Lords Sitting of 17 June 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Sheffield): The CHAIRMAN OF COMMITTEES on the Woolsack.

NHS Dental Services
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
Whether National Health Service primary care trusts are obliged to make National Health Service dental treatment available to all patients resident in their catchment areas; and what obligations they have to provide such treatment to non-resident patients.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, currently, primary care trusts are required to make arrangements for the provision of dental services only where a general dental practitioner on their list has agreed to provide dental treatment and appliances to a patient. The Health and Social Care (Community Health and Standards) Act 2003 gives primary care trusts the new duty to provide or secure the provision of primary dental services in their area, to the extent that they consider necessary to meet reasonable requirements. That brings dentistry into line with NHS medical services. We will be implementing this new provision, which goes wider than residence of an area, alongside a new contract, which we are currently discussing with the dental profession.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that Answer. From what he said, there seems no longer to be an obligation on the National Health Service to provide national health dentistry. The term with which he replied—"in so far as they see it appropriate", or something of that type—was very qualified. What can he assure me will happen, because dentists have still not seen the proposed new contract to be introduced next April? What does he propose will happen and how much better access does he think that patients will have to NHS dentistry?
Lord Warner: My Lords, I can tell the noble Baroness that we would not have proposed and passed the legislation if it was not going to lead to an improvement in the provision of NHS dental services. The new provisions will enable PCTs to commission dental services appropriate for their area, whereas at present they are reliant on the number of dentists that happen to be in the area to provide particular services. So that will be a strengthening of the position. As the noble Baroness knows, we have been consulting the dental profession on framework proposals for the new contract. The profession has expressed a number of concerns, although I believe that it likes the general
860
direction of travel. We are considering its comments, and my honourable friend Rosie Winterton will make an announcement shortly.
Lord Dearing: My Lords, I hear that there is a shortage of dentists. Is the Minister aware that the shortage of suitably qualified academic dentists means that it is difficult to increase the number of dentists coming forward? What proposals do the Government have to respond to that situation?
Lord Warner: My Lords, the Government were faced with the closure of two dental schools under the previous administration.
Noble Lords: Oh.
Lord Warner: My Lords, I understand that Members on the Benches opposite have a kind of collective amnesia about some of these things and do not like to be reminded of them, but I feel that I have a public duty to remind them from time to time.
As I was saying before I started to enjoy myself, the Government have increased the output of existing dental schools during their time in office. They recognise that there are issues about academic provision, as there are in medical schools, and they are doing their best to strengthen those arrangements.
Baroness McFarlane of Llandaff: My Lords, what is now the average waiting time for a child to have extractions under general anaesthetic? Has that time been lengthened because anaesthetists must now have paediatric training?
Lord Warner: My Lords, I will have to write to the noble Baroness because I do not have those details at my fingertips.
Earl Howe: My Lords, is the Minister aware that the continuing uncertainty about the dental contract is causing a great deal of disquiet in the profession? When will the Government provide details of the new base contract and make clear to dentists the patients for whom they will be expected to be responsible?
Lord Warner: My Lords, I sometimes feel that we are damned if we do and damned if we don't. We have gone through a process of consultation with the dental profession. It has expressed concern about some aspects of the framework proposals. We are considering its concerns, which is the right and proper thing to do. The Government will respond to the dental profession and the public as quickly as possible when we have considered those concerns.
Lord Clement-Jones: My Lords, I hear what the Minister has to say on that subject, but we are only nine months away from when dentists are expected to implement that contract under PCTs. The Government still do not appear to have made available details of not only remuneration but other aspects of the contract, yet dentists are expected to invest in their practices to

861
conform to the new contract and arrangements. Is there not a case to be made for postponing the coming into effect of those arrangements?
Lord Warner: My Lords, I take cognisance of the noble Lord's remarks, but we are working with primary care trusts to prepare them to take on their new dental responsibilities. They will be able to build on their recent experience of implementing the new contract for GPs so successfully. PCTs and dentists are already coming to us because they want to try out the new arrangements now, but we must first conclude the discussions with the British Dental Association, which wanted indefinitely to postpone this set of changes, to which we do not agree. In December, 20 practices wanted to proceed. There are now more than 400.
