were contemplating. I stand by that commitment, and I indicated on Report that there were issues about making the drafting more effective. Another place must look at Clause 2 and determine what it wishes to do. I stand by our commitment to ensure that the commissioner's remit is extended in an appropriate and legally accurate manner to cover those groups. I apologise to the House that I cannot do that now, but it must go to another place to ensure that the legal drafting is correct.

I hope that I have reassured the noble Baroness in respect of Amendment No. 3 that the commissioner can do what the noble Baroness wishes him to do. Our commitment to take forward learning disabilities and young people leaving care shows that we wish to do what the House wants us to do. I hope that the noble Baroness will withdraw her amendment.

The Earl of Listowel

My Lords, before the Minister sits down, there is the Children (Leaving Care) Act, which applies to children in care, and 30 to 40 per cent of young people in young offenders' institutions have come through care. I recently visited a young offenders' institution, and the governor had no idea that the Children (Leaving Care) Act applied to young people in her prison. There is a danger that if we do not include young offenders we will miss out a whole bunch of care leavers simply because the system is rather chaotic. Is it not safer to include them?

2.15 p.m.

Baroness Ashton of Upholland

My Lords, as I have indicated, we wish to do something in respect of care leavers. I have already indicated that we would do that. That would cover care leavers regardless of setting. The difference relates to the specific group that I have indicated of young adults in institutions. We want to ensure that they are classified as adults and that the system is able to support them and care for them in the most appropriate way.

Baroness Walmsley

My Lords, I am grateful to the Minister for her reassurances on the subject of Amendment No. 3. On Amendment No. 4, I am disappointed that she is still resisting putting in young offenders. The logic of our amendment to include young people up to age 22 is that that is the age at which they move from young offenders' institutions into the adult penal system. I also welcome what the Minister said about putting right the extension of the definition of "children" in the other two respects in another place. Despite my disappointment, I hope that colleagues at the other end of the building will take up that point again. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Baroness Ashton of Upholland moved Amendment No. 5: Page 3, line 3, leave out paragraph (b) and insert— (b) young people in respect of whom a children's services authority has duties under sections 23C to 24D of the Children Act 1989 (c. 41); and

On Question, amendment agreed to.

The Earl of Northesk moved Amendment No. 6: After Clause 3, insert the following new clause—

"FUNCTIONS OF THE SECRETARY OF STATE AS TO SHARING OF INFORMATION

1. The Secretary of State has the following specific functions in respect of the sharing of information—
1. to draw up and disseminate to the persons and bodies to whom this section applies guidance as to the sharing of information between and amongst themselves;
2. to draw up and disseminate to the persons and bodies to whom this section applies guidance as to the circumstances in which it is appropriate for those persons and bodies to share information between and amongst themselves;
3. to maintain under review the guidance set out in paragraphs (a) and (b) above.
2. In drawing up the guidance set out at subsection (1)(a) and (b) above, and in reviewing such guidance under subsection (1)(c) the Secretary of State shall consult with—
1. the Children's Commissioner;
2. the Information Commissioner;
3. such other interested persons and bodies with statutory responsibility for children as the Children's Commissioner sees fit.
3. The guidance under subsection (1)(a) and (b) above shall in particular make provision—
1. as to the nature of the information that, in the circumstances of the case, must or may be shared;
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2. as to procedures designed to ensure the accuracy and security of information shared;
3. as to procedures designed to ensure, where appropriate, the co-ordination of the sharing of information between and amongst relevant agencies and persons;
4. as to procedures designed to govern the circumstances in which information can be lawfully shared notwithstanding any rule of law which prohibits or restricts the disclosure of information;
5. as to procedures designed to guarantee, as appropriate, the rights of data subjects in respect of any information about them that may be shared;
6. as to procedures designed to govern the period for which it is appropriate that information should be shared and to ensure appropriate deletion of any information shared in compliance with the Data Protection Principles.
4. This section applies to the persons and bodies identified at section 7(1) and any agencies, companies or individuals who may be contracted to work for them or to supply goods and services to them.
5. The information for which provision may be made under this section may include—
1. information as to services provided to, or activities carried out in relation to, an individual child to whom arrangements referred to in section 8(1) relate; and
2. information which gives reasonable cause to suspect that a child is suffering or is likely to suffer significant harm.
6. The Secretary of State may by regulations subject to affirmative resolutions in each House of Parliament, proscribe and penalise contravention of any guidance under this section as to the collection, sharing, use, holding and disclosure of information."

The noble Earl said

My Lords, at the outset, I offer my sincere thanks to the Minister for meeting me and my noble friend Lord Campbell yesterday. I can only hope that she found the occasion as fruitful and helpful as we did. Indeed, on the basis of our discussion, we have redrafted our amendment in an attempt to seek common ground with the Government's position. I will turn to that matter in due course.

First, for the sake of clarity, I will explain our principal objective in the amendment, namely to make provision for legally effective and enforceable statutory guidance in respect of the sharing of information among and between agencies working with children. We should be under no illusions as to the importance of that. It has been a recurrent theme in recent years. Sir Ronald Waterhouse's report Lost in Care states: Guidance is required to social services departments and police forces now in relation to…the sharing of information generally for criminal investigation and child protection purposes". Paragraph 23 of the introduction to Sir Michael Bichard's inquiry report states: I suggest … that better guidance is needed on the collection, retention, deletion, use and sharing of information, so that police officers, social workers and other professionals can feel more confident in using information properly".

Clearly, there is an urgent requirement for improved systems to facilitate the sharing of information. That was the case four and a half years ago when the Lost in Care report was published; and it continues to be the case now. I concede that the Government have sought to strengthen the guidance in the intervening period and have come forward with the Bill. None the less, as evidenced by the Richard report, the problems associated with information sharing continue to be deeply acute.

The Government's preferred solution to that conundrum, referred to by the noble Lord, Lord Laming, as "an organisational malaise", is at least in part what is now Clause 9. It is important to recognise that our amendment is complementary, rather than antagonistic to this provision. Certainly, it does not in any way proscribe the use of databases. Indeed, in many respects, notably subsections (3)(e) and (3)(f), it implicitly promotes them. Moreover, the insertion of the amendment would go a long way to allaying most, if not all, of my concerns about Clause 9.

As I have consistently said, it is crucial to draw the distinction between the practical and technical problem of what sort of mechanisms should be put in place to ensure the appropriate recording of information about children and the cultural problem of how to ensure that the sharing of information—actually talking and communicating—is to be established between the various bodies, agencies and persons concerned with children's welfare. In my judgment Clause 9 is aimed at the first, but not the second. To that extent it is limited in scope, and our amendment would plug the gap.

In addition, while I pay due tribute to the Minister for striving to draw some of the sting of the original drafting of Clause 9, I continue to have deep-seated reservations about it, not least in respect of its potential cost-effectiveness, let alone whether it will actually inspire better and more co-ordinated sharing of information. More fundamentally, in the absence of any meaningful provision for enforcement in its drafting, I would be very hesitant about the prospect of it standing part of the Bill without the buttress of our amendment to qualify it.

I am also aware of certain misgivings about the original structure of our amendment, particularly the way in which it may have conferred too much responsibility and power on the commissioner. Indeed, the Minister expressed that as a concern at our meeting yesterday. In response, we have recast the amendment, so that the Secretary of State has the responsibility of preparing the relevant guidance in consultation with the commissioner and the other consultees listed in subsection (2), rather than the other way round. I should explain that, in the first instance, we felt that in so far as the commissioner is intended to be a children's champion—a point that the noble Baroness reinforced again today—it was more appropriate for him or her to have, as it were, ownership of the guidance, as a means of ensuring that it would be prepared from the perspective of children. In the event, the point is adequately covered in our redraft, on the basis that the commissioner is one of the consultees listed in subsection (2). Moreover, in terms of one of our primary aims for the amendment—giving legal effect to the guidance—there are not inconsiderable advantages in the Secretary of State being responsible for its preparation. I should acknowledge the view of the Minister that no single measure will address all the problems and difficulties associated with the sharing of information. What is required is a kaleidoscope of appropriate measures. I agree with that. Indeed, it should be self-evident that this has been part of the inspiration for our amendment and that we see it as a crucial element of this kaleidoscope.

I hope that I do not misrepresent the position of the noble Baroness here if I say that in reality she and the Government support what we are trying to achieve, but there may be residual nervousness about our drafting. With that in mind, I wonder whether, even if the noble Baroness cannot accept the amendment as it stands, she might be prepared to give an undertaking that the Government would be prepared to revisit the issue as the Bill goes through another place.

I also suspect that the Minister shares my view that for too long inter- and intra-agency guidance on the sharing of information in the field of child welfare has been too disparate, almost to the point of incoherence. That has acted as a spur to our efforts to draft the amendment. It is a regrettable but inescapable fact that in so far as we rely on the current themes in the report of Sir Ronald Waterhouse, the noble Lord, Lord Laming, and of Sir Michael Bichard, there continues to be a gap here. As I say, our aim is to draw the guidance together into a coherent whole and with legal effect, as a means of facilitating the appropriate sharing of information by professionals in the field and of instilling an improved culture of information sharing.

I close with this thought. The Government's response to Sir Ronald Waterhouse's report states: The Government is determined to learn the lessons contained in Lost in Care. We must use it as a catalyst for meaningful and radical change in children's services. I applaud that sentiment. Moreover, I hope that the Minister might feel able to offer some sympathy to our proposition in order to back it up. I beg to move.

Lord Laming

My Lords, I strongly support the general thrust of the amendment so ably outlined by the noble Earl, Lord Northesk. I am particularly grateful that he and his co-supporters have recast the amendment to meet some of the concerns expressed at an earlier stage of the proceedings.

The sharing of information is crucial and complex. It is important that as the Bill progresses towards becoming an Act it strikes the right note to ensure that the way in which information is shared commands the support not only of the general public, parents, children and young people but of the many professional people in the different organisation who will have responsibility in this field.

I believe that great progress has been made. Like other Members of the House, I was very impressed by the meetings we had with those carrying out pathfinding work in this area. I hope that the House will support the thrust of this amendment and that as the Bill progresses the amendment will be reshaped. In other words, I hope that the House will support the thrust of the amendment without signing up to the exact wording. I hope that is not too disappointing or too confusing.

Lord Campbell of Alloway

My Lords, the purpose of this speech is to seek to establish at this stage common ground on two assumptions. The first is that another place shall restore Clause 2 and not accept the amendments to it. The second assumption is that Clause 9, which is declaratory and supplemental to this amendment, shall stand part, if Amendment No. 6 commends itself in principle.

On that basis and on those assumptions, there are four matters of fundamental principle on which I seek common ground. The first is that the respective functions of the Children's Commissioner and of the Secretary of State should be clearly defined on the face of any clause. Secondly, on sharing information, the Secretary of State should have functions relating to the drawing up of guidance in consultation with the Children's Commissioner. Thirdly, the parameters and purposes of such guidance should be clearly defined in the Bill. Lastly, the Secretary of State should be enabled to make regulations to proscribe and penalise the contravention of any such guidance—in other words, the trigger clause of the Bill for secondary legislation.

If such be common ground, the fly in the ointment is the drafting, for which I take total responsibility. A parliamentary draftsman who had the requisite expertise could remove the fly from the ointment before the Bill reaches another place. In such circumstances, if the Minister could give a wholly satisfactory undertaking, there would be no need to divide on this amendment, and the House would no doubt wish to accept the undertaking.

My noble friend Lord Northesk will attend with unusual care to what the noble Baroness may say in the hope of not having to divide your Lordships' House.

2.30 p.m.

The Countess of Mar

My Lords, I have added my name to this amendment because for many years the noble Earl, Lord Northesk, and I have discussed my concerns about mothers, in the main, who have had the wrong information entered into the current Samson computer. The noble Baroness knows that I have asked many times why it is that false information cannot be expunged from that computer, and I have been given a variety of reasons in response.

The amendment covers many of my concerns, especially about the accuracy and security of information to be shared, as well as the appropriate deletion of information shared in compliance with data protection principles. It will give a great deal of hope to many people. I should say that I have received many letters from mothers who have been falsely accused of Munchausen syndrome by proxy just on the word of someone en passant. That goes on to the record where it remains for ever. Such mothers are never able to work with children again. If we can prevent that happening, I would be absolutely delighted. I recognise that it may be necessary to brush up the amendment a little, but I would be extremely grateful to the Minister if she were prepared to accept it in spirit.

Lord Lester of Herne Hill

My Lords, I have considerable sympathy with the object of the amendment, but I shall be extremely boring and pedantic as a lawyer. I hope that noble Lords will also forgive me for the fact that I have a terrible cold and therefore it is a pain to listen to me at all.

I simply do not understand why it should be a proper function of the Secretary of State to give such guidance rather than the Information Commissioner. Under our data protection legislation, which is comprehensive, the Information Commissioner normally gives guidance to all bodies in all circumstances about how to comply. Therefore it seems strange that one should write very detailed provisions into this Bill, including that the Secretary of State, in consultation with the Children's Commissioner, the Information Commissioner and many other bodies, should give guidance. I may be wrong about that, but I wanted to make the point.

My second point is more substantial than one simply of drafting, and it may be that the noble Lord, Lord Campbell of Alloway, will be able to explain it to me. Turning to subsection (3)(d) of the proposed new clause, I do not understand how the Secretary of State could give guidance, as to procedures designed to govern the circumstances in which information can be lawfully shared notwithstanding any rule of law which prohibits or restricts the disclosure of information. The rules of law which prohibit or restrict the disclosure of information are rules of law. Those rules are embodied in the European directive on data protection and in our data protection legislation. I do not understand how any Secretary of State could effectively lay down guidance that is contrary to rules of law. These points probably can all be answered, but I am puzzled.

Lord Campbell of Alloway

My Lords, I would be delighted to intervene, but we have reached Third Reading and an intervention in response would be complicated and take up much time. Since we are not in Committee, I decline to entertain the intervention.

Earl Howe

My Lords, I should like to add my support to the amendment tabled in the names of my noble friends. It addresses an issue of fundamental importance quite distinct from the debate that we have had about databases and the rules surrounding them. With the arrival of statutory joint working between agencies of many descriptions, governmental and non-governmental, we are entering territory in which one thing is depressingly predictable; that is, huge incertainty as regards what information it is legally permissible for one agency to share with another. There is enormous scope for confusion about what is legal and permissible under the Data Protection Act.

Where a child is at serious risk of harm, there is perhaps less confusion about information sharing—although the Soham case makes me hesitant about saying that. However, if a child is not at risk of immediate or serious harm, what are the rules then? What information is it permissible for a professional to share, and with whom? What principle determines whether information can be shared? The medical profession, to name but one example, is extremely exercised about this.

Equally, I suspect that there are many professionals who have no measurement tool by which to analyse and balance risk. Many are simply not trained to do this kind of thing. One has to ask how they are expected to adhere to the obligations set out in the Bill without some sort of clear guidance, and how can the public be confident that there is a real imperative for such guidance to be followed unless it is laid down in regulations that people have to do so—regulations that will, if necessary, provide the basis for judicial review in the event that they are not followed? Moreover, the procedures that are followed and the interpretation put on the legal duty of co-operation as it relates to information sharing need, as far as possible, to be consistent and uniform throughout the country. Only statutory guidance will achieve this, which is why, with some hesitation, I take issue with the noble Lord, Lord Lester of Herne Hill—which I do not do lightly—in his suggestion that it should be the Information Commissioner who draws up this guidance. If the guidance is to be statutory, a Minister of the Crown should be the one to draw it up.

I believe that my noble friends are to be congratulated on having pinpointed this very important issue and on having pursued it so tenaciously throughout the passage of the Bill. I support them.

Baroness Barker

My Lords, throughout our debates on information sharing, noble Lords who have considered this Bill will know that I have worked quite closely with the noble Earl, Lord Northesk, and the noble Lord, Lord Campbell of Alloway. As I have said on many occasions, I believe that we stand on one side of a line and the noble Baroness stands on the other. We take very different views of the extent to which information sharing should be set within a tight framework.

Both noble Lords are to be congratulated on doing what this Bill singularly fails to achieve in Clause 9, which is to set out coherently and in one place all the points that professionals who need to share information about children need to know and observe. It is quite clear, from all the cases and reports cited by noble Lords, that perhaps more than ever before there is now deep confusion on the part of statutory agencies about exactly what information they may share and how they may do so. I agree with the comment that this matter will have to be returned to when this Bill is sent to another place, and I am sure that it will. However, the issue of information sharing between statutory bodies goes far wider and perhaps should be the subject of a whole new piece of legislation, which I suspect may well happen in the next Parliament. In the mean time, I hope that when the Minister returns to us with the regulations and guidance, having consulted the trailblazers and so forth, they will bear a greater resemblance to the amendment tabled by the noble Earl, Lord Northesk, than to Clause 9.

Baroness Ashton of Upholland

My Lords, I begin by saying to the noble Lord, Lord Lester, that the Information Commissioner has a role in providing general guidance around the Data Protection Act, but the specific guidance in such matters is addressed by the Secretary of State. In this case no one is either right or wrong; it is just different in terms of the guidance we are issuing.

I, too, express my thanks to the noble Earl, Lord Northesk, and the noble Lord, Lord Campbell of Alloway, for their time yesterday. I thought that we had an extremely useful and fruitful discussion around many of these issues. I am extremely grateful to both noble Lords for recasting their amendment.

It will come as no surprise that I do not intend to accept the amendment as it stands, for a number of different reasons. However, I hope that the reasons for which I will not accept it will find favour, particularly with those who tabled the amendment and with all noble Lords who have spoken. I hope one day to stand on the same side of the line as the noble Baroness, Lady Barker. I do not think that there is such a line in the sand—we seek the same thing, but as the noble Baroness, Lady Barker, will know, it is more complex to get there.

I also wish to reassure the noble Countess, Lady Mar, that there is no case information of any kind on the database. I understand the noble Countess's concerns. She has explained them to me and I continue to consider them, but in this context I hope that what I have said is of some assurance.

I am pleased that we have reached the point of recognising that the Secretary of State is responsible for bringing together the guidance. I am also pleased that the importance of the guidance has been well recognised in your Lordships' House in the way in which the amendment has been framed. I am also pleased that we have not lost sight of the role that the commissioner might play in that. Indeed, yesterday we reversed the amendments slightly, because it is important that as the commissioner develops expertise and talks to children and so on, he is able to feed into the guidance what he knows and what he believes to be right. I would want that to be part and parcel of the function. Without imposing an obligation on the commissioner, I would hope that it would be a natural part of the role.

The fundamental fly in the ointment, to borrow the phrase of the noble Lord, Lord Campbell, is that we do not need the amendment for the Secretary of State to issue the guidance that the noble Earl, Lord Howe and the noble Lord, Lord Campbell, seek. Under the Children Act 1989, the powers already exist. The noble Lords will remember that I went off to see the lawyers after we met yesterday to confirm and check. It is right and proper that one of the ways in which we are supported by parliamentary counsel and by legal opinion is by them ensuring that we do not duplicate existing law or make laws that are difficult to interpret. In this case, the 1989 Act already provides the powers.

As noble Lords will know, under Clauses 7, 8 and 9, the Secretary of State can issue guidance to which the recipient must have regard. We are clear that comprehensive statutory guidance is needed for the reasons given by noble Lords and not least because of what the noble Baroness, Lady Barker. said about taking away the lack of certainty around what sort of information should or should not be shared. Being clearer about the ways in which we want people to work together is important. Clarity, as the noble Earl, Lord Howe, said is important if we are to ensure that we safeguard children and protect them well. We must do so effectively and efficiently to ensure that our actions do not lead to the sort of negative outcome about which the noble Countess, Lady Mar, is so concerned.