Baroness Gardner of Parkes: My Lords, does the Minister agree with the BDA that there are 30,000 registered dentists, which represents 11,000 high street practices? When the new proposals are introduced next April, at least 4,000—possibly as many as 5,000—extra dentists will be required. In view of his answer to the noble Lord, Lord Dearing, what can be done to provide extra dentists? Where will he find them?
Lord Corbett of Castle Vale: Australia.
Lord Warner: My Lords, like the noble Baroness, I am sure, I am always pleased to have suggestions for recruiting Australian dentists.
We are considering a range of measures to expand the dental workforce. We have expanded the number of places for dental therapists and about 650 are now registered. They make a contribution. I remind noble Lords that, on international comparisons, the number of dentists in this country is pretty well in line with those in western Europe and the USA.

Civil Service Draft Bill
11.7 a.m.
Lord Sheldon Lord Sheldon asked Her Majesty's Government:
When they propose to publish a draft Bill on the Civil Service.
Lord Bassam of Brighton: My Lords, the Government are committed to publishing a draft Civil Service Bill for consultation in this parliamentary Session.
Lord Sheldon: My Lords, I welcome the reply from my noble friend, but it is three years since the Government were firmly committed to a Bill. So there has been some obvious reluctance. Will the Bill remove the situation where some special advisers are more powerful than many members of the Cabinet? Will there be specific
862
legislation on the role of special advisers—not just Orders in Council, which Parliament can only accept or reject? Parliament must be able to consider and decide on what those powers should be. Does my noble friend accept that the Civil Service should not be the property of the Government; it should be the property of Parliament on behalf of the people of this country?
Lord Bassam of Brighton: My Lords, I am sure that we all readily agree with the last point. Returning to my noble friend's initial questions, the answer to his first question is that, as I understand it, there is no intention at present to limit the number of special advisers with executive powers. It is the case that there is only one in the Government's employ; that will remain the case. As for the general issue of special advisers, we have had some useful discussion and debate in your Lordships' House recently—indeed, very recently. We are intent on consulting on that through the draft Bill which, as I said, we will introduce during the current parliamentary Session.
Lord Peyton of Yeovil: My Lords, is the noble Lord aware that both his noble friend and the Question that he asked deserved a great deal more than the rather cursory reply that was all that the Minister could manage in the first instance? The noble Lord has today confirmed the impression that the Government do not regard this subject as urgent or important, but as something that can be easily brushed off. If the noble Lord does feel like that, I hope that he will soon correct his view.
Lord Bassam of Brighton: My Lords, it is not something that we take lightly. We take this matter very seriously, and we have had some useful and valuable discussions in your Lordships' House about the Civil Service Bill in draft form. Questions have been raised by the noble Lords, Lord Lester and Lord McNally, who asked an interesting question the other day about the Phillis review. We dealt with many of these issues. We do not take the matter lightly, and it is not something that we dismiss.
I remind the noble Lord that his party was in government for 18 years, and it chose to take absolutely no action on this issue at all. We are committed to consultation and, as I have made plain, we intend to bring forward a draft Bill for consultation in the current parliamentary Session.
Lord McNally: My Lords, I have considerable sympathy for the Minister having regularly to come here and play the dead bat on these questions. Does he agree that the real problem is where it has always been, in No. 10 Downing Street, with a Prime Minister who has consistently resisted permanent secretary advice to bring in a Civil Service Act? Will he send the message back to the Prime Minister that any hope of restoring

863
trust in himself and his administration relies on him carrying through the purge of spin in his Government that was recommended by Phillis? That will take place only if civil servants are given the protection that only a Civil Service Act can provide.
Lord Bassam of Brighton: My Lords, I listened carefully to what the noble Lord said in your Lordships' House today, and I listened carefully to what the noble Lord said a couple of days ago when we were debating the Phillis review. I rather thought that the noble Lord, Lord McNally, thought that the Phillis review was valuable. He congratulated the Government on our work in that regard. I made it plain then, as I have done on previous occasions, that we are committed to implementing the Phillis review, and we have made some steady progress in that direction.