I can also reassure the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that almost all the issues that are mentioned in the amendment as needing to be supported by guidance will be covered by guidance under our proposals. I am grateful for the suggestions that have been made to me. In relation to (3)(a) in the amendment, we do not think it is right to set out a detailed list of information that practitioners must share because as the noble Lord, Lord Laming, said, we do not want to cut across the important general duty to share information. We might run the risk of information being excluded because people feel that it is not included in a list.

The noble Earl, Lord Howe, talked about the training needs of those involved. It is important that the work to do with guidance, support and information sharing is backed up by the kind of training and support that the professions need. Noble Lords who had the benefit of meeting the Trailblazers may remember that the vast majority of the £1 million given for each project had been spent on training, to very good effect. I do not underestimate for one moment the importance of that in ensuring that things work.

2.45 p.m.

The duties in Clauses 8, 21 and 23 involve an implied responsibility to share information when it is judged to be in the best interests of the child. We want this to be part and parcel of the way in which organisations and the professionals employed in them meet their duty under the clauses. The guidance that we are intending to produce under Clauses 7 and 8 will provide greater clarity on the circumstances under which information may be shared to promote the welfare, safety and well-being of children. We will make it clear how practitioners will be able to share information appropriately in compliance with the data protection principles in the Data Protection Act 1994. As the noble Lord, Lord Lester indicated, the Information Commissioner's guidance will come into play at this point. On the issue of the databases and new Clause 9, we will specify through regulations how they will operate and guidance and directions will set out what practitioners and those managing the databases should and must do. We plan to issue draft guidance in the autumn of this year and the guidance will be available before the duties are commenced next year, assuming that the Bill passes through this House and through another place. It will include guidance on information sharing as well.

We hope that we have covered as noble Lords would wish the areas of information sharing in both the guidance and the regulations, and how the implementation will be undertaken in the context of the training regime.

We are not in favour of regulations that will penalise contravention of the guidance. We want to rely on the traditional application of statutory guidance. We do not think that we should institute a separate regime for information issues. We must ensure that good information sharing practice is embedded in the overall approach to the planning and delivery of services. That is why we intend to cover information sharing in the statutory guidance under Clauses 7 and 8. Good practice in information sharing should be part of the overall good practice in the established inspection framework, and will form part of the professional development for the workforce as a whole. We want to ensure that we disseminate good practice as we identify it and work with professionals in so doing. We also want to ensure that all this is in place. The funding for any databases will be partly based upon whether all of this is in place, to ensure that there is appropriate use of the database.

Our general approach will be to use our existing powers under the Children Act, to use effectively the role of the Children's Commissioner and of the Information Commissioner and to deal with contravention using the Data Protection Act 1994. We want to ensure that statutory guidance is followed in the way in which it has traditionally been followed by professionals who understand its importance and relevance—who know that it cannot be ignored without good reason and good cause. We do not want to specify too rigidly on the face of the Bill the provisions on information sharing for fear of excluding elements of information sharing, which could be dangerous and would certainly be unsatisfactory. We do not want to move away from that principle.

I can say to the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that we are continuing to discuss this area. I have no doubt, though I cannot predict, that it will be discussed in another place. We will continue to keep those who tabled the amendment in touch with what we are doing. As we develop the regulations and guidance we will ensure that noble Lords who have been part of the debate are aware of what is happening. [BARONESS ASHTON OF UPHOLLAND]

We are grateful for the points that have been raised. On the basis that we have covered with legislation, guidance and regulations all of those points, I hope that the noble Lords will feel able to withdraw their amendment.

The Earl of Northesk

My Lords, I am grateful to the Minister for her response. I am also grateful for the support offered by many of your Lordships to the amendment—particularly that offered by the noble Countess, Lady Mar, the noble Baroness, Lady Barker and my noble friends Lord Howe and Lord Campbell. As I must, I pay due heed to the strictures of the noble Lord, Lord Laming. He may rest assured that I draw a great deal of comfort from his support, qualified though it may be. Indeed, I favour his recommendation, namely that the underlying principles of the amendment should be supported on the basis that it would be knocked into shape in another place. Indeed, my noble friend Lord Campbell's remarks followed the same vein. However, it is a source of regret to me that the Minister chose not to pick up on the point.

The Minister assures me that the powers exist already under the Children Act 1989. However, this is the crucial point—the mere existence of the powers has not given rise since 1989 to any improvement to the culture of information sharing.

It strikes me as idiotic to continue to rely on the extant powers when the reports of Sir Ronald Waterhouse, the noble Lord, Lord Laming, and Sir Michael Bichard continue to demonstrate that a problem exists. Moreover, guidance issued under later clauses in the Bill, to our judgment, lack sufficient legal efficacy to ensure that it will be paid attention to.

For those two reasons—and with a deep sense of regret, in truth, because I do not believe that our position is very much removed from that of the Government—I think that I have no option other than to test the opinion of the House.

2.51 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

*Their Lordships divided: Contents, 109; Not-Contents, 122.

Division No. 1
CONTENTS
Addington, L.	Carnegy of Lour, B.
Alderdice, L.	Chadlington, L.
Allenby of Megiddo, V.	Chan, L.
Avebury, L.	Chorley, L.
Barker, B.	Clement-Jones, L.
Beaumont of Whitley, L.	Colwyn, L.
Biffen, L.	Cope of Berkeley, L.
Blatch, B.	Craig of Radley, L.
Bowness, L.	Craigavon, V.
Bradshaw, L.	Crickhowell, L.
Brooke of Sutton Mandeville, L.	Dean of Harptree, L.
Brougham and Vaux, L.	Dholakia, L.
Byford, B.	Dixon-Smith, L.
Campbell of Alloway, L. [Teller]	Dundee, E.

Dykes, L.	Northbourne, L.
Eden of Winton, L.	Northesk, E. [Teller]
Elliott of Morpeth, L.	Northover, B.
Elton, L.	Oakeshott of Seagrove Bay, L.
Falkner of Margravine, B.	Park of Monmouth, B.
Ferrers, E.	Peel, E.
Fowler, L.	Perry of Southwark. B.
Garden, L.	Plummer of St. Marylebone, L.
Geddes, L.	Rawlings, B.
Greaves, L.	Redesdale, L.
Hamwee, B.	Rees, L.
Harris of Richmond, B.	Renton, L.
Hayhoe, L.	Roberts of Llandudno, L.
Hooson, L.	Rodgers of Quarry Bank, L.
Howe, E.	Roper, L.
Howe of Aberavon, L.	Rotherwick, L.
Hylton, L.	Russell-Johnston, L.
Jenkin of Roding, L.	Saatchi, L.
Jopling, L.	Seccombe, B.
King of Bridgwater, L.	Sharp of Guildford, B.
Knight of Collingtree, B.	Shaw of Northstead, L.
Lamont of Lerwick, L.	Shrewsbury, E.
Lawson of Blaby, L.	Shutt of Greetland, L.
Linklater of Butterstone, B.	Skelmersdale, L.
Livsey of Talgarth, L.	Smith of Clifton, L.
Lucas, L.	Steel of Aikwood, L.
McNally, L.	Taverne, L.
Maddock, B.	Tebbit, L.
Mar, C.	Thomas of Gresford, L.
Mar and Kellie, E.	Thomas of Walliswood, B.
Marlesford, L.	Thomson of Monifieth, L.
Masham of Ilton, B.	Tordoff, L.
Mayhew of Twysden, L.	Trenchard, V.
Methuen, L.	Wallace of Saltaire, L.
Miller of Chilthorne Domer, B.	Walmsley, B.
Miller of Hendon, B.	Walpole, L.
Montrose, D.	Wilcox, B.
Mowbray and Stourton, L.	Williams of Crosby, B.
Naseby, L.	Williamson of Horton, L.
Noakes, B.	Windlesham, L.
	Worcester, Bp.

NOT-CONTENTS
Acton, L.	Drayson, L.
Ahmed, L.	Dubs, L.
Amos, B. (Lord President of the Council)	Elder, L.
	Evans of Parkside, L.
Ampthill, L.	Evans of Temple Guiting, L.
Andrews, B.	Falconer of Thoroton, L. (Lord Chancellor)
Archer of Sandwell, L.
Ashton of Upholland, B.	Falkender, B.
Bassam of Brighton, L.	Farrington of Ribbleton, B.
Berkeley, L.	Faulkner of Worcester, L.
Bernstein of Craigweil, L.	Filkin, L.
Billingham, B.	Gale, B.
Blackstone, B.	Gibson of Market Rasen, B.
Bledisloe, V.	Golding. B.
Blood, B.	Goldsmith, L.
Borrie, L.	Gould of Potternewton, B.
Brooke of Alverthorpe, L.	Graham of Edmonton, L.
Brookman, L.	Greengross, B.
Campbell-Savours, L.	Grocott, L. [Teller]
Carter, L.	Harris of Haringey, L.
Christopher, L.	Harrison, L.
Clarke of Hampstead, L.	Hart of Chilton, L.
Clinton-Davis, L.	Hayman, B.
Cohen of Pimlico, B.	Henig, B.
Corbett of Castle Vale, L.	Hilton of Eggardon, B.
Crawley, B.	Hogg of Cumbemauld, L.
Darcy de Knayth, B.	Hollis of Heigham, B.
David, B.	Howarth of Breckland, B.
Davies of Coity, L.	Howells of St. Davids, B.
Davies of Oldham, L. [Teller]	Hoyle, L.
Dean of Thornton-le-Fylde, B.	Hughes of Woodside, L.
Dixon, L.	Hunt of Kings Heath, L.

Irvine of Lairg, L.	Richard, L.
Joffe, L.	Rogan, L.
Jordan, L.	Roll of Ipsden, L.
Judd, L.	Rosser, L.
Kirkhill, L.	Sainsbury of Turville, L.
Laming, L.	Sandwich, E.
Lea of Crondall, L.	Sawyer, L.
Lipsey, L.	Sheldon, L.
Listowel, E.	Simon, V.
Macdonald of Tradeston, L.	Slim, V.
McIntosh of Haringey, L.	Stone of Blackheath, L.
MacKenzie of Culkein, L.	Strabolgi, L.
Mackenzie of Framwellgate, L.	Symons of Vernham Dean, B.
McKenzie of Luton, L.	Temple-Morris, L.
Maginnis of Drumglass, L.	Thornton, B.
Massey of Darwen, B.	Tomlinson, L.
Merlyn-Rees, L.	Triesman, L.
Mitchell, L.	Truscott, L.
Molyneaux of Killead, L.	Tunnicliffe, L.
Morgan of Drefelin, B.	Turner of Camden, B.
Morris of Aberavon, L.	Uddin, B.
Moser, L.	Wall of New Barnet, B.
Ouseley, L.	Warner, L.
Parekh, L.	Watson of Invergowrie, L.
Pitkeathley, B.	Weatherill, L.
Ponsonby of Shulbrede, L.	Whitaker, B.
Prosser, B.	Whitty, L.
Ramsay of Cartvale, B.	Williams of Elvel, L.
Randall of St. Budeaux, L.	Woolmer of Leeds, L.
Rea, L.

[*See col. 1442]

Resolved in the negative, and amendment disagreed to accordingly.

3.1 p.m.

Clause 4 [Inquiries initiated by Commissioner]:

Lord Thomas of Gresford moved Amendment No. 7:

Page 4, line 5, leave out "and Wales"

The noble Lord said

My Lords, I move this amendment for the purpose of replying to the observations of the noble Baroness, Lady Andrews, when we discussed the first group.

She suggested that the amendments that are grouped together in my name and the names of others were defective. If that is so I will not press them to a vote. We will no doubt—both here and in another place—look very carefully at these amendments and at the observations made by the noble Baroness.

She indicated that there was still work going on to resolve the particular issue that has developed between the powers and functions of the Welsh commissioner and the English commissioner. Helpfully, she said that the Welsh commissioner would be the first stop for children in Wales on all issues, devolved or non-devolved. I welcome that.

She also said that the work is considering where the Welsh commissioner should report. I had a feeling that she was suggesting that the English commissioner in non-devolved matters would act as a valve or barrier or conduit between the findings of the Welsh commissioner and the government departments with which he is concerned. A specific example would be the Home Office, where most of the issues are non-devolved. I hope that that is not the situation. We have urged that the Bill should be used to extend the powers of the commissioners in Wales, Scotland and Northern Ireland so that they can investigate, review and report on all matters, regardless of whether they are devolved or non-devolved.

As I have said at earlier stages of the Bill, we should not get tied up in the devolved/non-devolved division. It is nothing to do with the powers of the Welsh commissioner. The Welsh commissioner can act independently if Parliament says that he can, whatever the position between the National Assembly for Wales and Westminster.

If work is continuing along these lines, I ask that these principles be borne in mind. They are, after all, principles to which all parties in the National Assembly ascribe, including the Labour Party, which presumably has some communication with the Labour Government at Westminster. I beg to move.

Baroness Andrews

My Lords, the noble Lord has taken slight advantage of the House at Third Reading. I stand by what I said. I will not pursue it.

Lord Thomas of Gresford

My Lords, as I have indicated, I do not seek to press this to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 5 [Other inquiries held by Commissioner]:

Baroness Howe of Idlicote

moved Amendment No. 9:

Page 4, line 22, leave out "direct" and insert "request"

The noble Baroness said

My Lords the purpose of this amendment is to ensure that the Children's Commissioner has the necessary independence of action: to replace in the Bill the power of the Secretary of State to "direct" the commissioner to carry out a formal inquiry with a power to "request".

Your Lordships will, I am sure, welcome and pay tribute to the Government for the addition of what is now Clause 4 of the Bill. At Report stage the Government conceded very positively that the commissioner must be able to carry out formal inquiries on his or her own initiative. The requirement in Clause 4 to consult the Secretary of State is reasonable. But the Government have resisted removing the power of Ministers to "direct" the commissioner to carry out an inquiry under Clause 5, despite very strong criticism from children and young people, from children's organisations and from noble Lords in all parts of the House.

The supporters of the amendment—there is considerable support from all sides of the House as well as from many children's organisations—argue that ministerial direction in this context is a fundamental violation of independence. Unlike my amendment at Report stage, I am not proposing the deletion of the whole clause—that would probably not be proper—but merely to substitute the word "direction" with "request". My hope remains that in the fullness of time the Government will recognise that Clause 5 is unnecessary and inappropriate. We all of course hope for a close and constructive relationship between the commissioner and Ministers. Within such a relationship—and given the existence of Clause 4—it is plainly possible for the government of the day to encourage the commissioner, both informally and formally, to carry out formal inquiries which are in line with the office's general function.

So in effect the only purpose now of Clause 5 is to enable the Secretary of State to force the commissioner to undertake a formal inquiry when it is not perceived by the commissioner to be a priority in the light of the general function of the office.

The commissioner will inevitably have limited resources and it seems wrong that a Minister should be able in this way to impose on the office one or more very substantial inquiries when these may not, in the eyes of the commissioner, form an appropriate and necessary priority. Even if, as Ministers have suggested, additional funds come with such a direction—which can by no means regarded as a certainty—the demands on the commissioner's own time, on human resources, would be enormous.

The power of the Secretary of State to "direct" the commissioner in this way was highlighted as of particular concern in the letter sent by the president of the European Network of Ombudspeople for Children to the Joint Committee on Human Rights. It is plainly incompatible with the standards adopted by the UN General Assembly for independent human rights institutions and with the standards developed by ENOC. None of the ombudsman-like offices established for children across the UK and Europe can be directed in this way.

The Government have made much of the views of children being one of the foundations for the Bill and the design of the commissioner. Those of us who have met children and young people to discuss the proposal for a commissioner will know that their greatest concern is that the commissioner should be a powerful and independent champion. Clause 5—symbolically and in fact—contradicts that necessary independence. This power to direct the commissioner has been of particular concern to the many organisations that have come together to campaign for a powerful and independent commissioner which the Government also want.

I hope that the Minister will be able to accept what is proposed in the amendment. I beg to move.

Baroness Walmsley

My Lords, I vehemently support this amendment. In the months during which we have been considering the Bill in your Lordships' House—many of whose measures are very welcome many of us have talked to hundreds of young people in various contexts. The common factor in relation to the commissioner's powers and functions that I have heard from right across the board is that young people want him or her to be powerful and independent of government. So if we are genuinely to listen to children, it is fundamental that the commissioner should be as independent of Government as the other commissioners in the UK and other parts of Europe who do their job in the interests of children so very well. It really is a vital part of the changes and improvements that we are trying to make to the powers and functions of the commissioner. I urge your Lordships to support the amendment.

Baroness David

My Lords, throughout all the stages of the Bill, I have very strongly supported making the commissioner entirely independent. I therefore support the amendment. It is not appropriate for Ministers to be able to direct an independent champion for children. It is as simple as that.

The Government, who deserve huge credit for bringing forward the proposal for a commissioner for England's children, accepted on Report, as the noble Baroness, Lady Howe, said, that the commissioner must be able to initiate formal inquiries, and added Clause 4 to the Bill. That shows that we have a listening Minister, and I hope that she will also be listening to this amendment.

Clause 4, reasonably enough, requires the commissioner to consult the Secretary of State before initiating an inquiry. The only possible reason for keeping Clause 5 as well as Clause 4 must be to enable the Minister to force the commissioner, against his or her will, to carry out an inquiry in circumstances in which the commissioner has decided it should not be a priority. We must all hope for a positive and collaborative relationship between the commissioner and Ministers, and there will be ample room for Ministers to propose an inquiry. But the relationship must be one of respect for the essential independence of such an office.

The ultimate decision on whether to carry out an inquiry, which would take up a huge amount of the officer's time and resources, must be the commissioner's. The Government have ample powers to establish independent inquiries in other ways. The power of direction is in direct conflict with the concept of an independent commissioner, and we should send the Bill to the other place without it.

Lord Northbourne

My Lords, as a matter of clarification, can the Minister say whether the cost of an inquiry required by the Secretary of State would be met by the Secretary of State?

Earl Howe

My Lords, I do not think I can add to the case that has been very well made already, but it strikes me that the power of direction in this clause looks even more out of place now than it did when the Bill first reached us.

It is not just that the power of direction fetters the commissioner's independence—of course it does, and I am only one of many who thinks that that is wrong and inappropriate—it is that a power of direction really seems pretty pointless now that the commissioner is able to undertake formal inquiries on his own initiative. Are we really to imagine that the commissioner would refuse a request from the Secretary of State to instigate an inquiry? If a request came from that quarter, and there was money to go with it, I cannot envisage the commissioner ignoring it.

Apart from that, as the noble Baroness, Lady David, has said, Ministers already have all kinds of powers in other statutes to set up official inquiries if they choose to do so. Why create a power of direction in this Bill so as to force the Children's Commissioner to take up large amounts of his time doing the Government's bidding? If the matter were that pertinent to his remit, he would be doing it anyway.

I put it to the Minister that the existence of the power looks wrong. I really hope that she will think again about it.

3.15 p.m.

Lord Laming

My Lords, can the Minister give some reassurance on the point raised by the noble Lord, Lord Northbourne? I recognise the arguments that have been well advanced in the House in favour of the amendment. Nobody wishes to have the position of the commissioner compromised in any way. However, it was my hope that in establishing the post of commissioner, one of the benefits would be to avoid further inquiries of the kind and scale of the Victoria Climbié inquiry.

The reality is that when a case such as that comes along, it captures the concern—indeed, the horror—of the nation. The Secretaries of State—there was more than one, in this case—had not only to report to Parliament but to indicate to Parliament that they would take action. They established, under the authority of Parliament, an inquiry. The power of the inquiry meant that there was no fixed budget—the cost of the additional burden of having an inquiry was met 100 per cent.