As to the Prime Minister's view, it is clearly not for me to tell the Prime Minister what to do; that would be quite wrong. The Prime Minister made an important speech earlier this year on the Civil Service, and I thought that the speech was admirable for its radicalism and its commitment to the Civil Service. It made plain this Government's commitment to the values of the Civil Service and the important, impartial way in which the Civil Service operates. All Members of your Lordships' House have signed up to that, and it is something to be cherished and valued in public life in this country.
Lord Hurd of Westwell: My Lords—
Lord Cope of Berkeley: My Lords, does the Minister recognise that this Government have politicised the Civil Service by the introduction of huge numbers of special advisers and by the positions that they have been given, in charge of civil servants in some cases? That is what is causing a lot of the trouble. In order to try to reassure my noble friend Lord Peyton, and others who are concerned about the Government dragging their feet over this, will the Minister tell us not only when we will have a draft Bill—in this Session, he says—but when we will have a real Bill?
Lord Bassam of Brighton: My Lords, we are committed to a draft Bill. I will not be making an announcement as to when we will have a "real" Bill in your Lordships' House. That would be quite wrong, as it would be prejudging what might be in the Queen's Speech. Our Government have clarified the position of special advisers. The noble Lord admitted to having been one himself. I am not sure whether in those days it would have been made clear what the roles and responsibilities of special advisers were. It was not until this Government came into office that model contracts and a code of conduct were issued, so that there were greater lines of demarcation and clarity about the role of special advisers in government.
Lord Hurd of Westwell: My Lords—
Lord Lester of Herne Hill: My Lords, in the passage of my Bill through this House, the noble Baroness, Lady Prashar, made the important suggestion, which seemed to find some favour, that there should be a Joint Select Committee of both Houses, which might consider both the Government's draft Bill and the Bill passed by this House as well as the Bill introduced in the other place by Tony Wright's committee. Can serious consideration be given to that notion, so that the matter can be properly considered with all these issues properly debated and scrutinised?
Lord Bassam of Brighton: My Lords, the noble Lord invites me simply to confirm what I have said before. We will give consideration to that valuable suggestion. I am most grateful to the noble Lord for repeating it today, because it gives me the opportunity to repeat our commitment to giving that consideration.
Lord Hurd of Westwell: My Lords, has the noble Lord not actually, while appearing to shuffle forward, taken a step backwards today? In his original Answer to the noble Lord, Lord Sheldon, did he say that the Government have decided not to include in the proposed legislation any measures to limit either the number or the scope of the powers of special advisers to whom executive powers are given?
Lord Bassam of Brighton: My Lords, I thought that I was fairly clear in saying that we were obviously going to consult through the draft Bill on the position of special advisers. I also made it plain that we had no intention to limit the number of special advisers with executive powers. I have made that position plain before.
Lord Armstrong of Ilminster: My Lords, on that last point, the greatest possible assurance would be given to civil servants about the Government's commitment to the values of the Civil Service if the Government were to withdraw the power of special advisers to exercise executive or directorial powers over career civil servants. The Minister appeared to suggest that as there was only one of them, that was only a little baby, and we did not need to worry about it, but it is the principle that is involved. I do not know how much use is made of that power by the one individual concerned. I sincerely ask him—will he look at this in earnest? As a sign of good intent, to remove that power would be one of the best things that the Government could do.
Lord Bassam of Brighton: My Lords, obviously I hear what the noble Lord says. His advice and guidance on these matters is greatly respected by your Lordships' House and has been greatly respected by this Government and previous governments. Clearly, the role of special advisers is taken seriously, and we will consult on it through the draft legislation.
Lord Tordoff: My Lords—
Lord Davies of Oldham: My Lords, I am sorry, we need to move on.

Tobacco Growing: EU Subsidies
11.17 a.m.