I recognise the point that we can continue having inquiries of this kind. However, I hope that the Minister might be able to indicate whether the ability of the Secretary of State to give a direction in what would be exceptional circumstances would not only meet the concerns of Parliament and the public in matters of the kind to which I have referred, but, importantly, would also guarantee that a commissioner taking on an important and costly task of this kind would have that guarantee of additional funding. In other words, it would not weaken the commissioner's position to pursue other matters.

Baroness Ashton of Upholland

My Lords, in responding to Amendment No. 9, I should like to speak also to Amendment No. 10.

Amendment No. 10 would remove from Clause 5(5)(a) the words "amend the report" and replace them with the words, make such amendments to the report as are necessary to protect the identity of the child. The amendment would make it clear beyond any doubt that my right honourable friend the Secretary of State may amend a report solely for the purpose of protecting a child's identity, and for no other reason. This has always been the Government's intention, as I have made clear during previous debates in your Lordships' House. None the less, noble Lords expressed concern that the existing wording was not tight enough and could allow the Secretary of State to make more wide-ranging amendments. I am happy to remove any such possibility, however remote.

On Amendment No. 9, I understand everything that noble Lords have said, and the wish to ensure that the commissioner is independent. It is for that reason that we introduced Clause 4, to give the commissioner the autonomy to launch inquiries. I stress that Clause 5, as it stands, does not cut across those autonomous powers.

We hope, and I think that noble Lords would expect, that any such direction power would be used very rarely, if at all, and only as a result of a serious failure in services which the rest of the Bill is aiming to prevent. But there could be such a case. The noble Lord, Lord Laming, raised the case of Victoria Climbié, which could well have been a case where the issue was so serious that it was only appropriate for the commissioner to inquire into it. Setting up the office of Children's Commissioner is an important step. There may be very exceptional circumstances in which the decision will rest with the commissioner.

We do not envisage forcing the commissioner to do something against his or her will. Of course there would be discussion, debate and dialogue before any such direction was issued.

As the noble Lord, Lord Laming, said, when Parliament and the public express horror and concern, as they rightly did over what happened to Victoria Climbié, it is important that the Government are seen to respond on behalf of us all in a strong and measured way. The issuing of a direction is, at least in part for me, symbolic and signifies real gravity. The Secretary of State has given the amendment considerable thought. The word "direct" reflects the gravity and the weight with which the Secretary of State would have wished the inquiry to be undertaken.

I also believe that it is right that the Secretary of State should ensure that there is sufficient money, staff and expertise to carry out such an inquiry. I believe that the essential requirements for conducting such an inquiry, as the noble Lord, Lord Laming, would testify from his own experiences, are linked to the direction. Indeed, those resources would generally be beyond the commissioner's standard resources. That is why we have left it in. There is no desire to move away from independence; we want to give it serious gravitas in those exceptional circumstances and to ensure that such matters are properly resourced. With that clarification, I hope that noble Lords will feel able to withdraw the amendment.

Baroness Howe of Idlicote

My Lords, I thank the Minister for what she has said. I am still quite concerned about a number of issues. As regards the Victoria Climbié case, I cannot imagine any children's commissioner refusing to undertake such an inquiry and for an inquiry simply to be requested would certainly suffice in that respect. I do not regard the word "direct" as being essential for that. Of course, I am glad to hear that without any doubt whatever the funds will follow any request or direction that is made. That is an important reassurance. However, I return to the vitally important issue of the independence of the English Children's Commissioner and the parity of independence with the other commissioners of the United Kingdom. In those circumstances, I would like to test the opinion of the House.

3.22 p.m.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 102; Not-Contents, 112.

Division No. 2
CONTENTS
Addington, L.	Lamont of Lerwick, L.
Alderdice, L.	Lester of Herne Hill, L.
Allenby of Megiddo, V.	Livsey of Talgarth, L.
Ampthill, L.	Lucas, L.
Avebury, L.	Lyell, L.
Barker, B.	McNally, L.
Beaumont of Whitley, L.	Maddock, B.
Biffen, L.	Mar and Kellie, E.
Bradshaw, L.	Marlesford, L.
Brooke of Sutton Mandeville, L.	Mayhew of Twysden, L.
Brougham and Vaux, L.	Methuen, L.
Byford, B.	Molyneaux of Killead, L.
Campbell of Alloway, L.	Monson, L.
Chadlington, L.	Naseby, L.
Chalker of Wallasey, B.	Noakes, B.
Chan, L.	Northbourne, L.
Colwyn, L.	Northesk, E.
Cope of Berkeley, L.	Northover, B.
Courtown, E.	Oakeshott of Seagrove Bay, L.
Craig of Radley, L.	Park of Monmouth, B.
Crickhowell, L.	Peel, E.
David, B.	Plummer of St. Marylebone, L.
Dholakia, L.	Rawlings, B.
Dundee, E.	Redesdale, L.
Dykes, L.	Rees, L.
Eden of Winton, L.	Renton, L.
Elliott of Morpeth, L.	Roberts of Llandudno, L.
Elton, L.	Rodgers of Quarry Bank, L.
Falkner of Margravine, B.	Roper, L.
Ferrers, E.	Russell-Johnston, L.
Fookes, B.	Sharp of Guildford, B.
Fowler, L.	Shaw of Northstead, L.
Garden, L.	Shrewsbury, E.
Gardner of Parkes, B.	Shutt of Greetland, L.
Geddes, L.	Skelmersdale, L.
Glentoran, L.	Slim, V.
Goodhart, L.	Smith of Clifton, L.
Greaves, L.	Steel of Aikwood, L.
Griffiths of Fforestfach, L.	Stern, B.
Hamwee, B.	Stewartby, L.
Harris of Richmond, B.	Taverne, L.
Hayhoe, L.	Tebbit, L.
Higgins, L.	Thomas of Gresford, L.
Hooson, L.	Thomas of Walliswood, B.
Howe, E.	Thomson of Monifieth, L.
Howe of Aberavon, L.	Trenchard, V.
Howe of Idlicote, B. [TellerM]	Wallace of Saltaire, L.
Hylton, L.	Walmsley, B. [Teller]
King of Bridgwater, L.	Weatherill, L.
Kingsland, L.	Williams of Crosby, B.

Williamson of Horton, L.

Windlesham, L.

NOT-CONTENTS
Acton, L.	Hughes of Woodside. L.
Ahmed, L.	Hunt of Kings Heath, L.
Amos, B. (Lord President of the	Irvine of Lairg, L.
Council)	Joffe, L.
Andrews, B.	Jordan, L.
Archer of Sandwell, L.	Kirkhill, L.
Ashton of Upholland. B.	Laird, L.
Bassam of Brighton, L.	Laming, L.
Berkeley, L.	Lea of Crondall, L.
Bernstein of Craigweil, L.	Lipsey, L.
Billingham, B.	Listowel, E.
Blackstone, B.	McIntosh of Haringey, L.
Bledisloe, V.	MacKenzie of Culkein, L.
Borrie, L.	Mackenzie of Framwellgate, L.
Brooke of Alverthorpe, L.	McKenzie of Luton, L.
Brookman, L.	Marsh, L.
Campbell-Savours, L.	Massey of Darwen, B.
Carter, L.	Merlyn-Rees, L.
Christopher, L.	Mitchell, L.
Clarke of Hampstead, L.	Morgan of Drefelin, B.
Clinton-Davis, L.	Morris of Aberavon, L.
Cohen of Pimlico, B.	Moser, L.
Crawley, B.	Ouseley, L.
Darcy de Knayth, B.	Parekh, L.
Davies of Coity, L.	Pitkeathley, B.
Davies of Oldham, L. [Teller]	Ponsonby of Shulbrede, L.
Dean of Thornton-le-Fylde, B.	Prosser, B.
Dixon, L.	Ramsay of Cartvale, B.
Drayson, L.	Randall of St. Budeaux, L.
Dubs, L.	Rendell of Babergh, B.
Elder, L.	Richard, L.
Evans of Parkside, L.	Rogan, L.
Evans of Temple Guiting, L.	Roll of Ipsden, L.
Farrington of Ribbleton, B.	Rosser, L.
Faulkner of Worcester, L.	Sawyer, L.
Filkin, L.	Sheldon, L.
Fitt, L.	Simon, V.
Gale, B.	Stone of Blackheath, L.
Gibson of Market Rasen, B.	Strabolgi, L.
Golding, B.	Symons of Vernham Dean, B.
Goldsmith, L.	Temple-Morris, L.
Gordon of Strathblane, L.	Tomlinson, L.
Gould of Potternewton, B.	Triesman, L.
Graham of Edmonton, L.	Truscott, L.
Greengross, B.	Tunnicliffe, L.
Grocott, L. [Teller]	Turnberg, L.
Harris of Haringey, L.	Turner of Camden, B.
Harrison, L.	Wall of New Barnet, B.
Hart of Chilton, L.	Walpole, L.
Hayman, B.	Warner, L.
Henig, B.	Watson of Invergowrie, L.
Hilton of Eggardon, B.	Whitaker, B.
Hogg of Cumbernauld, L.	Whitty, L.
Howarth of Breckland, B.	Williams of Elvel, L.
Howells of St. Davids, B.	Winston, L.
Howie of Troon, L.	Woolmer of Leeds, L.
Hoyle, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.32 p.m.

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, I have to announce a correction to the figures for the first Division. The number voting "Not content" should have read 121 and not 122.

Baroness Ashton of Upholland

moved Amendment No. 10:

Page 4, line 34, leave out "amend the report" and insert "make such amendments to the report as are necessary to protect the identity of the child"

On Question, amendment agreed to.

[Amendments Nos. 11 and 12 not moved.]

Baroness Walmsley

moved Amendment No. 13:

After Clause 5, insert the following new clause—

"FURTHER ACTION FOLLOWING REPORT BY COMMISSIONER

1. Where the Children's Commissioner has made a report which contains a recommendation as to action to be taken by a relevant body, the Commissioner may by notice require that body to provide the Commissioner within three months of the date of the notice with—
1. such information as will enable the Children's Commissioner to determine whether the body has complied with the recommendation or will be complying with it; or
2. a statement of the body's reason for not complying with the recommendation.
2. A notice under subsection (1) shall include a statement that a failure by the body to respond within the period mentioned in that paragraph may be published in such manner as the Children's Commissioner considers appropriate.
3. If, on receipt of a response from the body, the Children's Commissioner considers that—
1. the action taken or proposed to be taken by the body to comply with the recommendation is inadequate; or
2. the body's reasons for not complying with the recommendation is inadequate,

the Commissioner may send to the body concerned a further notice setting out the inadequacy and requiring the body to reconsider the matter and respond within one month of the date of the notice.

1. A notice under subsection (3) shall include a statement that a failure by the body—
1. to provide what the Children's Commissioner considers to be a satisfactory response; or
2. to provide any response within the period mentioned in that subsection,

may be published in such manner as the Children's Commissioner considers appropriate.

1. The Children's Commissioner shall maintain a register containing details of—
1. recommendations (together with the reasons for them) contained in reports;
2. action taken by the Children's Commissioner under subsections (1) and (3); and
3. the results of any such action.
2. Any register maintained under subsection (5) shall be open to inspection by any person at all reasonable times at the offices of the Children's Commissioner and the Commissioner may make arrangements for copies of the register to be available for inspection in such other place or places or by such other means as he considers appropriate.
3. The Children's Commissioner shall publish those arrangements in such a way as to bring them to the attention of persons likely to be interested."

The noble Baroness said

My Lords, at present there is no requirement on bodies to which the commissioner addresses recommendations to make any kind of response. This new clause enables the commissioner to require a response to his or her recommendations and to publicise any failure to respond. There are, of course, similar provisions in legislation establishing commissioners in Wales and in Northern Ireland.

Responding to the amendment on Report, the Minister said: I appreciate that it is important to look at what happens beyond, and to ensure that things are acted upon. As drafted the amendment would apply to all adult reports, annual reports and any reports of inquiry. There is no disagreement on the principle of what to do. I am not sure whether I agree with the bureaucratic process proposed. Although I recognise that it reflects some of the work on the Northern Ireland commissioner—I do not want to suggest that that was a bureaucratic process—it goes a little further than required".—[Official Report, 17/6/04; cols. 947–8.] The Minister went on to suggest that Parliament and regulatory bodies could follow up the commissioner's recommendations. I am afraid that that misses the point, which is to give the commissioner added authority and ensure that recommendations are taken seriously. Constitutionally independent, unelected commissioners cannot overturn government decisions, but it is reasonable to place formal requirements on such bodies to respond and to provide a process for recording and publicising failure to respond appropriately. Similar provisions apply for the Local Government Commissioner, so why not for the Children's Commissioner?

Another example of a response obligation can be found in the Patients' Forums (Functions) Regulations 2003, which, in paragraph 8, place a duty on the NHS trusts and primary care trusts to respond to reports or recommendations made by a forum and provide for further action where there is no satisfactory response. Although I humorously commented on Report that I was hurt that the Minister should suggest that our solution was bureaucratic, I have tabled the amendment again today in the hope that, given her generally sympathetic remarks, she will be able to reassure the House that a less bureaucratic, but no less effective, solution will be proposed by the Government when the Bill goes to another place. I beg to move.

Earl Howe

My Lords, the main point that I wish emphasise in relation to the amendment was touched on by the noble Baroness, Lady Walmsley; namely, that a requirement to respond to the commissioner's recommendations would give the commissioner a great deal more standing and authority. We had the same kind of debate while discussing patients' forums during the passage on the Health and Social Care (Community Health and Standards) Bill two years ago. When a patients' forum sends a report to a hospital trust, the trust has to reply. The very existence of that duty invests the forum with a great deal more authority than it might otherwise have. As the noble Baroness, Lady Walmsley, said, its recommendations have to be taken seriously. There are further provisions in regulations in case the response received is not satisfactory. While the Minister may look at the amendment and say that it is bureaucratic, as she did last time, this is not actually an exercise in bureaucracy; it is an attempt to give the commissioner some added clout. That cannot be a misplaced aim.

Lord Lester of Herne Hill

My Lords, I shall speak to Amendment No. 47, which stands in my name. It is bizarre that it has been grouped with another amendment with which it has nothing whatever in common. I shall therefore speak about an entirely different matter. The good news is that if the Minister is able to respond at all positively to it in her reply, I shall not move the amendment and so the House will have to listen to me only once.

I raised the issue that is covered by the amendment on Report and received strong support from across the House. Amendment No. 47 would strike a fair balance in relation to the operation of three fundamental rights: first, the right of the public to receive information and opinions published by the Children's Commissioner; secondly, the right of the individual to a good reputation protected against publications made in bad faith or with reckless disregard for the truth of the allegations; and thirdly, the individual's right of access to the courts to vindicate his reputation using defamation law where reports have been made that are unfair or irresponsible.

That balance and sense of proportion are required under the European Convention on Human Rights, as the Strasbourg court made clear in the Fayed case in which I acted as counsel. A fair balance is required also under English law. Thanks to the Human Rights Act 1998, the convention rights involved are part of our law. The questions before the House are twofold. First, what in principle is the nature and scope of the privilege to be accorded to the commissioner? Secondly, does the protection given in Schedule 1 (10) sweep too broadly?

Paragraph 10 of Schedule 1 states: For the purposes of the law of defamation—

1. (a) any statement made by the Children's Commissioner in a report published under this Part has absolute privilege; and
2. (b) any other statement made by the Children's Commissioner or a member of his staff for the purposes of this Part has qualified privilege".

Sub-paragraph (b) is not controversial, though I doubt whether it is necessary. It is well established at common law that, on grounds of public policy, defamation law gives protection to a person, such as the commissioner or his staff, acting in good faith and without an improper motive, who makes an untrue and defamatory statement about an individual in performing his public functions. At common law, the commissioner would have the defence of qualified privilege in communicating to the public information and opinions of legitimate public interest and concern. The defence is available even though the publication contains defamatory false statements, provided that the commissioner has not acted for an improper purpose, or with reckless disregard for the truth, or unfairly. Paragraph (b) makes it clear that this defence of qualified privilege applies to statements by the commissioner or her staff, and that is entirely unobjectionable. But, as it stands, paragraph (a) gives absolute privilege to any statement made by the commissioner in any report under Part 1. According to well established doctrine, absolute privilege applies and should apply only to occasions and reports of high public importance. Where absolute privilege applies, it operates as a complete immunity from libel proceedings, even if the commissioner was actuated by express malice. It completely denies the victim of a defamatory statement the right to vindicate his or her reputation through the legal process.

Because of the high public interest in the due administration of justice, absolute privilege applies, for example, to protect judges, advocates, jury members, witnesses, parties to legal proceedings and reports of court proceedings. It also applies to parliamentary reports and papers, to affairs of state and to some limited statutory instances, where public bodies or officers, such as the Civil Aviation Authority or the Financial Services Authority, perform quasi-judicial or law enforcement functions and are given absolute privilege. The Parliamentary Commissioner for Administration has absolute privilege for her reports to Parliament and other matters relating to her investigations, as part of the protection for parliamentary proceedings and reports. My Amendment No. 47 reflects that position by applying absolute privilege to the commissioner's annual reports to Parliament under Clause 3.

However, paragraph (b) as it stands sweeps much more broadly. It confers an absolute immunity from defamation proceedings for any report made by the commissioner under any provision in Part 1. That includes a report under Clause 2(2)(d), a report under Clause 4(5)(a) or a report under Clause 5(3).

I submit that there is no objective and reasonable justification for such a far-reaching immunity. No such protection is given to the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission, even though they have law enforcement powers that are not vested in the Children's Commissioner. Why should the commissioner be in this absolutely privileged position to harm personal reputations for improper reasons or recklessly with no possibility of legal redress for the victim? The commissioner's reports made under these provisions do not concern parliamentary proceedings, affairs of state, judicial or quasi-judicial functions or law enforcement functions. What we have here are reports on matters relating to the rights, views and interests of children (that is, subsection (2)(d)); or reports of the commissioner's recommendations following an inquiry into a case raising issues of public policy relevant to other children (that is, Clause 4(5)); or a report of an inquiry into an individual case (that is, Clause 5(3)).

By conferring an absolute immunity against defamation proceedings for any of those reports, Parliament would be removing an important incentive for the commissioner to seek to ensure that her or his reports under Part 1 are fair and accurate and not made recklessly or irresponsibly.

The only reason for including such a broad and absolute immunity is not one of principle; it involves matching the immunities conferred upon the Scottish, Northern Irish and Welsh Commissioners. Section 25 of the Commissioner for Children and Young People (Northern Ireland) Order 2003 extends absolute privilege to, publication by the Commissioner or any matter which the Commissioner is required or authorised to publish, under the order. Section 76(7) of the Care Standards Act 2000 provides that the, publication of any matter by the Commissioner [for Wales] in a report is absolutely privileged. Section 15(1) of the Commissioner for Children and Young People (Scotland) Act 2003 confers absolute privilege not only on the commissioner but also on any of the commissioner's staff: first, in conducting an investigation under the Act; secondly, in communicating with any person for the purposes of such an investigation; or, thirdly, in a report published under the Scottish Act.

When those immunities were conferred for the three devolved commissioners, no one apparently considered whether they were compatible with the European convention or the Human Rights Act. There was an attempt to check but the main issue was not thought about; that appears to be the position. In my view, it is very strongly arguable that those immunities are not necessary and proportionate in the context of Scotland, Wales or Northern Ireland, and would not pass muster in the event of a legal challenge under the Human Rights Act or the convention.

That fact that unnecessary and disproportionate absolute immunities have been given to the Scottish, Welsh and Northern Irish commissioners does not make the legislation compatible, or justify our following this model in the present Bill. I look forward to the Minister's explanation as to the justification for such a sweepingly broad absolute immunity.