Lord Renton Lord Renton asked Her Majesty's Government:
Given their intention to take steps to reduce smoking in the United Kingdom, why they continue to support European Union subsidies towards the growing of tobacco.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the tobacco regime was in place when the UK joined the European Community in 1973. UK governments have never supported the regime and have constantly pressed for its discontinuation. We are now in a situation where agreement was reached at the Agriculture Council in April this year to end direct support for tobacco from 2010.
Lord Renton: My Lords, while thanking the Minister for that reply, why is it that this year our taxpayers must pay £88 million towards subsidising the growing of tobacco in the European Union? Is this not a typical example of applying a policy for the whole of Europe that could and should affect only part of it?
Lord Whitty: My Lords, I largely agree with the noble Lord. We disapproved of this when we joined the European Union, but it was part of the common agricultural policy at that point. Successive governments have tried to change it, and we have now succeeded under this Government, although not as quickly as we would have liked. The agreement reached in April in principle decouples payment to tobacco growers, but the compromise is that the tobacco producers can recouple 60 per cent of it until 2010. From 2010, there will be no incentive to grow tobacco in Europe.
Lord Hoyle: My Lords, does my noble friend agree that it would be far more sensible to give these people generous settlements and so get rid of this inefficient, unnecessary and unwanted tobacco growing?
Lord Whitty: My Lords, in line with the radical changes in the rest of the common agricultural policy, the agreement is to decouple and to move to a single farm payment. After 2010, the ex-tobacco growers will receive 50 per cent of what was previously the tobacco subsidy in terms of a single farm payment unrelated to a particular crop and therefore not an incentive to grow tobacco. That is the way in which we have dealt with it for other crops under the CAP, more or less. A single farm payment that allows farmers right across Europe to decide what to grow, rather than tying it to a particular crop, will also from 2010 apply to tobacco.
Lord Palmer: My Lords, can the Minister inform the House whether this tobacco is consumed? If my figures are correct, only about 2 per cent of the world production of tobacco comes from the EC.
Lord Whitty: My Lords, the percentage is slightly higher than that. Total tobacco production is getting on for 6 per cent of world production. Of course, that means a vast amount of tobacco that is consumed in this country and the rest of Europe is not grown in Europe under this subsidy regime.
Baroness Byford: My Lords, first, can the Minister tell us the total figure for tobacco subsidies? Secondly, why is there the delay between 2004 to 2010? That seems to be a huge period of time. Will the subsidies be tapered—reduced—over that time?
Lord Whitty: My Lords, as I was explaining, the subsidies will be decoupled but then recoupled up to 60 per cent. So, in that sense, it will be reduced up to that period. From 2010, there will be no relationship between any subsidy going to tobacco growers and the growing of tobacco.
As regards the total spend, I shall have to write to the noble Baroness because I do not have my glasses on—this is in 10 point type. The sum is about 600 million or 700 million euros, but I shall confirm the exact figure subsequently.
Lord Jopling: My Lords, is it still the case, as it was a few years ago, that a good deal of the subsidised tobacco grown in Europe has no known demand anywhere in the world?
Lord Whitty: My Lords, I think that is largely true and another absurdity of this situation. It is quite apart from the absurdity of us continuing to subsidise a crop that causes severe health damage across Europe. The fact that much of that tobacco is not particularly popular even among smokers in Europe or elsewhere is another dimension to something that we are now, at last, bringing to an end.
Lord Weatherill: My Lords, is it not bonkers to give a subsidy to grow tobacco, then to tax people for smoking it and tell them that they will die if they do?
Lord Whitty: Yes, my Lords. As the noble Lord said, it is "bonkers". It has been bonkers for the past 30 years. At last, we have come to an agreement which, eventually, in six years' time, will end that particular madness.
Lord Biffen: My Lords, does the existence of a European constitution enable the date of 2010 to be brought forward?
Lord Whitty: My Lords, theoretically probably, but it has very little to do with the constitution. This is a longstanding and rather grinding process of decisions under the common agricultural policy.
Lord Berkeley: My Lords, are the Government proposing the same reduction in subsidy for sugar beet? It always seems to me to be unnecessary to subsidise it in this country when it can be produced much more cheaply elsewhere in the world. It also causes health problems.