The Joint Committee on Human Rights, of which I am a member, is yet to report on the Bill. It will do so when it leaves this House, and its report on this issue—I cannot say what the report will contain—may be influential one way or the other. As I said, speaking entirely for myself, I would be surprised if the absolute immunities would pass muster if challenged in the courts. Qualified privilege is surely sufficient, except for parliamentary proceedings and, as I have said, it will provide an important incentive for fair and responsible reporting by the commissioner. In other words, there is a lack of proportionality in this regard and the absolute immunity is not carefully tailored to the commissioners' wholly legitimate needs in performing his or her important public functions.

3.45 p.m.

Baroness David

My Lords, I return to Amendment No. 13, which I strongly support, as I have done at previous stages. It was good to hear the Minister say on Report that she accepted the principle. I hope that we will hear that acceptance of the principle turns into acceptance of the provision.

Recommendations from the commissioners in Wales and Northern Ireland must be taken seriously because of similar provisions in the legislation establishing their posts. Why not have a similar arrangement in England? The Minister also suggested that Parliament and government departments would need to ensure that commissioners' recommendations were taken seriously. But that is beside the point and assumes that they are on the same side as the commissioner, which inevitably they sometimes may not be. These are entirely appropriate powers for an independent champion for children and I hope that the Government will agree to them.

Lord Elton

My Lords, when the Minister replies to the noble Lord, Lord Lester, will she please bear in mind the great vulnerability of workers in this field and the existing law? We must ensure that they have some remedy when there is a miscarriage of judgment by the reporting person.

Lord Hylton

My Lords, I rise to support Amendment No. 13, which appears to give some teeth to reports by the Children's Commissioner and will, I hope, ensure that his recommendations do not remain so much paper that is simply disregarded by all concerned. On those grounds, I hope that the amendment commends itself to the Government.

Lord Laming

My Lords, like the noble Lord, Lord Lester, I have difficulties with the fact that Amendments Nos. 13 and 47 have been grouped together. They do not bear much relation to each other. I completely support Amendment No. 47, which was proposed very ably indeed by the noble Lord, Lord Lester. As the House knows, at an earlier stage I raised doubts about giving absolute privilege to the commissioner. All that the noble Lord said simply reinforces my belief that giving absolute privilege should be done only in exceptional circumstances. The case has not been made at all for the commissioner for England.

Lord Northbourne

My Lords, I want briefly to support the noble Lord, Lord Lester of Herne Hill. I listened with interest and alarm as he outlined the scenario. We already have sufficient problems with people—including parents—working with children who feel under threat of being sued for one reason or another. The commissioner's ability to make totally irresponsible statements—he may not do so, but he might—is yet another threat to those people who mean well and who want to work with children but who are becoming increasingly frightened of doing so.

Baroness Howarth of Breckland

My Lords, I support the amendment moved by the noble Baroness, Lady Walmsley. It is crucial that the commissioner receives responses to the recommendations that he or she makes. When we have a Minister like the noble Baroness, Lady Ashton, where reasonableness seems to prevail, we forget that situations can become unreasonable. The statute or regulation should be clear about setting expectations for all situations.

Baroness Ashton of Upholland

My Lords, I understand that the reason these two amendments are yoked together, as I think the noble Lord, Lord Lester, put it, is that they address the broad issue—we can believe this or not—of the commissioner's authority and freedom to act in order to help achieve change. I hope that that has enlightened noble Lords.

Amendment No. 13 has found a great deal of support in the House. As the noble Baroness, Lady Walmsley, indicated, it is a replica of the amendment that was tabled on Report. I stand by what I said then: in principle, I have a great deal of sympathy with what the noble Baroness sought to do, but I feel the measure constituted an over-bureaucratic process. I am sorry to see it back for that reason alone.

I shall not reiterate all the points that I made at previous stages about the importance of the commissioner being able to use other means, not least publicity and embarrassment to ensure that people respond. However, I understand the issues that have been raised. My right honourable friend the Minister of State for Children, Young People and Families has asked me to inform your Lordships that she is considering this issue. She will consider whether we need to make further provision regarding this matter and is minded to consider introducing an amendment in another place to take it forward. I shall endeavour to ensure that all noble Lords who have taken part in this debate are kept in touch with her deliberations. It will be a different amendment as she does not want to go so far as the noble Baroness in terms of bureaucracy, although I know that that is not what the noble Baroness sought. I shall keep noble Lords informed on that matter. I do not have final confirmation of what the measure might look like, but it is her intention to introduce such a provision in another place. I hope that it will address noble Lords' concerns and that they will feel able to withdraw the amendment.

Amendment No. 47 was ably spoken to by the noble Lord, Lord Lester. It would take away the protection of absolute privilege that we brought in. Noble Lords will remember that I introduced a government amendment in response to concerns raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Byford, who felt that the commissioner should be free to carry out his duties without the fear of having to spend time and resources defending himself in lawsuits. As noble Lords have indicated, irrespective of whether they supported the measure, we need to ensure balance regarding the way in which the different commissioners operate. Noble Lords have made it clear that they want to see that balance as regards other aspects of the Bill. However, the noble Lords, Lord Lester and Lord Laming, and the noble Lord, Lord Campbell of Alloway, who is not present, expressed reservations about that. We all want the commissioner to be independent and to act fairly in an inquiry. I believe that we are also searching for ways to ensure that the commissioner is not deterred from taking action due to fear of a defamation case. That is why we considered it important to grant absolute privilege to statements made by the commissioner in inquiry reports. We considered that that met a legitimate aim.

The noble Lord, Lord Lester, cited the Fayed case in the European Court of Human Rights. I have a copy of the Fayed judgment. I wish to quote a tiny part of it: The defence of privilege of immunity in defamation cases rests upon the idea that conduct which would otherwise be actionable escapes liability because the defendant is acting in furtherance of some interest of social importance which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. If the interest is one of paramount importance, considerations of policy may require that the defendant's immunity for false statements be absolute without regard to his purpose or motive for the reasonableness of his conduct". Having said that, we are concerned—

Lord Lester of Herne Hill

My Lords, I am very grateful. I think I am also right in saying that they went on to say that that was a case where the Secretary of State had an absolute privilege when he damnified Mr Al Fayed—indeed, he was disqualified as a director. But did not the court also say that any restriction on the right of access to courts in a context of defamation had to be proportionate, had to meet the test of necessity and that it should not sweep too broadly?

Baroness Ashton of Upholland

My Lords, indeed. The noble Lord will know that far better than I. It is always dangerous to quote a case in which any noble Lord is involved. My point in quoting that extract was not to detract from what the court said later but to extend our consideration of how best we ensure that the commissioner is able to carry out his functions. We are concerned by the anxiety expressed on the matter by a number of noble Lords, not least the noble Lord, Lord Lester. That convinces me that we need to reconsider the matter carefully.

Some noble Lords will be aware that the Department for Constitutional Affairs is consulting on proposals for conducting effective inquiries, including the level of protection needed by inquiry panels to enable them to act freely for the purposes of the inquiry. I understand that that consultation will close at the end of July. I want to consider the matter in relation to the outcome of that consultation. Yesterday, members of my department's legal team spoke to members of the legal team of the Department for Constitutional Affairs. They discussed what we might do following the consultation. We want to consider the outcome of the consultation, to consider further not least the Fayed case but also the other issues that have been raised and to make any necessary amendments when the Bill is debated in another place. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Walmsley

My Lords, I thank noble Lords who supported the amendment. I also thank the Minister for her response.

I found one of her comments quite extraordinary. She suggested that in order to ensure that something happens as the result of recommendations that he or she makes, the commissioner might use publicity and embarrassment. In other areas of child protection, we do not believe that publicity and embarrassment are sufficient deterrents. We rely on the full weight of statute in those areas. Therefore, I particularly welcomed the Minister's reassurance that her colleague in another place will bring forward a measure to ensure that people have to respond appropriately to the commissioner's recommendations.

Baroness Ashton of Upholland

My Lords, I should not want the noble Baroness to think for one moment that I was trying to suggest that publicity and embarrassment are sufficient deterrents in the area of child protection. I referred to those factors in terms of making agencies respond. The noble Baroness is absolutely right on that point.

Baroness Walmsley

My Lords, I am very grateful for those comments. It can be a part of getting people to respond, but it is certainly not enough. That is why I await with great interest the measure that the Minister in another place will bring forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Relationship with other Commissioners]:

Baroness Ashton of Upholland

moved Amendment No. 14:

Page 5, line 9, leave out subsections (1) and (2).

On Question, amendment agreed to.

The Deputy Speaker

My Lords, before I call Amendment No. 15, I have to inform the House that if this amendment were to be agreed to, I would not be able to call Amendments Nos. 16 and 17.

[Amendment No. 15 not moved.]

Baroness Ashton of Upholland

moved Amendment No. 16:

Page 5, line 30, leave out from second "to" to end of line 31 and insert—

1. " any matter falling within the remit of the Children's Commissioner for Wales under section 72B, 73 or 74 of the Care Standards Act 2000 (c. 14) in relation to children to whom Part 5 of that Act applies;
2. any matter relating to children in Scotland which is not a reserved matter (within the meaning of the Scotland Act 1998 (c. 46)); or
3. any matter relating to children in Northern Ireland which is a transferred or reserved matter (within the meaning of the Northern Ireland Act 1998 (c. 47))."

On Question, amendment agreed to.

Baroness Ashton of Upholland

moved Amendment No. 17:

Page 5, line 34, leave out "(1)(a) to (c)" and insert "(3)(a) to (c)"

On Question, amendment agreed to.

Clause 7 [Co-operation to improve well-being]:

Lord Northbourne

moved Amendment No. 18:

Page 6, line 6, at end insert— () the provision of a secure and supportive home environment;"

The noble Lord said

My Lords, these amendments relate to the list of five objectives that originally appeared in both Clause 2 and Clause 7 but now remain only in Clause 7(2). Because of the importance of the issues, I have to take a few minutes of the House's time to set out the background.

In Committee, there was an extensive debate on amendments tabled by the noble Lord, Lord Lucas, and myself, which would have included—alas, the noble Lord, Lord Lucas, is no longer in his place—the family or family life as an additional objective in this list.

T

here was very strong support from both sides of the House for there being some reference to the importance of family life at this point in the Bill, as shown at cols. 1089–96 of the Official Report for 4 May. The noble Baroness rejected all that pressure on the grounds that the five objectives were cast in stone because they were derived from the wishes of children, as expressed during the consultations that the Government held before publicising the Bill.

4 p.m.

I have carefully studied the reports of those consultations, and of the research project by the Children and Young People's Unit. In those consultations, children were not asked directly whether the quality of their family life was important to them or had a high priority in their lives. However, out of the nine questions that they were asked, two—questions 4 and 7—related to families. The children's replies show clearly what a high priority they place on families and family life and support. The research project carried out by the CYPU also strongly and repeatedly confirmed the high priority placed by child and adult consultees on the value of family life. The question is why those aspects of children's replies were ignored by the Government when they drafted the five objectives that we find in Clause 7(2).

In a recent letter to the noble Earl, Lord Howe, which was copied to me, the noble Baroness explained that after careful consideration the Government had decided to write the Bill in terms of objectives rather than processes. I entirely support that decision. However, it emphasises the importance of getting the objectives right. That is particularly the case because, no fewer than twice in her reply in Committee, she described the five objectives as the definition of well-being. We all know that, when a list is included in legislation, the courts assume that things left out are excluded. The list is therefore very important. It defines, for the purposes of the law, the well-being of children. It would be serious if stability, security and home life were excluded from the definition of children's well-being. It would be even more serious if emotional well-being were excluded.

In the noble Baroness's letter to the noble Earl, she tells us that the Government regard family life as part of the process, rather than as an objective or good in itself. The reality is that family life is both a process and an objective. The quality of family life is an objective in itself, because it affects not only the child's future chances in life, but also its happiness and well-being while it is a child.

I am guessing, but I believe that the Government are so reluctant to include a reference to family life among the objectives of the Bill for a political reason. They are rightly reluctant to seem to suggest interference in private family life. I respect that concern, although I believe that supporting family life need not be intrusive, provided that it is based on listening to what families, children and parents want rather than imposing solutions on them. I respect the Government's concerns, and have therefore crafted the two amendments. They go some way towards addressing two of the most important aspects of a child's well-being that family life normally delivers. Neither mentions "family" or "family life". I hope that the noble Baroness will be grateful for that change in the direction of my amendment.

Amendment No. 18 would introduce the additional objective of, the provision of a secure and supportive home environment. That is a key good for all children, especially young children, so should be one of the objectives that defines the welfare of children in the Bill. Amendment No. 19 would add "emotional" well-being to the list of well-beings in Clause 7(2)(e). It may be the most important well-being of all for children. It affects their current life as children, their ability to relate to others, and their prospects for the future. To say that it should be excluded because it is simply part of the process is as absurd as saying that health should be excluded because it is also part of the process, which it is. Emotional well-being is a good in itself for children, and should be included in the definition of targets for children's well-being in the Bill.

I have had a great deal of support from both sides of the House for the amendment, and I regard it as particularly important. I beg to move.

Baroness Howe of Idlicote

My Lords, I support the amendment. I have already mentioned the report, Aim High: Stay Real, which clearly underlines the importance that children give to a secure and happy home environment. The amendment is a way of emphasising that in the Bill. I differ slightly from my noble friend in not thinking that the motives of the noble Baroness are political. If they are, it is with only a small "p". There is recognition of the importance of family.

Lord Northbourne

My Lords, I accept the small "p".

Baroness Howe of Idlicote

My Lords, it is important to get the two matters into the list in the Bill of what a child would aim to have for itself. I emphasise emotional as well as social and economic well-being. It would give much greater weight to everything that needs to be rounded for children to come through into adulthood successfully.

The one real area that, sadly, illustrates the importance of what we are trying to achieve here is that which concerns the most deprived children and also looked-after children—an area that I am sure we shall come to in a later amendment. Again and again, there is evidence of a disturbed background and a lack of emotional well-being. As a result of that, again and again other aspects of the "wished-for" inclusion that the Government and all of us in this House would like to see fail. Therefore, I support my noble friend's amendment.

Lord Chan

My Lords, I also support my noble friend's amendment. I remind noble Lords that the Government have invested a great deal of resources in, for example, Sure Start. That particularly important investment provides a secure and supportive home environment. Therefore, it seems a pity not to mention it clearly here. As we begin to see the benefits of the Sure Start programme, we see that it also strengthens the emotional well-being of children. Therefore, I should have thought that it would be an advantage if all that were spelt out on the face of the Bill.

Lord Elton

My Lords, having followed the debate on this matter only at a distance through circumstances beyond my control, I speak with great diffidence and briefly. However, the omission of the mention of "family" from a Bill of this kind and from a part of the Bill of such critical importance is little short of astonishing. Therefore, I endorse everything that the noble Lord, Lord Northbourne, said about the desirability of its inclusion.

It is not possible to argue that what he is advocating is a process and that it should be excluded on that basis because education, which is included, is also—I believe unarguably—a process. Therefore, that argument fails.

The purpose of putting the "family", or the "supportive home environment", as it is now being expressed, on the face of the Bill is not merely to emphasise its overall importance; surely it is also to prevent the pursuit of other objectives at the expense of that objective. If that objective is excluded, other objectives will take precedence over it and it will be possible to pursue physical health or recreation in a way that militates against a supportive and secure home environment.

I would say much the same about "emotional well-being". If we are trying to describe what we wish to achieve for a child, and that is how the Minister recently described these paragraphs, the description must surely include the most secure home life possible and the most secure emotional well-being possible. Therefore, it is difficult to see on what grounds the noble Baroness will try to resist the amendments. I shall listen with great interest and, if she does so, I shall be disposed to follow the noble Lord, Lord Northbourne, through the Lobby.

Baroness Sharp of Guildford

My Lords, from these Benches I give our support to the two amendments tabled by the noble Lord, Lord Northbourne. In earlier discussions on the same issue, the Minister made it clear that in the list in Clause 7(2) the Government were trying to distil the results of the consultations that took place with children about what they felt was good about their well-being. Certainly, one issue that came out of those consultations was a sense of security. It seems that an attempt has been made to capture that within the context of this subsection by the use of the words, protection from harm and neglect, and, social and economic well-being. But neither really captures the sense of security within the family or the sense of a secure environment. I believe that that is the great advantage of including within the list the wording proposed by the noble Lord, Lord Northbourne.

For exactly the same reason, I think that adding the word "emotional" to "social and economic well-being" so that it reads, emotional, social and economic well-being, has a great deal to be said for it. I think that it reflects what the children wanted, and I urge the Minister to be persuaded by these arguments.

Lord Lucas

My Lords, it is unarguable that "home environment" and "emotional well-being" are vitally important for the well-being of children and, indeed, they come first in the list that a child will put if asked these questions in a straightforward way. Surely the difficulty arises from the question: are they things that the authorities should be promoting or things in which they should be involving themselves? I think that that was answered by the noble Lord, Lord Chan. What else is Sure Start?

I do not know how the noble Baroness spends her Wednesday evenings, but I would thoroughly recommend that she watches "Supernanny", which is a most extraordinary programme on Channel 4. It starts off with total chaos in a household, and with a little intervention, all is happiness and peace, which is just technique. It is astonishing to see the transformation. That is just the kind of parenting education which the noble Lord, Lord Northbourne, has been advocating for many years, and which should be provided by local authorities.

We live in such isolated little families now that we have no access to those sort of skills. We do not even know that they exist. We think that what we are doing is the best that can be done. The provision of that sort of resource by authorities should be central to what they do. That is, to my mind, what the noble Lord's amendments would achieve.

4.15 p.m.

Lord Dearing

My Lords, I had not intended to take part in the debates on the Bill and apologise for intervening at this late stage. However, the emotional wellbeing of a child is so central that I felt compelled to raise my voice in support of the noble Lord, Lord Northbourne. The ability of a child to love and to accept love, to have compassion and empathy and to cope with anger and fear is absolutely central to the development of that human being, especially for looked-after children who face so many handicaps. I think that it is right that we should press this issue. I have not referred to home life, but it is in the framework of the home that those emotions are nourished and developed.

Earl Howe

My Lords, the arguments in favour of the amendments have been extremely well put and I shall be brief, but I want to support them very warmly. It seems to me that the noble Lord, Lord Northbourne, in his Amendment No. 19, has encapsulated a very important concept that is not encapsulated elsewhere in the subsection.

Emotional well-being is surely quite distinct from mental health and social well-being. It is different from protection from harm and neglect, which is a negative, not a positive, concept. If there has to be a choice between the noble Lord's two amendments, Amendments Nos. 18 and 19, I prefer Amendment No. 19, first, because it is neater and, secondly, because it is an outcome which does not in any way presuppose any kind of official intrusion into the home. That is not, I am sure, what the noble Lord wants to see but it could be thought to be a consequence of making the provision of a secure and supportive home environment a specific target for local authorities and their partners. With that mild caveat, I hope that the Minister will be receptive to these amendments.

Lord Laming

My Lords, the noble Lord, Lord Northbourne, deserves the congratulations of the House on the way in which he has concentrated our minds on the importance of family in the well-being of children. The difficulty that I suspect many of us have—this certainly applies to me—is that when I read a draft Bill I read into it things which I assume everyone else reads into it, and obviously that may not be right. So, when I think of something which improves the well-being of children, I automatically think of the family, because the family is the basis from which the well-being of children springs. Therefore, I assume things that perhaps, given the experience of the noble Lord, Lord Northbourne, I would have been better not to have assumed.

It seems to me that the House is in support of the thrust of the amendments. I am sure that we all agree, first, on the importance of the family and, secondly, on the importance of wellbeing of children.

Baroness Ashton of Upholland

My Lords, I am grateful to all noble Lords who have spoken, particularly to the noble Lord, Lord Northbourne, for introducing these important debates. I shall begin by saying a few words about Amendment No. 18. Noble Lords will not be surprised that I start from a slightly different viewpoint. In seeking to do everything we have done around the Bill we have tried to involve children in the most appropriate way. Clearly, for some noble Lords that has not been enough. However, we really do feel that we have tried to base a lot of our work on what we believe is the right approach, having talked to children and those involved with children, in different ways.

I understand that the noble Lord wants to see a new outcome; that is, the provision of a secure and supportive home environment. I reiterate what was said by the noble Baroness, Lady Howarth, really on my behalf, that there is no political motivation in this, not even with a small "p". It matters hugely that children have the kind of secure environment, preferably with their family but if not, provided by those who can, that enables them to be nurtured and to grow. Everyone involved in the Government, and even in your Lordships' House, would support that. The question is, where do you put the provision? As I said to the noble Lord, Lord Elton, when he re-examines this clause he will see that we have inserted the issue of family life and parents and carers precisely because the noble Lord, Lord Northbourne, and others appropriately took me to task at an earlier stage for its omission. The provision has now been included. We have, I hope, as the noble Lord indicated, moved some way in that direction.

I cannot accept Amendment No. 18 because of the way in which it raises various issues. There are real difficulties when one tries to focus services on the territory of family life, in a clause that is actually about the activities that we expect statutory agencies to undertake. We want the children's services authority and its partners to ensure they are addressing all aspects of children's well-being. That is partly why the five outcomes are there to help them do it; not on their own, but as a really big chunk of what we expect them to do.

Our previous amendment ensures that the bodies must take proper account of the importance of parents and carers. I am not sure that the noble Lord would want us to go further and suggest that the co-operation arrangements and activities of services should encroach on and—dare I say it—possibly interfere with what happens in a child's life. The way the amendment is phrased runs the risk of being misinterpreted in the sense of how we expect our services to offer such provision. For that reason—and that reason alone; it is not a political reason regarding family life—I am resisting the amendment.

When thinking about a secure family environment, it is important to ensure that provision is made in the right place. This amendment would not put it in the right place. That does not mean that we do not recognise that a stable family life is one of the underpinning features of how children develop and grow and are nurtured. That is why, when we think about looked-after children, the word "stability" has become such an important part of the PSA target. My right honourable friend the Secretary of State feels very passionately about stability, which for some children is so badly lacking.

We have no will to move away from that. However, I fear that, by making this amendment in the proposed place, we would run the risk of asking our services to look at family life more carefully, but in a way that the noble Lord does not want. I have, however, listened very carefully. I shall therefore ignore my speaking note and accept Amendment No. 19.

Lord Northbourne

My Lords, I am very grateful indeed to the noble Baroness for her reply. I accept the points that she makes on Amendment No. 18. The difficulty is always to try to craft support and Acts for families in such a way that they do not encroach or interfere, but rather are related to listening. responding and empowering. However, in view of what the noble Baroness has said about Amendment No. 19, I am very happy to seek to withdraw Amendment No. 18. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne

moved Amendment No. 19:

Page 6, line 10, at beginning insert "emotional,"

On Question, amendment agreed to.

Lord Northbourne

moved Amendment No. 20:

Page 6, line 12, after "England" insert "and its relevant partners"

The noble Lord said

My Lords, I shall be very brief. Amendments Nos. 20, 22 and 32 would respectively extend the application of Clause 7(3), which is the Government's amendment about paying attention to the family and to parents, to three other groups: to the relevant partners of a children's services authority as well as to the authority itself; to the bodies which will be responsible for making arrangements for safeguarding and promoting the welfare of children under Clause 8; and to any person or body carrying out an inspection or making a report under Clause 16 of the Bill. This is another group of amendments which relates to the concept that what is sauce for the goose should be sauce for the gander. If Clause 7(3) is desirable in relation to a children's services authority, why is it not also important that it should apply with equal force to those other bodies concerned with the well being of children in the Bill? I beg to move.

Baroness Howe of Idlicote

My Lords, in the briefest possible way, I support the amendments. I do not think that we need say any more than that, because we have had these arguments out so many times. They are all important, and if they apply to one group or authority with those responsibilities, they should apply across the board. I hope that we do not need a debate and we can accept what is proposed.

Earl Howe

My Lords, on Amendment No. 22, I sympathise totally with the intentions of the noble Lord, Lord Northbourne. However, it is important that where a child is at risk of harm from his own parents or carers, nothing in the wording of the Bill should get in the way of the local authority being able to take the action that it needs to take to remove a child from harm's way.

I do not know whether the amendment poses that sort of a risk, but expressed as it is, I am a little concerned that it might. I am prepared to stand corrected. I want the noble Lord to know how much I support the general thrust of Amendment No. 22, particularly as it relates to the promotion, as opposed to the safeguarding, of children's welfare.

Baroness Ashton of Upholland

My Lords, on Amendment No. 20, the noble Lord sought clarification that what was sauce for the goose was sauce for the gander. I reassure him that that is the case. The duty to have regard to the importance of parents is placed on the children's services authority because that is the body required to make arrangements for co-operation. The relevant partners are under a duty to co-operate in the making of those arrangements. Therefore, they are covered by what is already in the Bill. I hope that reassures the noble Lord.

The noble Earl, Lord Howe, has indicated the problem that we have with Amendment No. 22. It would make the duty to have regard to the importance of parents equal to, but completely separate from, the duty they already have to have regard to the need to safeguard and promote the welfare of children in exercising the normal functions. Amendment No. 22 would weaken rather than strengthen the duty, and it dilutes the focus of Clause 8. I am sure that is not the noble Lord's intention. It really matters that we have a single, stand alone duty in relation to safeguarding. It emphasises to the agencies involved the crucial importance of safeguarding and promoting the welfare of children. That is why I do not wish to accept the amendment, because it is too important to risk diluting.

Amendment No. 32 is unnecessary. The job of the inspectorate is to inspect the provision of services. We do not want—and we do not think that the noble Lord wants—the inspectorate to be inspecting the contribution of parents to their children's well being by intruding on their privacy and their domestic premises. We cannot work out how to fulfil such a duty other than by inspection activity, and I am sure that the noble Lord is not seeking that. The new arrangements for the inspection of children's services will ensure that the views of parents and carers on services will be taken into account. It is covered in the Every Child Matters: Inspecting Services for Children and Young People discussion paper. One of the principles of the framework for inspections will be that inspections should seek the views of children and young people, and that their perspective on services will be taken as part of the evidence of the availability, quality and impact of provision.

The discussion paper explicitly states that the consultation with children, young people, their parents and carers will be a key part of the process of joint area reviews. On the basis that it is unnecessary, and it would lead to something that the noble Lord does not want, I hope that he will withdraw his amendment.

Lord Northbourne

My Lords, all three of the answers were satisfactory and convincing. I am most grateful to the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Clause 8 [Arrangements to safeguard and promote welfare]:

Earl Howe

moved Amendment No 21:

Page 7, line 20, at end insert— ( ) a regional office of the National Asylum Support Service; ( ) the centre manager of an immigration removal centre; ( ) the Chief Immigration Officer at a port of entry;"

The noble Earl said

My Lords, the arguments for this amendment have been well rehearsed at earlier stages and I shall not weary the House by repeating them at length. We have what appears to many, including me, a giant lacuna in the Bill. In the Green Paper Every Child Matters refugee children are specifically mentioned as being children in the greatest need, yet the agencies which are charged with looking after them are excluded from the duty in Clause 8 to safeguard and promote children's welfare. I have read what the Minister said about the amendment on Report. I still find the omission incomprehensible. Why on earth should refugee children be denied the same rights and protection as other children in the UK? The Minister argued that, a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control.—[Official Report, 17/6/04; col. 996.] She went on to argue that in undertaking its primary functions it would be unavoidable that the IND would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.

We need to unpack this a bit. The first point is that Clause 8 is not an absolute duty, but simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.

As the Minister said on Report, We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions.—[Official Report, 17/6/04; col. 995.] Nobody would argue that the primary function of the Immigration Service is not to ensure effective immigration control, just as nobody would dispute that the primary function of the police is to ensure public order and prevent crime. Yet the chief officer of police is included in the new duty in Clause 8(1)(g). We might do well to look at the Explanatory Notes to the Bill which state: This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions. The Government have failed to explain how this duty would interfere with the normal functions of the agencies listed in the amendment.

It is important to look at the wording of the amendment because it does not ask that the whole of the IND service be included in the duty, only the relevant bodies and personnel who come into contact directly with children at key points in the system.

Perhaps I may say a few words about detention. On Report the Minister restated the concerns of the Immigration Service that the amendment, would provide another basis for exploiting the appellate and judicial review systems by arguing that the detention of asylum-seeking families with children is not compatible with safeguarding children or promoting their welfare.—[Official Report, 20/5/04: col. 977.] It is a little hard to reconcile the Minister's position with the recent assertion by her noble friend Lord Bassam in debates on the Asylum and Immigration (Treatment of Claimants Etc.) Bill. When resisting an amendment to ensure that assessments of children's needs while in detention are undertaken the noble Lord argued: I hope that noble Lords are reassured that the current provision for the care and welfare of children detained in immigration removal centres is of a very high standard. We will never be complacent about the issue, and we will ensure that we are aware of the need to maintain—and, where necessary, improve—the standard of care for children.—[Official Report, 18/5/04; col. 748] Despite the noble Lord's assertions, we still have reports by Her Majesty's Inspectorate of Prisons on inspections of five immigration removal centres in 2002. Those reports have been mentioned at earlier stages of the Bill. They highlight the inappropriateness of detaining children and concerns about their treatment.

Similar concerns about the treatment of children in Prison Service establishments has led to their inclusion under the new duty in Clause 8, so we have to ask why a different approach is being taken here. We need to remember that detention is without limit of time. In fact it can be for prolonged periods. Recent figures given by the noble Lord, Lord Bassam, in debates indicate that between March and April 2004, 323 people were taken into detention, 63 of whom were held for more than a week. The Refugee Children's Consortium considers the measures for ministerial authorisation referenced by the Minister on Report to be woefully inadequate. One particular case illustrates that: the Konan case. Miss Konan, who fled the Ivory Coast, was detained for more than six months with her young child. The period of detention was subsequently ruled to be unlawful for all but the initial two-week period, despite repeated authorisation by the Minister. If the Minister considers it appropriate to detain children and that the care for children in detention is of a high quality, will she explain why those directly responsible for the care of children should not fall under the duty in the Bill? I beg to move.

The Lord Bishop of Worcester

My Lords, I have to say that I find it quite difficult to speak in a suitably measured way about what I see as quite unwarranted resistance to the terms of the noble Earl's amendment. I am assuming, of course, that the Minister will continue to resist the proposal, as has been the case at earlier stages. I hope that she will not and thus prove me wrong. The reason I find it difficult to express myself in a measured way is that a clause and debate of this kind puts to the test the ultimate purpose of the Bill.

It is my feeling that putting children first cannot apply only when it is naturally convenient to do so and does not interfere with obligations and duties. The test of the Government putting children first and of the nation putting children first arises precisely at the point at which it is rather inconvenient and difficult. "Inconvenient and difficult" means when there is the possibility—I do not hear the noble Earl denying it—that it could get in the way of our current arrangements for dealing with the children of asylum seekers.

By any stretch of the imagination, the children of asylum seekers are the most vulnerable children among children because they are in a position where their very existence as people entitled to be here is in question. It is precisely because of that high level of vulnerability that I find it really does put the will of this House and of the nation to the test when we are invited to believe that we have a duty that must be placed above our care for those children. I urge the Government to understand that, for many of us, an issue of this kind poses ultimate questions about the seriousness of our intentions.

This is an excellent, really important and courageous Bill. However, it places upon us the requirement that we take its purpose seriously precisely at the point when it is difficult to do so. I urge the Minister to allow the amendment to proceed. If she will not, I seriously urge noble Lords to register their wish that it should.

Baroness Walmsley

My Lords, the arguments in favour of the amendment have been well put and I will not repeat them all. However, in supporting the amendment I would like to repeat two short points. First, this is a modest measure. The duty to safeguard and promote the welfare of children is a modest one. As it says in the Explanatory Notes: This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions. Is it too much to ask that when agencies are involved with children they are conscious of the need to safeguard them? It is a very modest measure indeed.

Secondly, the Minister said on Report that a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control.—[Official Report, 17/6/04; col. 996.] If that is the case, there is something wrong with the way in which refugee children are being treated, and it must be addressed.

Lord Hylton

My Lords, the noble Earl, Lord Howe, explained the amendment so well and went into all the necessary detail so that it is difficult to add anything of substance to what he said. However, I supported him on a previous occasion and I support him again today. If he is minded to divide the House I shall certainly support him in the Lobby.

Baroness Howe of Idlicote

My Lords, I, too, would like to support this important amendment. It is clear that this particular group of children need the protection and understanding of all the agencies. They are undergoing a particularly stressful process. Their well-being, in that now well-used phrase, is almost certain to be under extreme pressure. I hope that we will be able to accept what is proposed.

Baroness Howarth of Breckland

My Lords, I would like to apologise to the noble Earl, Lord Howe, for not being here for the whole of his speech. I rise to support the amendment. I have in the past spoken to the Minister about the position of these children. I did so in relation to the Asylum Bill and the concerns carry through into this Bill. One thing that has been said to me—not by the Minister—is that unless we carry out actions like this, we will not send a message to the other end of the supply chain. I find that an abhorrent concept—that children should be involved in sending such messages.

I have said this before. We used to say this about children in bed and breakfast hotels. We used to say that because their parents deserved to be treated in a certain way because of the consequences of their rent arrears and their fecklessness—not that I necessarily agree with that, but this was the argument—the children should be placed in bed and breakfasts. The Government have worked enormously hard to ensure that those children are now more appropriately—maybe not perfectly, but more appropriately—accommodated.

This group of children are still children. I recognise the difficulty in relation to the policies that the Minister is under an obligation to support and that she may well be in difficulties in terms of her party's policy. However, were the noble Earl, Lord Howe, to divide the House I would certainly vote for the amendment.

4.45 p.m.

Baroness Ashton of Upholland

My Lords, as always when we discuss this issue, I recognise the strength of feeling and the passion with which noble Lords—not least the right reverend Prelate—have spoken. I recognise and understand completely that we are referring to a very vulnerable group of children, to whom we have a responsibility. I have never said—it would be completely wrong to suggest it—that our services do not have a role to play in safeguarding the welfare of children. The question is: how do we make sure that that happens appropriately; and what are the consequences of what we might do in a particular Bill for those services on the ground?

Noble Lords will recognise—certainly it is my experience—that the Immigration Service and NASS encounter many children in extremely difficult circumstances and are aware of the need to ensure that such children are referred to the proper agencies and receive support. I said on Report I shall not repeat it—that arrangements have been established to ensure that such concerns are dealt with as swiftly as possible. I can assure noble Lords that both organisations understand their responsibilities and are strongly supportive of the need to safeguard children and promote their welfare.

I shall not take up your Lordships' time by again going through the measures that I and Ministers from the Home Office have indicated before; I do not believe that there is a contradiction in where my noble friend Lord Bassam and I stand on this issue. We are both of the view that children and their families need to be supported effectively and that there are real issues relating to asylum and immigration.

Throughout the different stages of the Bill, I have worked closely with colleagues, ministerial and official, in both departments to examine what the consequences would be if the amendment were to be made. I am completely of the view that there would be consequences for our asylum and immigration policy. Noble Lords may feel that that is OK, that it is appropriate and that it is what they want to happen, but we are sure that the amendment would have an impact on what we would be able to do in terms of removals and the ability of people to use the Bill for judicial review. It is for those reasons—and those reasons alone—that I cannot accept the amendment. That in no way suggests that we think there are not duties and responsibilities which rest with the services; indeed, I have outlined them. I worry that sometimes we take the view that our services are not mindful of children and families in the work they do, whereas I think they do an amazing job with them in often quite difficult and tragic circumstances. But, ultimately, we have an asylum and immigration policy designed to support people in the best possible way—and that includes removing families on occasion and resettling them. It could be argued that that is appropriate and in the best interests of the children. Refusal of the right to stay on occasion could also be in their best interests.

It is because we believe that the amendment would directly affect this policy that I urge the noble Earl to think carefully about pressing his amendment to a vote. I can reassure noble Lords that this is in no way counter to saying that this is not a responsibility we would wish to see for our services to treat these vulnerable children properly. Indeed, they already have one.

Earl Howe

My Lords, I am grateful to all noble Lords who have spoken in favour of the amendment. The right reverend Prelate was right to emphasise the high level of vulnerability of this group of refugee children. I found the speech of the noble Baroness, Lady Howarth, particularly compelling.

I cannot counter the Minister's essential pragmatic point. It is a disappointing argument in the context of a Bill with such high principles, with which we all identify. She has repeated often that the Bill is intended to cover all children, without exception. It is an issue of principle on which it would be right for me to test the opinion of the House.

4.50 p.m.

On Question, Whether the said amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 99.

Division No. 3
CONTENTS
Alderdice, L.	Jenkin of Roding, L.
Ampthill, L.	Joffe, L.
Astor of Hever, L.	Kingsland, L.
Barker, B.	Laird, L.
Beaumont of Whitley, L.	Laming, L.
Blackwell, L.	Lang of Monkton, L.
Brooke of Sutton Mandeville, L.	Listowel, E.
Brougham and Vaux, L.	Livsey of Talgarth, L.
Byford, B.	Luke, L.
Campbell of Alloway, L.	Lyell, L.
Chadlington, L.	Maclennan of Rogart, L.
Colwyn, L.	McNally, L.
Cope of Berkeley, L. [Teller]	Maddock, B.
Cox, B.	Maginnis of Drumglass, L.
Craig of Radley, L.	Marlesford, L.
Craigavon, V.	Methuen, L.
Crathorne, L.	Neuberger, B.
Cumberlege, B.	Northesk, E.
Dholakia, L.	Northover, B.
Dundee, E.	Park of Monmouth, B.
Dykes, L.	Parkinson, L.
Eden of Winton, L.	Rawlings, B.
Elton, L.	Redesdale, L.
Falkner of Margravine, B.	Rees, L.
Ferrers, E.	Renfrew of Kaimsthorn, L.
Finlay of Llandaff, B.	Renton, L.
Fowler, L.	Rodgers of Quarry Bank, L.
Garden, L.	Rogan, L.
Gardner of Parkes, B.	Roper, L.
Greaves, L.	Rotherwick, L.
Greengross, B.	Russell-Johnston, L.
Griffiths of Fforestfach, L.	St. John of Bletso, L.
Hamwee, B.	Seccombe, B. [Teller]
Harris of Richmond, B.	Sharp of Guildford, B.
Higgins, L.	Shrewsbury, E.
Hooson, L.	Shutt of Greetland, L.
Howarth of Breckland, B.	Skelmersdale, L.
Howe, E.	Slynn of Hadley, L.
Howe of Aberavon, L.	Smith of Clifton, L.
Howe of Idlicote, B.	Steel of Aikwood, L.
Hylton, L.	Strathclyde, L.

Thomas of Gresford, L.	Walmsley, B.
Thomas of Walliswood, B.	Weatherill, L.
Tope, L.	Williams of Crosby, B.
Wallace of Saltaire, L.	Worcester, Bp.