Lord Whitty: My Lords, the sugar regime was not covered by the reforms, but there will be a proposal from the Commission on the reform of the sugar industry shortly. Clearly, there are a wide range of difficulties arising from the sugar industry. It is not subsidised directly, but there is a European price for sugar in order to benefit the sugar beet industry, which is substantially higher than the world price. In that sense, as consumers, we are supporting the sugar beet industry of Europe. If we are moving to a liberalised agricultural system, that, too, should be radically reformed.

Universities: Accreditation
11.24 a.m.
Lord Quirk: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a former vice-chancellor of London University and as a current governor of the Richmond American University in London, both of which institutions have had nasty brushes with the bodies named in my Question.
The Question was as follows:
To ask Her Majesty's Government what is the legal status of the bodies known as the American University in London and the American University of London; and what action is being taken with respect to their activities.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, those institutions are not universities that are recognised by the UK authorities and do not have Privy Council approval to use university title in a business name. Furthermore, neither of those institutions is accredited in the United States.
Our department has contacted both Islington and Kensington and Chelsea trading standards officers. Trading standards are still investigating options for enforcement under the Education Reform Act 1988, the Teaching and Higher Education Act 1988, the Companies Act 1985 and the Business Names Act 1985.
Lord Quirk: My Lords, I note that it is the Department for Education and Skills that has taken responsibility for responding to my Question, and I am grateful to the Minister. But given that two other departments of state have a valid concern in this 10-year saga, does the Minister accept that no small part of my frustration is the
868
feeling that it has become something of a pass-the-parcel game between the Home Office, the DTI and the Department for Education and Skills? Does the Minister also accept that as well as providing a handy route for dodgy entry visas, the selling of dodgy degree diplomas tarnishes the reputation of higher education in this country?
Baroness Ashton of Upholland: My Lords, in preparing for this Question, I ensured that we consulted our colleagues in the Home Office and the DTI. I do not believe that it is a case of passing the parcel. It is incredibly difficult to deal with these issues. I understand the noble Lord's frustration, but, as he knows well, the Acts to which I referred are those under which we are able to undertake any prosecutions or to work with colleagues in trading standards. That is very difficult when there are companies that have addresses in, say, the West Indies, as occurred in one case, or which operate solely on the Internet where there are real issues about operating on an international basis.
Lord Dearing: My Lords, the Minister said that these are incredibly difficult issues to deal with. That probably suggests that we need a better way of dealing with them. Does she not agree that the careful supervision of the right to use the title "university" in this country is an important safeguard to our students? It is an important asset to British universities that are seeking to attract students from the marketplaces of the world. As higher education increasingly becomes a tradable service, that is an important issue.
Baroness Ashton of Upholland: My Lords. I could not agree with the noble Lord, Lord Dearing, more. Again, I was careful to check the exact figures. We have education exports worth about £10·2 billion to the UK economy, of which higher education exports contributes just over £4 billion. As the noble Lord, Lord Dearing, may know, we are consulting on the new criteria for degree-awarding powers and university title. Consultation is out at the moment: it finishes on 25 June. We will publish new criteria for degree-awarding powers and university title later.
The DfES plans to set up a register of learning providers in the United Kingdom, which will include public and private-funded providers. That will confirm that the organisations exist and are providing learning.
Lord Brooke of Sutton Mandeville: My Lords, I declare an interest as pro-chancellor of the University of London. Can the Minister confirm the recent reports that the Immigration Service has been detecting people who have arrived in this country to study at institutions that latterly have been discovered not to exist? Do the Government maintain a list of existing organisations and institutions to which foreign student entry is appropriate? Do they make that list available to the Immigration Service?
Baroness Ashton of Upholland: My Lords, I, too, read the press reports. This morning my officials have been trying to determine what more can be ascertained. My right honourable friend the Secretary of State is due to make an announcement very, very shortly—if I can say that—about a register of learning providers. Indeed, that will be an important way in which people can understand what is registered and what is not.