NOT-CONTENTS
Acton, L.	Howells of St. Davids, B.
Amos, B. (Lord President of the	Howie of Troon, L.
Council)	Hoyle, L.
Andrews, B.	Hughes of Woodside, L.
Archer of Sandwell, L.	Irvine of Lairg, L.
Ashton of Upholland, B.	Judd, L.
Bassam of Brighton, L.	Kirkhill, L.
Berkeley, L.	Lea of Crondall, L.
Bernstein of Craigweil, L.	Lipsey, L.
Bhatia, L.	McIntosh of Haringey, L.
Blackstone, B.	MacKenzie of Culkein, L.
Boothroyd, B.	Mackenzie of Framwellgate, L.
Borrie, L.	McKenzie of Luton, L.
Brennan, L.	Massey of Darwen, B.
Brooke of Alverthorpe, L.	May of Oxford, L.
Brookman, L.	Mishcon, L.
Campbell-Savours, L.	Mitchell, L.
Carter, L.	Morgan, L.
Christopher, L.	Morgan of Drefelin, B.
Clarke of Hampstead, L.	O'Neill of Bengarve, B.
Clinton-Davis, L.	Pitkeathley, B.
Cohen of Pimlico. B.	Prosser, B.
Crawley, B.	Ramsay of Cartvale, B.
David, B.	Randall of St. Budeaux, L.
Davies of Coity, L.	Rendell of Babergh, B.
Dean of Thornton-le-Fylde, B.	Richard, L.
Drayson, L.	Rooker, L.
Dubs, L.	Rosser, L.
Elder, L.	Sainsbury of Turville, L.
Evans of Parkside, L.	Sawyer, L.
Evans of Temple Guiting, L.	Scotland of Asthal, B.
Falconer of Thoroton, L. (Lord Chancellor)	Sheldon, L.
Farrington of Ribbleton, B. [Teller]	Simon, V.
	Stone of Blackheath, L.
Faulkner of Worcester, L.	Strabolgi, L.
Filkin, L.	Symons of Vernham Dean, B.
Gale, B.	Temple-Morris, L.
Gibson of Market Rasen, B.	Tomlinson, L.
Golding, B.	Triesman, L.
Goldsmith, L.	Truscott, L.
Gordon of Strathblane, L.	Tunnicliffe, L.
Gould of Potternewton, B.	Turnberg, L.
Graham of Edmonton, L.	Turner of Camden, B.
Grocott, L. [Teller]	Wall of New Barnet, B.
Harris of Haringey, L.	Warner, L.
Harrison, L.	Watson of Invergowrie, L.
Hart of Chilton, L.	Whitty, L.
Hayman, B.	Williams of Elvel, L.
Henig, B.	Winston, L.
Hilton of Eggardon, B.	Woolmer of Leeds, L.
Hogg of Cumbernauld, L.

Resolved in the negative, and amendment disagreed to accordingly.

5 p.m.

[Amendment No. 22 not moved.]

Clause 9 [Information databases]:

Baroness Ashton of Upholland

moved Amendment No. 23:

Page 7, line 39, leave out "or"

The noble Baroness said

My Lords, in moving Amendment No. 23, I shall speak also to Amendments Nos. 27 to 29, 31, 33, and 36 to 39. This group of government amendments relates to the information databases to be established under Clauses 9 and 24 and fulfils the commitment I signalled at Report stage to examine whether further reassurance could be given to noble Lords on a number of points.

Before turning to the amendments, I thank noble Lords for their contributions during our debates on information databases and for being willing to meet outside the Chamber to discuss a range of issues. The arguments that have been put forward have been serious and considered. I have listened to them carefully and recognised their force through government amendments and the announcement of public consultation on the key issues of recording concerns and the involvement of sensitive services.

Amendments Nos. 23 and 33 make a drafting correction to subsection (1) of Clauses 9 and 24. I made it clear that we wanted flexibility on whether databases would be established on a national, regional or local basis. As noble Lords have pointed out, it is important that we take such decisions carefully. Noble Lords know that we have commissioned independent advice. We have been advised that the wording of subsection (1) might preclude a combination of local, regional or national elements to the solution. Deleting the word "or" apparently retains the flexibility.

Amendments Nos. 27 and 36 put beyond doubt that the databases are not to contain case records. I have already given reassurances to that effect, but noble Lords expressed concern on Report that the wording of subsection (4)(h) would give the power for such details to be included in the future. We are clear that there must be flexibility to set out new data requirements in regulations, subject to approval of both Houses of Parliament, rather than in primary legislation. I hope that noble Lords will now be reassured that such flexibility may not be used to change the nature of the database from what we have set out, by turning it into a case record for the child.

Amendments Nos. 28 and 37 add to the list of matters that may in particular be covered by regulations the issue of how long information must or may be held on the database. I have agreed with noble Lords in earlier debates that we shall need to be clear about the standards governing the length of time that individual pieces of information and a child's record as a whole should be kept on the database. On Report, I indicated in response to the noble Earl, Lord Howe, that I would bring forward an amendment reflecting his proposal that this matter should be set out on the face of the Bill as one to be covered in regulations. I am grateful to the noble Earl for his suggestion. I hope that I have succeeded.

Amendments Nos. 29 and 38 add to the list of matters that may in particular be covered by regulations the issue of procedures to ensure accuracy. I have agreed with noble Lords in earlier debates the importance of this matter too. For the databases to be effective tools, the information must be up-to-date and accurate. In Committee, I indicated in response to the noble Earl, Lord Howe, that I would consider whether there was more that we could do to reassure noble Lords that we share their concern that information should be accurate. The amendment reflects the proposal of the noble Earl in Committee that this matter should be set out on the face of the Bill as one to be covered in regulations. Again, I am grateful to the noble Earl for his suggestion.

Amendments Nos. 31 and 39 provide that guidance or directions under subsection (13) may cover the provision of advice about existing rights under the Data Protection Act. As I have stressed to noble Lords in Committee and on Report, the databases will operate in accordance with the provisions of the Data Protection Act. In response to points made on Report about appeal procedures by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, I reiterated that we do not intend to create new arrangements of this kind, especially for these databases. But I undertook to consider what we might do to reassure noble Lords. I believe that it is very important that people are made aware of their rights under the Data Protection Act. The amendment, therefore, adds the provision of such advice to the list of matters that may in particular be covered by guidance and directions under Clauses 9 and 24. I hope that noble Lords are reassured by this. I beg to move.

Earl Howe

My Lords, first, I thank the Minister for tabling the Government's amendments to this clause, all of which I welcome greatly. She has responded positively to the specific concerns that I and other noble Lords raised at earlier stages.

On Amendment No. 31, it is good news that the rights of the citizen under the Data Protection Act are to be highlighted automatically. That will do much to dispel any idea that secret things are being said and done behind the back of citizens. I am not quite so sure about the extent to which the Data Protection Act allows someone to lodge a formal objection against something and to be certain that it will be dealt with fairly and promptly. The rights conferred by the Act appear to me to fall short of that, but perhaps the Minister will be kind enough to clarify them.

I am concerned that the power of the citizen for getting things done is actually quite limited. In this context, that could be very damaging because, if there is a practitioner's name or a flag of concern that is inaccurate or misleading, it might serve to disadvantage the person whom it concerns if a professional were to happen upon it.

I shall speak briefly to Amendments Nos. 24 and 34. I do not expect the Minister to seize on them as the answer to her prayers, but they are intended as a helpful suggestion which I hope she will consider. It was the Minister who mentioned on Report that there was nothing in Clause 9 to allow the sex of a child to be entered on to a database. As she knows, I am very much a minimalist in my approach to these provisions, but I went away and realised that she had a point. Some names tell you clearly whether you are dealing with a boy or a girl, but other names do not, particularly non-English names. Knowing the gender of a child is an essential matter. That is why I felt that the Minister might consider including the word "gender" in the Bill.

Baroness Barker

My Lords, I too welcome the Government's amendments. Like many other noble Lords, I have pointed out repeatedly the deficiencies of what is now Clause 9. I take heart from the fact that the Minister has listened to a number of the points that have been made.

I welcome particularly the provisions about the Data Protection Act. I share the concerns of the noble Earl, Lord Howe, about whether the Act is a satisfactory instrument by which individuals can seek redress. None the less, it is the law. As I have also said on many occasions, and as the noble Lord, Lord Laming, pointed out early on in his report, the lack of knowledge and understanding among professionals of their scope to share information under the Data Protection Act has had horrible consequences for children. It is therefore important that the Data Protection Act is firmly set in Clause 9.

We support Amendment No. 24. My notes on that state simply "Lindsay, Lesley, Daljit" and there they stop.

Unsurprisingly, I shall concentrate on Amendment No. 30. I am relieved that the Government tabled Amendment No. 28, which deals with the length of time that information should stay on the database. We have said at previous stages of the Bill that it appeared that once information or a flag was on the database, it would stay there until the child's whole record left that database, which would presumably be when the child reached the age of majority.

There is a strong case for including in the Bill annual reviews of data. Events happen through children's lives in the process of growing up that it may be right to have recorded at some point. Equally, it may be important in terms of that child's well being that the continued inclusion of information should be subject to review. There should be a mechanism by which practitioners are encouraged—I would perhaps say "forced"—to review the data that they hold on people.

I, too, shall give the Minister a mythical example. It involves an area containing a number of statutory agencies. Once a year, they might look at all the information they hold on children and, from that, identify the small number—it always is a comparatively small number—who are in receipt of multiple services from different agencies. We should bear in mind that a universal database is involved. It would be advantageous to them and the children to have to undertake an annual review of the information in the database. Much could flow from that, not least because it would enable authorities to see trends and patterns within individual agencies and to examine resources for children's welfare.

At a previous stage, the Minister held out great hope for the consultation that will take place on flags of concern. I remain deeply opposed to flags of concern, as she knows. I make no secret of the fact that my perspective involves protecting people who are wrongly adjudged to be worthy of inclusion on practitioners' databases as a cause for concern, and I seek to strengthen their rights. The annual review process would do so. Organisationally, that is a commendable part of good practice. I should prefer it if that provision were in the Bill and then consulted on; it should not emerge from a process of consultation.

Those of us who have argued most vigorously about Clauses 8 and 9 have been very generous to the Government in terms of the promise of forthcoming consultation. Perhaps we have been too generous. On reflection, noble Lords may conclude that we have set a bad precedent. As I said, we were faced with a clause whose drafting was unacceptable to begin with. It is marginally better as a result of additions and it is greatly improved by the noble Baroness's amendments, which we considered today. Such amendments should have been in the Bill in the first place because they contain absolute tenets of basic good practice. For all those reasons it would be advantageous to have an annual review and for that to be specified in the Bill rather than left to regulation.

5.15 p.m.

Baroness Ashton of Upholland

My Lords, I thank noble Lords for the welcome that they have given to the government amendments, albeit with the caveats mentioned by the noble Baroness, Lady Barker.

I say to the noble Earl, Lord Howe, that the DfES lawyers prefer "sex".

Baroness Barker

My Lords, will the noble Baroness tell us what they think about the Bill?

Baroness Ashton of Upholland

My Lords, there can now be a car sticker—with a Hansard reference no doubt—on this point. Despite the fact that the DfES lawyers prefer the word "sex", they are very happy to accept "gender". We are very pleased to accept Amendments Nos. 24 and 34.

The noble Earl asked me about the data protection principles. As I understand from reading the information that I have been given—I shall ensure that the noble Earl is given a copy—individuals apply in writing to find out what information is on the database. They can apply in writing to have something removed. Ultimately, the matter is for the courts to decide. I do not have available details of the process that the individual goes through in that regard. I shall, of course, write to the noble Earl to clarify that.

Baroness Howarth of Breckland

My Lords, I apologise for interrupting the noble Baroness but it has just occurred to me that there is a circular regarding access to records which may conflict with what we are discussing. We may need to consider that. I have tried to consult with my noble friend Lord Laming on that, but perhaps I should discuss it outside the Chamber as it might constitute an added complication.

Baroness Ashton of Upholland

My Lords, I should be grateful to know about any added complications. I am sure that between them the noble Lord, Lord Laming, and the noble Baroness, Lady Howarth, will be able to track down the circular; in fact, I shall hold them to that, if I may.

On Amendment No. 30 the difference between the noble Baroness and myself is very small. I am not sure that an annual review is sufficient. It is important that a constant review is conducted of the information that is being held. People should be aware of what information is being held in terms of names, contact points and any flags of concern. We want to see something that is unnecessary removed immediately. We want to ensure that we make it clear that where it is obvious that a flag is no longer necessary it should be removed immediately. We want to ensure that regular reviews of the whole process take place. As I say, I am not certain that a year is the most appropriate length of time.

I know that the noble Baroness considers that the consultation exercise is perhaps a bit woolly—I do not know what word she might use—but it is important that we talk to professionals about their experience and consider the experience of the trailblazers. We need to consider carefully the detail of what will be included in guidance and regulations. My job is to ensure that I have put on the record that the regulations will cover the rules on deleting concerns after they have been addressed or when new information is obtained that states that the concern is ill-founded. Furthermore, the guidance and directions that we shall issue on the management and operation of the database should make it clear that one of the functions of anyone operating the database will be to monitor the use of the recording of concerns.

We want to discuss and take views on the regularity of formal reviews. However, we consider that it is important that where there is no need to have a flag of concern on the database—or whatever terminology we end up with as we are consulting on that—it should not sit there. The critical point is that information that is irrelevant should not sit there. I believe that we are all agreed on that. Our method of achieving that is through consultation, the regulations and the guidance. I hope that the noble Baroness will accept that our objectives are not dissimilar to hers and that on that basis she will feel able not to press the amendment.

Baroness Barker

My Lords, I thank the Minister for that reply. I do not believe that the consultation process is woolly. I do not believe that I have ever said that. I believe that the order of events is wrong in that Parliament ought to determine the principles and the main headlines and then consultation should take place rather than the other way round. However, perhaps the noble Baroness will accept that I was trying to be mindful of the advice of those who seem to prefer the word "sex". They also seem to prefer wording that is as loose as possible. I did not want to hold people to having constant reviews. It was a de minimis measure. However, I take the noble Baroness's point in that regard.

On Question, amendment agreed to.

Earl Howe

moved Amendment No. 24:

Page 8, line 6, after "address" insert ", gender

The noble Earl said

My Lords, I thank the noble Baroness for accepting the amendment. Also, I signal my complete acquiescence if, in another place, the Government choose to change "gender" to "sex". I beg to move.

On Question, amendment agreed to.

Baroness Barker

moved Amendment No. 25:

Page 8, line 18, leave out from "information" to end of line 19 and insert "which gives the reporter cause to suspect that the child in question is suffering or likely to suffer significant harm

The noble Baroness said

My Lords, I return, for a reason, to debates that we had at an earlier stage of the Bill. I remain deeply sceptical about flags of concern and the basis for them. The noble Earl, Lord Howe, seeks in another amendment in the group to express his concerns in a different way. The point that we have discussed before, but not to any great satisfaction, is what the threshold for a flag of concern will be. We are also concerned that there should be a common threshold across all those who enter information or flags of concern on to the database.

We have already discussed the phrase "cause for concern". I want to take the Minister to task for a particular point. She said: We are looking through the consultation and the trailblazers' experience to see whether a record of the fact of the concern should be retained on the system until the whole record is deleted, or whether it should be removed after a defined period of time. Because it is more multi-agency focused, our ambition is that the chances of such misplaced concern diminishes and we are clear that we want to issue the right guidance.—[Official Report, 5/7/04; col. 593.] We take exactly the opposite view: it is precisely because of the multi-agency focus, and because there is therefore far greater scope for mistakes in information to be compounded, that there should be a common threshold.

The noble Baroness has argued that Section 17 of the Children Act, which is what the wording is taken from, sets the threshold too high. I have looked at that section and its definition of children who would come under its auspices. It talks about children in need and the standard of health or development, with "development" meaning, physical, intellectual, emotional, social or behavioural development, and "health" meaning "physical or mental health". When one compares that to this Bill's list of physical and mental health, protection from harm and neglect and so on, there is very little difference.

I return to a point that I made at an earlier stage. At the moment, children who have Section 17 needs as opposed to Section 47 needs still do not receive help from social services. Therefore, I do not see why, in seeking to establish the level for the flags of concern, Section 17 should not be it. I believe that it is better to build on something that has common currency and understanding among professionals who work with children than to go through what I imagine would be a long process of defining "cause for concern" with all the organisations that are going to work with children coming to a general understanding of it. That may not be in the best interests of children. As there is already an answer within Section 17 of the Children Act, I believe that we would be advised to use it in this context. I beg to move.

The Deputy Speaker (Baroness Ramsay of Cartvale)

My Lords, I have to inform your Lordships that if Amendment No. 25 is agreed to, I cannot call Amendment No. 26.

Earl Howe

My Lords, I was somewhat tentative in proposing Amendment No. 24. I should not have been, but I am even more tentative as regards Amendments Nos. 26 and 35, which are grouped here.

The Minister will know my worry, which I believe she shares—that is, that the expression "cause for concern" has inbuilt overtones of child protection which are inappropriate. We need an expression that is more value-neutral. I suggested "special attention" but there may be a better phrase.

However, the real reason that I am tentative is that I recognise that what appears on the face of the Bill is in many ways less important than what appears in the subsequent regulations and guidance. I believe we all know and understand the point that we are trying to reach, and it would be nice—even if it is not essential—for the face of the Bill to give precise expression to that. I hope that the Government will continue to reflect on that point when the Bill is debated in another place.

The worry that I have here is somewhat broader and, in some ways, it was reflected in the remarks of the noble Baroness, Lady Barker. We should not assume or take it as read that flags of concern are needed in the first place. I shall not go over all the arguments again but perhaps I may say one or two things.

If flags of concern denote low as well as high levels of concern, quite a lot of them will appear. If databases are intended to act as predictive screening tools, we need to remember that even the most accurate predictive screening techniques available have an unavoidable margin of inaccuracy. One cannot avoid that. Even a 5 per cent margin of inaccuracy in flags of concern will lead to a large number of children being wrongly singled out for attention. The implications of that for resources are a worry to me.

Secondly, if flags are to be generated as a result of a low threshold of concern—by which I mean lower than the threshold which applies when a child is at risk of significant harm—they are bound to lead to an expectation of receiving services. But we all know that the threshold for receiving services is quite high. In those circumstances, one has to ask what would be the point of setting the threshold for flags of concern at a relatively low level and, indeed, what would be the point of having them at all.

According to the report from Royal Holloway college, the best trailblazer pilots are those where concerns are not logged on the database. We have returned to the point that we covered previously—that is, that logging something on to a database can never be a substitute for making a professional judgment. It is people and not databases that make those judgments.

Therefore, I hope that, despite the appearance of being wedded to the notion of flags, Ministers will nevertheless allow themselves to keep an open mind on whether flags of concern are likely to be a help or a hindrance in achieving the end result of better outcomes for all children—a result that we all want to see.

Baroness Ashton of Upholland

My Lords, I am very grateful to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for their amendments. The noble Baroness talked about Section 17, but her amendment mirrors the wording of Section 47. Therefore, my immediate difficulty with it is that it is not about the threshold that the noble Baroness described; it is about child protection issues, which I do not think is where the noble Baroness was seeking to place it. So, although I reject the amendment because it takes us to a place that I do think the noble Baroness would want us to go, I believe that it is worth saying that.

5.30 p.m.

What we are all searching for is a system that enables us to get the professionals talking to each other; to note that there are professionals involved in the process and that they have some kind of concern—I will come to the phraseology in a moment—long before we are currently able to support children. The noble Earl talked about resource issues, and on those I could not agree more. I made quite a few presentations in the regions on the Green Paper, Every Child Matters, and saw how the graphs are skewed because of how resources are used to deal with crises long after those situations should have been recognised and sorted. That is a real tragedy, which is twofold. First, children do not get the support early enough to prevent a situation becoming a crisis. Secondly, we are not using resources effectively because sorting out crises can often be more difficult.

We want to start lower down the scale in terms of recognising that support might be needed, not to single out children in a negative way, but to recognise the services that work with children and ensure that they are given the support they need. We are all grappling with that to some degree. So I reject the amendment tabled by the noble Baroness. Not only is the point covered in Section 47, but, even taking Section 17 into account, we are trying to start the identification earlier.

I turn to the amendment moved by the noble Earl, Lord Howe. I understand what he is seeking to do, and I am grateful to him for discussing it with me. He will not be surprised to hear that "special attention" contains issues, not least that you need a concern before giving special attention. So, in a sense, it slightly alters the threshold in any event. However, I hope that noble Lords will take comfort from the fact that all of the work that has gone into the Bill in deliberating on what we might do has been incredibly helpful to us. It has meant that we are looking carefully to consult properly and effectively. I specifically ensured that the trailblazers, who came to talk to noble Lords, were a representative group with differing views. As we begin to develop the phraseology, it is important that this is not seen as a substitute for action. The noble Earl is right, and the point has been made many times also by the noble Baroness, Lady Barker. I could not agree more that putting something on a database is not a substitute for doing something else. However, if you are trying to find who else you need to talk to or who else is involved with a family, it is critical to have at least an address. We would argue that it is important also to know who to go to first after a matter has been flagged up. The trailblazers have tried different systems. Some have decided not to do that at all.

There is much to be done. However, I would not want noble Lords to think for one moment that their concerns have not been reflected back to my ministerial colleagues or that we do not understand noble Lords' desire to avoid terminology that leads only to child protection or to people thinking that that is the issue. It would not be a preventive system if it failed to achieve what I have just set out.

We are concerned to ensure that public consultation involves practitioners and families—parents, children and young people—and that we learn from the trailblazers while continuing to talk to others who are considering issues about how one practitioner can signal to another their concerns that a child is not thriving in any sense of the word. We are concerned also with mechanisms to signal that concern.

We recognise that it is important to get this right for all the reasons that have been stated both in your Lordships' House and outside. We shall carefully consider thresholds and terminology. I very much look forward to bringing back to your Lordships' House the results of those deliberations, which I have already indicated I shall make available not only to noble Lords who have spoken but also in the Library of the House. I look forward to the opportunity to debate those issues.

On that basis I hope that noble Lords will withdraw or not press their amendments.

Baroness Barker

My Lords, the luck of the noble Lord, Lord Northbourne, has not rubbed off on this side of the House. I take heart from what the noble Baroness has said and we will be extremely vigilant when the regulations arrive. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Baroness Ashton of Upholland

moved Amendments Nos. 27 to 29.

Page 8, line 20, after "description" insert ", not including medical records or other personal records," Page 8, line 35, at end insert— ( ) as to the length of time for which information must or may be retained; Page 8, line 35, at end insert— ( ) as to procedures for ensuring the accuracy of information included in any such database;

On Question, amendments agreed to.

[Amendment No. 30 not moved.]

Baroness Ashton of Upholland

moved Amendment No. 31:

Page 9, line 29, at end insert— ( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);

On Question, amendment agreed to.

Clause 16 [Joint area reviews]:

[Amendment No. 32 not moved.]

Clause 24 [Information databases: Wales]:

Baroness Ashton of Upholland

moved Amendment No. 33:

Page 18, line 38, leave out "or"

On Question, amendment agreed to.

Earl Howe

moved Amendment No. 34:

Page 19, line 6, after "address" insert ", gender"

On Question, amendment agreed to.

[Amendment No. 35 not moved.]

Baroness Ashton of Upholland

moved Amendments Nos. 36 to 39:

Page 19, line 20, after "description" insert ", not including medical records or other personal records," Page 19, line 35, at end insert— ( ) as to the length of time for which information must or may be retained; Page 19, line 35, at end insert— ( ) as to procedures for ensuring the accuracy of information included in any such database; Page 20, line 29, at end insert— ( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);

On Question, amendments agreed to.

Clause 45 [Ascertaining children's wishes]:

Earl Howe

moved Amendment No. 40:

Page 31, line 38, after "wishes" insert "and feelings"

The noble Earl said

My Lords, in moving Amendment No. 40, I shall speak also to Amendments Nos. 41 and 42. I was extremely appreciative that on Report the Minister tabled what is now Clause 45 to ensure that children's wishes will be taken account of whenever a local authority is considering providing services to a child.

I should like to press the Minister further. Ascertaining a child's wishes lies at the centre of good practice for all the reasons the Minister gave when introducing her amendment. Indeed, it is a concept that underpins a great deal of what is in the Bill. Wishes though are often only a part of what a child has to tell us. Young children and disabled children in particular may not be able to articulate their wishes in a measured and coherent way. Sometimes even older children will not be able to do so.

On the other hand, virtually all children will invariably be able to say how they feel. Feelings of anxiety, fear, anger, love, loathing and uncertainty in a child are quite different from a wish that a child may express for this or that particular thing. General feelings of this sort are often just as relevant in arriving at a decision on how a child might best be helped. It is no surprise that the conjunction of feelings with wishes features in a great deal of legislation relating to children. I think particularly of the Adoption and Children Act 2002, but there are a number of other important examples; for instance, Sections 1 and 22(4) of the Children Act 1989.

The reason for that is perfectly straightforward. In many situations it is simply not possible to reach a conclusion about what may be in a child's best interests until you find out what the child is feeling. This is far from being a semantic point; feelings and wishes are distinct, not only in ordinary language but in legal terms as well. I believe that it is right to add the word "feelings" into Clause 45 if we are going to do justice to the intention behind it.

I turn to the remaining amendment in this group. On Report, a number of noble Lords tried to press the Minister to carry forward the principle she very helpfully recognised in relation to Section 17 of the Children Act 1989 to Section 47 of that Act. I should like to do so again because, unusually with the Minister, I was not and am not convinced by the arguments that she put forward for resisting the proposal, either when she spoke on Report or in her subsequent letter to me, for which I was very grateful.

In her letter, the Minister explained that she did not think it appropriate to create a statutory duty to seek the wishes of the child when a local authority is considering whether to take action to safeguard a child's welfare. She argued that the time to consult a child is not when a local authority is considering whether to take action, but after that when it is considering what action to take. At that point, one of three possible sections of the Act might apply, including Section 17, and in all of those situations ascertaining the child's wishes would be mandatory.

We need to be careful in discussions of this kind that the larger picture and the larger issues are not buried by somewhat rarefied arguments. If you ask most people why Victoria Climbié was not rescued by the authorities, I suspect one reason would feature more than any other, which was that no one actually spoke to her. Let us be clear: Victoria Climbié fell squarely into Section 47 territory. The bruises and burns on her body had been noticed, and a number of people were debating what ought to be done. When Victoria's carers were approached, the questioners were fobbed off, and no action of any kind was taken. Nearly all the high profile child death inquiries of the past few years concern children under the age of 10. One of the most consistent themes in inquiry reports is the complete invisibility of the child's wishes and feelings. It simply is not right to say that whenever a local authority goes through the Section 47 process and then decides to take action, Section 17 will be triggered or may already have been triggered. Frequently, an assessment under Section 17 is bypassed altogether. It is certainly bypassed in many instances when a child is thought to be seriously and imminently at risk. Even in that circumstance, are we really going to say that when a child is about to be removed from his family home, that child should not be part of the decision making? Of course we do not say that, other than in exceptional circumstances. All the literature emphasises how important it is that the child is spoken to, yet time and again when it really matters, that does not happen.

I know that the Minister is concerned that there should be some discretion open to a local authority. The amendment that I have tabled allows for the possibility that it may be impracticable to speak to a child, in which case there would be no legal obligation to do so. In most cases, where a child's welfare is in question, we ought to be saying that it should be a sine qua non for the child himself to be seen and listened to. That is not a change to the guidance; it is a strengthening of the guidance. I hope that the Minister will reconsider the issue. Out there, I simply do not think that it would be understood if an amendment such as this was not made. I beg to move.

Lord Elton

My Lords, I speak only in order that my silence will not be taken as anything other than absolute agreement with everything that my noble friend has said.

Baroness Walmsley

My Lords, I have added my name to all three of the amendments in this group. The Minister gave us the impression that she feels that the guidance is working well, when we spoke about that on Report. The noble Baroness, Lady Andrews, quoted research into the impact of the assessment framework introduced in 2000, and she said: All the evidence suggests to us that the participation of children in that period has increased and is working well.—[Official Report, 24/5/04; col. 1059.] Unfortunately, the research referred to and published last year only included the views of eight young people. The summary report noted, Their views and experiences, however, mirror previous research findings and suggest that social workers continue to experience difficulty in ensuring children and young people fully participate in decisions that are likely to affect them.

The Minister also expressed concerns about situations in which a child might be in danger, and obviously we all support her in those concerns. She said: Where there are urgent concerns we believe that the child's safety must remain the overriding and absolute consideration and social services, or whoever, need to act and act swiftly. We are concerned to ensure that that is paramount.—[Official Report, 22/6/04; col. 1223.]

Section 47 is not restricted to questions about the child's safety, but whether the child is suffering, or is likely to suffer, significant harm. Where the child's immediate safety is of concern, as the noble Earl, Lord Howe, has just mentioned, the amendment does not prevent a local authority taking immediate action to protect it. As regards Section 17, the Minister also argued on Report that it was likely that many children in those situations would be found to meet the Children Act 1989 definition of children in need and that the amended Section 17 would be applied to them in any case when immediate safety issues have been addressed. Section 17 provides for the provision of services to children in need. A child protection investigation is the decision-making process that comes before the provision of any services to the child. So children will be covered by the Clause 45 amendment to Section 17 only if they are seen to be in need of services. It does not cover the child protection investigatory process itself before the services are provided or help children who are deemed not to be in need. For those reasons, the noble Earl, Lord Howe, and I have retabled the amendment.

Lord Hylton

My Lords, earlier today the Minister pleased the whole House by accepting Amendment No. 19 concerning the emotional well-being of children. Having done so, she will have uphill work in resisting the insertion of the words "and feelings" at this stage.

I draw attention to Amendment No. 42 and subsection (4)(c) which seems to be intended to make sure that proper weight is given to a particular child's wishes and feelings in the light of his age and understanding. That is important, otherwise quite wrong conclusions may be reached. I support the amendments.

Baroness Howe of Idlicote

My Lords, I support the amendments and particularly Amendment No. 42. I have listened to what has been said and read the careful detail in the amendment, and I believe a case is more than made. It has been proved, alas, that there has been failure to record the kind of detailed information from children to obtain their feelings and reactions in private. That is crucial in coming to the right conclusion. I hope that the Minister will be able to accept the proposals.

Lord Laming

My Lords, the problem I have with Amendment No. 42 is that prior to undertaking the Victoria Climbié inquiry I would have thought that this was the core of good practice and that every authority would have ascertained the wishes and feelings of the child in the circumstances and having access to the child unless, as the amendment says, that proves to be neither practicable nor urgent.

The Victoria Climbié inquiry had quite a devastating impact on me because I found it incomprehensible that a child could be referred to so many different services with clear indications of deliberate harm. Not only was the child not properly seen and discussed but she was placed under police protection without having been seen. Then the police protection order was removed without the child being seen. The child was taken to hospital and the person who took her there was not even interviewed. So we have to face the reality of what happens out there sometimes. I live in the hope that that case was the exception rather than the rule, but having gone around the country, I have to say that my level of confidence is not altogether high. Anything that can be done to reinforce what I am sure every Member of the House recognises are basic elements of addressing children's needs in these circumstances must be supported.

Baroness Ashton of Upholland

My Lords, let me begin by talking about Amendments Nos. 40 and 41. I recognise that accepting amendments on the hoof may lead to the noble Lord, Lord Hylton, taking me hostage somewhat for my own behaviour earlier on. That is probably the reason why I was warned against doing things like that. I shall have to face the music later.

As the noble Baroness, Lady Walmsley, indicated, the amendments would add the words "and feelings" to new Section 17. I am grateful for the welcome given to the amendments that we have put forward on "wishes" which I believe the noble Earl, Lord Howe, remarked was one of the four or five most important issues of principle raised when we considered the Bill in Committee.

I understand absolutely the sentiments that lie behind the proposal, and I understand fully that there will be Section 17 cases where a child cannot, or cannot be expected to, articulate his or her wishes. If a child is too young, is suffering from a disturbance or is coming under pressure from a division of loyalties, it may be very difficult for that child to express his or her wishes. As the noble Lord, Lord Laming, said, it is good practice and in accordance with the Framework for Assessment of Children in Need and their Families for an attempt to be made to ascertain a child's feelings.

We have also received legal opinion that is concerned to preserve the distinction between "wishes" and "feelings" as separate constructs, and to have them both expressed in Section 17. It would still be possible of course for a local authority in discharging its duties to consider to what extent it needs to ascertain a child's feelings, and to consider how to factor its conclusions into the decision-making process.

My concern, however, is that by accepting the amendments we would create an unplanned and unintentional inconsistency between Section 17 of the Children Act, which would refer to "wishes and feelings" and Section 20 of the Act, which requires a local authority to ascertain only a child's "wishes" about the accommodation provided for him.

Consistency between Section 20 and Section 17 is very important because they are sometimes considered together as alternative routes for assisting a child. They are both about providing services to children in need. Where a child or member of his family is provided with services under Section 17, which may include accommodation, he does not become a looked after child. By contrast, where the child is provided with accommodation under Section 20, he does become looked after. If we require feelings as well as wishes to be considered under Section 17, it seems to suggest that more investigation of the child's state of mind is required about providing services like home help, cash for beds or school uniforms than is required under Section 20. That is clearly not right.

It is clear to me, therefore, that we must consider carefully any changes to Section 17 because of their implications for Section 20. As noble Lords know, the words "wishes" and "feelings" have very different meanings legally. "Wishes" are what a child wants, or says he wants, while "feelings" are more complex—they are emotions which are not necessarily about what the child wants. At present, the Children Act 1989 refers only to the need to ascertain "feelings" in relation to the decisions made by a court or by local authorities in exercise of their corporate parenting role, but not in relation to specific issues around the provision of particular services.

We need to ensure that we do not upset the balance in the Children Act, which is an effective piece of legislation that has stood the test of time. So I am asking the noble Earl to withdraw his amendment on the basis that we will consider the issue it raises and bring it back in the Commons. We want to do two things: first, we want to find out why in 1989 the Act referred to "wishes" and not "wishes and feelings" because we do not know; and, secondly, we want to ensure that Section 17 and Section 20 do the same. I hope, on that basis, the noble Earl will feel comfortable about withdrawing his amendment. We just have not had time to establish the exact circumstances and we do not want to have two pieces of legislation in the same Bill that do not equate to the same thing.

I turn to Amendment No. 42, which would amend Section 47. Only last week I spent a considerable time talking to representatives of children's organisations who are concerned about this.

I have also spent a significant amount of time talking to our legal team about this, because I know how strongly noble Lords feel about it. Noble Lords know that under Section 47, a local authority is required to make inquiries where there is reason to believe that a child is suffering or likely to suffer significant harm, in order to ascertain whether it is necessary to take action.

Clearly the child concerned should be involved in the decision about what action is taken, and this is made clear in Government guidance. In any case, any action as a result of Section 47 inquiries is likely to be taken under local authority powers in Sections 17, 31 or 20 of the Children Act 1989.

I will not go into all the detail, although I have it all here, but under Section 17 there is a requirement that the child's wishes be taken into account. Under Section 31, a child's wishes and feelings are crucial to any decision that is taken. Under Section 20, a looked-after child's wishes and feelings would have to enter into every decision. We have covered the issue in those three different areas. I have looked carefully at Section 47 and we are certain that this is a potential difficulty for us. Section 47 covers a range of circumstances where we believe that social services and others might—as I said on Report—have to take action without ascertaining the child's wishes and feelings. I recognise that the amendment is not the same as the original provision, which required the child's views to be ascertained unless sufficient information has already been obtained about the child's circumstances, wishes and feelings, and not just about the child.

It may well still be the case that social services or others might take action to secure the child's safety without having any information about their wishes and feelings. We believe strongly—I rarely feel as strongly as I do about these issues—that we have to be clear on this. They must be able to act immediately in these circumstances. I take the point about the tragedy of Victoria Climbié, but she was a Section 17 child before she was a Section 47 child. That was such a dreadful example of systemic failure that nobody asked her at any point. There are lots of points in the process at which she would be asked under the amendments and changes that have already been raised. It is important that we are clear what allowing the amendment to Section 47 would do.

The other example that I discussed with the legal team concerned some of the work being done by the social services as a result of the Government guidance Achieving Best Evidence—for example, as concerns sexual abuse cases. People oeed to take enormous care about interviewing children before the instigation of proceedings which may be criminal proceedings. I should like to give noble Lords an example, although I rarely do so as examples are always difficult. If there were a family of four girls and there was clear evidence of abuse of three of them by a family member, we would argue—I am sure that noble Lords would all agree—that we should take action to secure the safety of the fourth child without interviewing that child about their wishes and feelings in advance.

When legal proceedings are possible great care has to be taken that any interviews are not inappropriate. They must be done at the right time, in a way that does not traumatise the child and by well trained people who know exactly what to do, particularly where criminal proceedings are involved.

I know that those two examples are in extremis, but they are real examples that would be covered by the amendment. That is why we should not pass the amendment. I accept that in all the other parts—Sections 17, 20 and 31—the issue is important, and I also agree that wherever possible it is still important that we do this in advance and that we certainly do it once a child is removed from danger. However, the amendment would affect the two specific cases I have described and I urge great caution because I believe that that could lead to something that no noble Lord wants.

My final point is about the phrase "in writing". We do not believe that it is sensible to put that provision on the face of the Bill. Most social services departments are moving to electronic recording systems for recording the child's wishes and such a system would not count as writing. Also, social workers and others involved with children might be visually impaired and would not record a child's wishes in writing. We should not put that kind of absolute requirement on the face of the Bill.

I hope that with what I have said about wishes and feelings and my undertaking to take that back, and the strength of my feelings about Amendment No. 42, noble Lords will feel able to withdraw the amendments.

6 p.m.

Earl Howe

My Lords, I thank all noble Lords who have spoken in this important debate. As regards Amendments Nos. 40 and 41, I hope the Minister will forgive me for saying that the explanation she gave for resisting them might to many people seem technical and legalistic. But, having said that, I welcome her assurance that she will take steps to investigate the apparent disparity in the Children Act and ensure that the issue will be debated in another place when the Bill reaches there.

I understand that one possible reason for the disparity is that under Section 20 of the Children Act a child automatically becomes looked after, and under Section 22(4) the scope of that provision relates to all looked after children. There is a point to that difference because Section 22(4) refers to "wishes and feelings".

As to Amendment No. 42, I am still troubled that, in an active process of inquiry involving social workers going around and talking to as many relevant people as possible about a child before reaching a conclusion, the one person lying at the centre of the whole exercise will not be consulted. I return to what I said earlier about how critical it is in the vast majority of cases to ensure that children are involved in decisions about whether or not action is taken. Seeing them and listening to them may result in a very different outcome from the one that the professionals would otherwise have in mind. The amendment allows for the discretion referred to in the examples given by the noble Baroness because it contains the words "reasonably practicable".

Perhaps I can press the Minister to go as far as she did with Amendments Nos. 40 and 41. Even if she cannot accept the amendment as it stands—I recognise that the requirement to record in writing a child's wishes may be a defect, but it is a point of detail—more important is the point of principle. I am grateful to the noble Lord, Lord Laming, for supporting that point of principle. If the noble Baroness is able to say to me that she and her colleagues will look again at the principle of putting something on the face of the Bill, with the exceptions and with the discretion that she feels appropriate—I understand the examples that she gave in hard cases—I will know better what to do with the amendment. With the leave of the House, perhaps I may ask the Minister to comment on that.

Baroness Ashton of Upholland

My Lords, we have no difficulty with the principle behind what the noble Earl, supported by the noble Baroness, Lady Walmsley, seeks to do. As far as possible, we want children always to have their wishes, feelings and views taken into account. The difficulty is that if we translate that into law on the face of the Bill we have to take care that there is not an unintended consequence.