One of the issues is that negligible numbers of students complain about the two institutions that the noble Lord, Lord Quirk, has rightly indicated would never be on a register of such a kind. They do not offer anything that we would recognise. In itself, that creates some difficulties if the understanding is that there are no complaints against them.
Lord Tomlinson: My Lords, I declare an interest as chairman of the advisory committee of the Association of Independent Higher Education Providers. Having done so, can I ask my noble friend whether she holds any views on the desirability of entry visas being designated for a specific educational establishment when they are granted overseas? Would it not help enormously in the effort to crack down on bogus students if, when entry visas were issued for the pursuit of higher education, they were designated for a specific purpose and for that purpose to be executed at a specific college?
Baroness Ashton of Upholland: My Lords, I have views on everything. However, I would be moving completely outside my area of knowledge if I were to respond directly to that question. I think that I must consult with colleagues in the Home Office because I am not qualified to give a specific answer.
Referring back to the original Question asked by the noble Lord, Lord Quirk, one of the issues about these particular institutions is that they do not have a physical presence. There are no buildings. In one case there is an accommodation address, and an Internet site for the other. So this is not about students arriving here to study in those institutions because they physically do not exist.
Baroness Sharp of Guildford: My Lords, does not the Minister agree that it would be useful to list the bona fide institutions so that overseas students applying to study in Britain could have at least some assurance that the institution to which they are applying is not bogus?
Baroness Ashton of Upholland: My Lords, I hope that the imminent announcement by my right honourable friend the Secretary of State will go a long way to achieving that. It will ensure that people are aware of which institutions are recognised. Moreover, we already provide information about recognised degrees and institutions in the UK on our website.

Business of the House: Standing Order 47
11.30 a.m.
Lord Davies of Oldham: My Lords, on behalf of my noble friend the Lord President of the Council, I beg to move the Motion standing in her name on the Order Paper.
Moved, That Standing Order 47 (No two stages of a Bill to he taken on one day) be dispensed with to allow the Age-Related Payments Bill to be taken through all its remaining stages on Thursday 1 July.—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Pensions Bill
Baroness Andrews: My Lords, on behalf of my noble friend Lady Hollis of Heigham, I beg to move the Motion standing in her name on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 3,
Schedule 1,
Clauses 4 to 11,
Schedule 2,
Clauses 12 to 80,
Schedule 3,
Clauses 81 to 96,
Schedule 4,
Clauses 97 to 103,
Schedule 5,
Clauses 104 to 152,
Schedule 6,
Clause 153,
Schedule 7,
Clauses 154 to 191,
Schedule 8,
Clauses 192 to 197,
Schedule 9,
Clauses 198 to 226,
Schedule 10,
Clauses 227 to 283,
Schedule 11,
Clauses 284 to 310,
Schedules 12 and 13.—(Baroness Andrews.)
On Question, Motion agreed to.

Children Bill [H.L.]
11.32 a.m.
Report received.
Schedule 1 [Children's Commissioner]:
Earl Howe Earl Howe moved Amendment No. 1:
Page 32, line 32, at end insert "; or
(c) significantly failed in the discharge of any of his functions"
The noble Earl said: My Lords, perhaps I may begin our deliberations on Report with a word of gratitude to the Minister. Since our debates in Committee she has been most diligent in following up the many points raised during those proceedings and has written fully to me and to other noble Lords about them. For my part, I can say that her letters have been extremely helpful and informative. I thank her and her officials for the trouble they have taken.
In moving Amendment No. 1, I should like to raise an issue that was not debated to any great extent, if at all, in Committee; that is, the accountability of the Children's Commissioner. We all hope and trust that whoever is appointed to this important post will fulfil his or her remit both capably and to general approval. No doubt, Parliament will stand in judgment on the quality of his or her performance.
What if things do not go quite so smoothly? Where are the legal mechanisms to enable the commissioner to be held properly accountable for his work? No doubt, the Minister will tell me that the commissioner will be accountable to the Secretary of State and, through him, ultimately to Parliament. I expect that that is the case in the strict legal sense, but to whom will the commissioner be accountable in the sense of being performance assessed? Who will tell him when he has fallen down on the job and that, if it happens again, his appointment will be terminated? In the final analysis, someone should be able to sack the commissioner if he fails in a significant way to perform to everyone's expectations.