I am more than happy to take the matter away, look at it again and pass the views expressed back to my right honourable friends the Secretary of State and the Minister for Children. I merely add the caveat that we were not able to find a suitable vehicle with which to do this, but we shall look again with great pleasure.

Earl Howe

My Lords, I am grateful to the Minister. In the circumstances, I do not believe that I can ask her to do more. It would not be appropriate to press the amendment in this form. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 41 and 42 not moved.]

The Earl of Listowel

moved Amendment No. 43:

After Clause 46, insert the following new clause—

"DUTY OF SCHOOL GOVERNING BODY IN RELATION TO PUPILS WHO ARE IN PUBLIC CARE

The governing body of a community, foundation or voluntary school or a maintained nursery school shall secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who are in public care."

The noble Lord said

My Lords, first, I thank the Minister for her earlier assurance that there will be an amendment relating to the commissioner's responsibility for children in care and care leavers. That matter requires more thought at the current stage. I take comfort from the fact that, although young offenders will not be included in his remit, at least he will be able to look at the 30 to 40 per cent of young offenders who come out of care and decide to make a report about their experiences.

My amendment would put a duty on the governing body of a school to ensure that the teachers in the school were aware of the importance of identifying and providing for registered pupils in public care. The role of the designated teacher was established in the guidance published in 2000. It is the designated teacher's duty to liaise with the local authority and support other teachers in the school. I would like to quote from the guidance. On page iii, it states: Primary legislation will be needed to place complementary duties on LEAs and schools, and to give statutory force to paragraph 5.34. Paragraph 5.34 states: To summarise, schools should designate a teacher to act as a resource and advocate for children and young people in public care The Government made a commitment at that time to put the role of the designated teacher into statute: that commitment has not yet been fulfilled. The point was raised at the last stage of the Bill, but no answer was made. I hope that the Minister will explain what has become of that commitment.

The role of the designated teacher is important but, unfortunately, in the Government's report A better education for children in care, evidence about the impact that they have is mixed. Some schools allow non-contact time for designated teachers to liaise with other agencies and attend planning and review meetings. Elsewhere, designated teachers have few or no additional resources and can struggle to reconcile their different roles, particularly where they have to combine teaching and advocacy functions. There is an inconsistency in practice in this vital role.

Noble Lords who attended a meeting last week with practitioners and a researcher who has just published research after three years working in this area will have been impressed by the concern about the inconsistency in practice of designated teachers and personal education plans. This is a serious concern. The noble Baroness, Lady Byford, has expressed a concern that we must not single out one group of children in the Bill. It is a Bill for all children. But this is a special group of children, and it is allowable to single them out. Even so, I urge her to consider that the Government have made a commitment here already. I hope that she will be able to think about that matter. I welcome the sympathetic tone of the response given to a similar amendment in Committee. I recognise the difficulty with this matter.

The designated teacher—what a role it is! The designated teacher is told that a child is in foster care or a children's home; her job is to advise other teachers in the school of that information. That is such sensitive information. How would a child in care feel if it was not used sensitively? One of the concerns is that designated teachers should be senior teachers, but often they are not. They should be well trained, but often they are not. They should have time to meet with local authority representatives, but often they do not.

From my own small experience of assisting a teacher in a school, I remember a young man who kept on sticking his hand up every time a question was asked, and shouting out before any other child answered. It was very frustrating and annoying. Perhaps if it had continued, I would have grown increasingly frustrated and thought how to move the child out of my class. But I met the boy's family, and what came through at our meeting was quite clear. He had grown up without much contact with his father and was rather keen to get my attention, as one of the few men in the school. Later on he started making gifts to me, which was very charming.

It is so important to understand the other side of the equation. That is the role of the designated teacher—to ensure that there is good communication between the local authority and the school. It is a crucial role.

The number of exclusions of children in public care is 10 times higher than for other children. But for a child who has been in care briefly, the number of exclusions is 20 times higher. It is so important to intervene early to prevent such experiences. I draw noble Lords' attention to a recent report from Her Majesty's Inspectorate of Prisons, Juveniles in Custody. This is the first time a representative sample of the under-18 prisoner population has been systematically consulted concerning their treatment in England and Wales. Some 83 per cent of boys and 65 per cent of girls had been previously excluded from school. Furthermore, 37 per cent of boys and 43 per cent of girls had previously spent time in either a care or foster home, or both.

I shall not go into the Social Exclusion Unit report, as I recognise the time constraints upon us. I am very concerned, however, that the Government are moving in this direction. Over the last four or five years that performance targets for looked-after children have been issued, quite specific bench-marks have been set for how we will improve the educational attainment of those children. For instance, the proportion of those aged 16 who get qualifications equivalent to five GCSEs grade A to C should have risen, on average, by four percentage points each year since 2002. In all authorities, at least 15 per cent of young people in care achieve this level of qualification.

Just this week, a new performance target has been issued to narrow the gap in educational achievement between looked after children and that of their peers, and improve their educational support and the stability of their lives so that by 2008, 80% of children under 16 who have been looked after for 2.5 years or more will have been living in the same placement for at least 2 years, or are placed for adoption. That is a very laudable aim, which it is important to achieve. But I am reminded of what I used to come across when I visited children's homes. The staff would say that a child had so many problems that they could not expect that child to engage in school and would just look after him or her there. There is an awful lot of truth in that.

The Government have made a mistake in the past in terms of underestimating the difficulties that many of these children currently experience because of their past histories, and the instability in their lives. But it is not either-or, it is both-and. It is both providing the stability in their home environment and foster care environment and providing encouragement and support in school. In that regard I am very concerned that the Government are stepping back.

I am concerned to see the implementation take place of the tools that are so valuable. Placing a duty on the governors in this fashion would be the best way. We cannot make absolutely certain that it will happen, but it is the best way. I have spoken to many governors about this and they have been sympathetic on the matter. I have taken much advice from a governor of 18 years' experience, who is also a teacher.

We need to ensure that the educational experience of these children is the best. The Government should fulfil their commitment. I look forward to hearing from the Minister how they intend to achieve that. Such children are special, but their outcomes are appalling; we could do more to achieve better outcomes for them. The tools are there but we need to see that they are implemented. I beg to move.

6.15 p.m.

Baroness Sharp of Guildford

My Lords, my name is attached to this amendment and Amendment No. 44 stands in my name and that of my noble friend Lady Walmsley. It is an alternative format for the same issue.

Briefly, I shall explain why we support one and propose the other amendment as a possible alternative. Section 21 of the Education Act 2002 requires each school governing body to conduct the school with a view to promoting high standards of educational achievement within the school. Governors already have a responsibility under Section 317 of the Education Act 1996 to make special educational provision available for students with special educational needs. That includes a duty to ensure that teachers in a school are aware of the importance of identifying and providing for pupils with special educational needs.

Recently governors have acquired a new duty under Section 175 of the Education Act 2002 which requires them to safeguard and to promote the welfare of children. Amendment No. 43, which we support, seeks to enhance that power in relation to children in public care because, as the noble Earl has explained, schools often fail to recognise their responsibilities to looked-after children under this section of the 2002 Education Act.

Amendment No. 44 goes one step further and asks that schools take account of the social needs of pupils by providing a non-inclusive list of social needs. An amendment similar to Amendment No. 43 was tabled at Report stage. The Minister correctly pointed out that children in public care come with a continuum of need and, therefore, the amendment could require schools to do something for children when at least some of them did not need such attention.

The Minister also pointed out that the Government's plans for individualised learning should meet the concerns that we expressed. She said that, our concern is to ensure that we recognise that looked-after children in schools need additional support; that they get the support appropriate to their needs, not their category; and that we support all of our schools in developing, for their own governing bodies, the kind of policies appropriate to the population of children that they have.—[Official Report, 22/6/04; col. 1215.] It is likely that children in public care who achieve the highest academic qualifications do so with a great deal of understanding and support from their schools. Most schools will attempt to provide that support without being told to. This amendment makes it clear that the few schools that do not do that will be told to do so.

The Minister also pointed out that it would be wrong to single out children in public care as in need of special attention. The amendment attempts to meet those concerns by including this non-inclusive list of social needs of which schools should take account. The Government claim to have brought together various support services to help children under the overall objective stated as follows in last week's five-year plan: every child gets the best possible start in life—with integrated services focused on the needs of parents and children, not chopped up according to provider. Has Parliament, through legislation, backed that admirable objective? The amendment is needed to ensure that schools recognise all the needs, including the social needs of children. It would ask schools to recognise that a pupil's educational achievement can be affected not only by his special educational needs but by his special social needs.

Children often come to school frightened because they do not know when they are going to see their parents again. They come to school having just lost a beloved grandparent. They come to school from an overcrowded house. They come to school after having been in the country only a couple of weeks. Those children are not going to fulfil their potential. Schools can do much to help them, not least because they have more contact with the school than any other agency. Schools which are fully participating in the co-operation arrangements under Clause 7 will know how to get the additional services required to help those young people achieve and lead fulfilling lives. Those are the reasons why one or other of the two amendments is needed.

Baroness Howe of Idlicote

My Lords, my noble friend Lord Listowel is almost in the same category as my noble friend Lord Northbourne in his dedication to looking after children. Many of us in your Lordships' House would pay great tribute to him for that.

In addition to supporting his amendment, I have great sympathy also with the more broadly based Amendment No. 44. Although I understand fully the concerns that have been expressed about overloading the teachers and the governing bodies, in the specific case of looked-after children, an important extra point should be made. In such cases, the local authority is the corporate parent of such children. Whether the children are in residential care or are looked after by a foster parent, it is still the local authority which is the parent. Therefore, since the children spend a great deal of their time in the school environment, a special, extra duty should be placed on the governors of that school to see that teaching and support bring the best out of such children and unleash their real talents.

We should not forget the appalling figures. Twenty-seven per cent of looked-after children have special education needs, in contrast to only 3 per cent of all other children. Only one in 100 children goes on to university, whereas one in three of the rest of the child population does so. That is a clear indication of the need for extra support for the emotional well-being of children who are inevitably under stress because of a broken home background or whatever.

There is great support for the amendment from the Local Government Association. It regards the issue as vital. Alison King, who chairs the social affairs and health executive of the Local Government Association, supports the amendment and regards the whole issue as vital. Although I gather that the National Governors' Council was a little concerned about over-burdening governors, it too acknowledges that many governors perhaps did not know about the lack of achievement of looked-after children. For all those reasons, I hope that it will be possible to do rather more. I fully acknowledge that the Government have the issue very much in mind and have set a number of initiatives well under way. However, to extend the duty to governors would spread the burden a little and move the process more quickly on.

Lord Northbourne

My Lords, I shall be brief. We should ask two questions: first, is it right to single out children in care? In spite of the seductive reasons for including all kinds of other children, it probably is right that they are a very special case. The other question is whether schools wish to have that job imposed on them. My point is that responsibility for children in care lies with local authorities. Yes, they should work through schools but, yes, they should jolly well pay for it.

Baroness Howarth of Breckland

My Lords, I have a different view. I pay real tribute to my noble friend Lord Listowel, who spoke so well for children in care. I want to make three brief points. First, talking to the director of children's services in CSCI has made it clear that not all children want to be identified in school as being in public care. If we are ascertaining the wishes and feelings of children, we must listen. I am rather concerned that this is a blanket arrangement.

On assessments, it is crucial that when a child is in need, the local authority should take proper action—it should currently be doing that—to talk to the school about the child's needs and to ensure that the proper, designated teacher takes the appropriate action. I understand absolutely what my noble friend Lord Listowel said.

A real issue is involved with Amendment No. 44; that is, how one would specify which children would be brought forward. Procedures are already in place but I am unsure whether they are being properly carried out. Will the Minister consider whether there are other ways in which that could be done? I have tremendous sympathy with the general thrust of the proposal but I am concerned that it will gather in children who would prefer not to be gathered in.

Lord Elton

My Lords, proposed new subsection (2) in Amendment No. 44 returns us to asylum seekers. I still have difficulty accepting the most unfortunate decision that the House made on Amendment No. 21 on the inclusion of the children of asylum seekers in the protection of certain parts of the legislation. Anything that we can extend to them at a later stage is to be welcomed.

I also want to leave a thought in the Minister's mind for her journey to the other end of the corridor, although it may not be a complete remedy to what we have so far decided in this regard. The Minister is looking very puzzled. I hope that when she reads Hansard she will understand what I am driving at. The exclusion could be limited. The argument that she advanced against the proposal of my noble friend Lord Howe was that judicial review under the provisions could be used by the parents of children to delay orders for their own repatriation. I want her to consider the possibility of making such proceedings subordinate, if that is the right word, to repatriation proceedings so that they could not be used in that case.

I see from the Minister's face that there will be no reply to that from the Dispatch Box this evening. I am quite content for her to reply later. I wanted to utter a friendly word on the amendments and I will leave that thought with her.

Lord Dearing

My Lords, when the Minister spoke on Report on this amendment, the logic that she adduced for not accepting it was persuasive; that is, that we must care for every child as an individual and not by category. The noble Earl, Lord Listowel, referred to the fact that exclusion is 10 or 20 times more likely, and that 30 to 40 per cent of young offenders have been in care. We should also bear in mind the fact that the amendment seeks only to require governors to see that teachers are aware that such children are in their care. That is not asking a great deal. Given the damage that is done to their lives through insufficient care, there is a special case in this regard.

6.30 p.m.

Baroness Ashton of Upholland

My Lords, I am very grateful to everyone who has spoken on this matter. I agree with what noble Lords have said about the tenacity of the noble Earl, Lord Listowel. I believe that he and I have met 11 times outside the Chamber during the passage of the Bill to discuss this matter. I am enormously grateful for the amount of time that he has devoted to doing that.

The two amendments in this group try to address the needs of what we recognise is an extremely vulnerable group of children. The issue before us is twofold. First, is this the right way to tackle the matter? Secondly, is this the way to make a difference in those children's lives so that we can all go home and feel comfortable that we have achieved something? Alternatively, do we need to consider whether legislation is always the answer to some of the questions that have been raised? I argue that the way in which the Government approach the matter demonstrates our commitment to this very vulnerable group of children whose educational achievements and life chances constitute a scandal. What one puts on the face of legislation must constitute a crystal clear way of addressing the issue.

I shall not reiterate everything that I have said previously in the House or in discussions elsewhere. We take very seriously the report of the Social Exclusion Unit, which firmly stated that the critical relationship was with the corporate parent. The corporate parent needs to do what we hope every parent does for their child, which is to ensure that they get back-up and support in education. We all know that educational attainment and achievement are still too much determined by the kind of background that one has. If children do not have a supportive environment with opportunities to learn and to use computer equipment and so on, they can be disadvantaged. We believe it is critical that we make it absolutely clear where the responsibility lies and do not shirk it or shuffle it off elsewhere.

The noble Earl and I met with a group of young people who were either in care or leaving care. They mentioned the critical word that we have incorporated into our PSA target; namely, stability. What they really want is stability. Often that translated for the older ones into the kind of accommodation that they would obtain. As we have seen on some BBC programmes featuring looked-after children, stability for them constituted not carrying their possessions around in black plastic bags but having the stability that is their due. Stability is critical because without it children cannot acquire educational attainment. We can demonstrate that we have taken this issue extremely seriously.

I turn to Amendment No. 44 tabled by the noble Baroness, Lady Sharp. I know that she did so in a helpful spirit. However, we are back to my favourite word of "list" which I have not used yet on this Third Reading. I know that the noble Baroness will recognise the difficulties that a list engenders. Immediately I thought of Traveller children who constitute a very particular group of children who need additional support. They often have instability in their lives and often do not get the support that is needed to help their educational attainment, not least because they travel. I think also of young carers—a group that we have discussed previously in your Lordships' House—who have an average age of 11. They desperately need support. However, as I believe the noble Baroness, Lady Howarth, will recognise, young carers often do not want to be recognised as such. They fear bullying and being asked questions about their parents, perhaps because the parent has a mental health problem.

I do not want any list ever to appear in a piece of legislation that might make a disadvantaged child less likely to get the attention and support of a school. The only way for them to get that attention and support is to make sure that every child matters and that every child in every class in every school is important. That is the critical line that I cannot cross because I consider that it is so important. It is also important that we recognise a school's capacity, that we ensure that we support schools effectively and that we seek to do things as efficiently as we possibly can.

The noble Earl referred to designated teachers. I accept absolutely what he said about there being more work to be done in that regard. We want to make sure that designated teachers work effectively but that does not mean that we do something else instead; it means that we ensure that we give them the necessary support. I agree with much of what the noble Earl said in that regard. He introduced me to the gentleman who had done the relevant research who had much to say about ensuring that the training that is given is pitched at the right level and that appropriate support is given.

I undertake to ensure that the guidance we send out on the duty to promote the educational attainment of children will reinforce the importance of giving governors and teachers the right kind of advice and training to support looked-after children. That guidance will go to local authorities.

We are pursuing the recommendation to provide guidance on the kind of questions that governors could raise with their schools about the education of looked-after children. We will link that guidance with the guidance on Clause 44. We are taking forward the recommendation on the Teacher Training Agency for best-practice materials to help the education of looked-after children, making sure that all teachers are aware of how the care system operates and understand the particular needs of children in care. That work will build on the existing teacher training guidance, which already makes it clear that teachers, are expected to have a professional commitment to raising the educational achievement of all their pupils, whatever their background.

I agree with what was said by the noble Baroness, Lady Sharp, about personalisation being critical. We believe that we have the position right. The corporate parent must take responsibility and do it properly. We will look at the guidance and do what I have undertaken to do. With that reassurance, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Listowel

My Lords, I thank the Minister for trying to assuage my concerns, and for spelling out how she will ensure that practice is reinforced in this area. That will clearly be helpful and improve what is being delivered currently.

My noble friend Lady Howarth raised a very important point about the sensitivity of the information and how children in care may not wish the school's people to know their background. When the department was working hard to develop the guidance, it thought about that issue carefully and came to its conclusions after a lot of consideration. The question is extremely difficult. I can tell her that an awful lot of thought has gone into preparing the guidance on the subject. A very careful balance has to be struck. The same is true of the information-sharing on the database. Partnership working between the school and the local authority is so sensitive and needs so much thought, but that thought was undertaken. The conclusion was that there should be a designated teacher, but a senior and well trained teacher. Unfortunately, that is not the case consistently enough. I recognise the significance of what she said, however.

I welcome what the Minister said, and will have to take it away; I detect that there might not be much progress if I sought to press the amendment. I absolutely agree with what she said about the corporate parent. It is the local authority, as my noble friend said, but there is a partnership also. We are discussing a Bill that enshrines new means to encourage partnership working. It is vital that schools and local authorities work together. One in four children is placed out of their local authority. It becomes very hard for the local authority to keep in touch with its child, so in practice what the school does is very important. I will continue to raise the issue with the Minister, and I am sure that she will continue to raise it with me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

Clause 52 [Interpretation]:

Baroness Ashton of Upholland

moved Amendment No. 45:

Page 33, line 29, after "means" insert ", subject to section 2(10),"

On Question, amendment agreed to.

Clause 54 [Commencement]:

Baroness Ashton of Upholland

moved Amendment No. 46:

Page 35, line 15, at end insert— ( ) section 49 comes into force at the end of the period of two months beginning with the day on which this Act is passed;

The noble Baroness said: My Lords, I shall be very brief. These are technical provisions consequential on the agreement of an amendment in your Lordships' House on Report. Section 49 is the new clause on reasonable punishment. Amendment No. 46 proposes that the section come into force two months after Royal Assent, in accordance with the accepted convention. Amendment No. 49 reflects the new clause in the Long Title. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Children's Commissioner]:

[Amendment No. 47 not moved.]

Baroness Sharp of Guildford moved Amendment No. 48: After Schedule 1, insert the following new schedule—