Schedule 1 addresses the point in part by stating that the Secretary of State may remove the commissioner from office if he has,
"become unfit or unable properly to discharge his functions, or … behaved in a way that is not compatible with his continuing in office".
Neither of those sets of circumstances covers the situation I have in mind. It would be possible for the commissioner to be perfectly fit, both physically and mentally, and quite capable of discharging his functions yet, by common consent, to be seen to have failed in the performance of his duties. I firmly believe that, in those circumstances, the commissioner's job should be on the line.
In practice, if the commissioner is criticised sufficiently strongly and often by Parliament, his position may become untenable, but that is a situation which envisages him leaving office of his own accord. Accountability, if it is to bite, should be such as to prevent an appointee to any post being able to perform the job half-heartedly and at the same time to get away with it.
From a personal point of view, I would like to see Parliament, and not the Secretary of State, having the power to dismiss the commissioner, but my amendment is designed simply as a probe to find out from the Minister what kind of accountability the commissioner will be subject to and how in practice he will be held responsible for any failings. I beg to move.
Baroness Howarth of Breckland: My Lords, I support the amendment moved by the noble Earl, Lord Howe.
872
Like him, I wish to put a probing question on this subject. There must be some way of measuring the achievements of all senior officials. Most of the chief executives of our non-departmental public bodies have targets and are accountable to their committees for achieving them. If they are not met, then obviously action has to be taken. However, I have never been clear about how either the Welsh or the Scottish Children's Commissioners are held to account. Although I am sure that my Welsh colleagues will pick me up on this, I think that being accountable to the Welsh Assembly is rather like being accountable to God—you are accountable to your conscience.
We need to see much clearer accountability for a post that is so important to the lives of our children. Someone outside this House recently said to me, "If we had a bad commissioner, the only way you could get rid of them would be if they abused a child or fiddled the books". I want to be sure that if the commissioner is not giving the best service, he can be held to account. However, that does not mean that the commissioner should not criticise the system, be challenging and difficult, and make our lives utterly miserable in the interests of children. Anyone who fails to do those things might be someone we want to hold to account. For that reason, I support the amendment.
Baroness Walmsley: My Lords, I have much sympathy with the sentiments expressed by both speakers, in particular the comment of the noble Baroness, Lady Howarth, that she wants the commissioner to be difficult and challenging. We all want that.
I shall be interested to hear how the Minister proposes that an ineffective commissioner could be removed, but I have a problem with the amendment in its use of the word "any". I have informed the noble Earl, Lord Howe, of my reservations about the use of that word. We could have a commissioner who was extremely effective in the vast majority of his or her core functions, but had significantly failed in one of them. I would not want us to get rid of a commissioner on that basis.
I understand that this is by way of a probing amendment and I look forward to hearing from the noble Baroness that there will be a mechanism for ensuring that if a commissioner is not effective, we can soon rectify the situation and appoint one who is.
Baroness Ashton of Upholland: My Lords, I shall try to work between the two largely consistent viewpoints that have been expressed, albeit with certain nuances. First, however, I thank the noble Earl for his opening comments. I certainly tried to respond in the most appropriate way to as many of the points raised in Committee as possible.
I remind noble Lords that the commissioner will be a non-departmental public body. Within that we have a clear line of accountability to the Secretary of State that would include personal performance reviews. That is an important safeguard. We have looked at the models provided by the different commissioners and I

873
think that ours will follow closest that of the Welsh Children's Commissioner in terms of how we have structured the role.
I think that the amendment itself is unnecessary because Schedule 1 provides that the commissioner can be removed if he has,
"become unfit or unable to discharge his functions, … or behaved in a way that is not compatible with his continuing in office".
Within that we encompass the circumstances which I believe are behind the noble Earl's questions and concerns.
I am also very mindful that your Lordships are keen to ensure that the commissioner is independent from government and that he cannot be removed because a value judgment is made that he or she is a "nuisance" or incompatible with the direction in which the Government of the day are going. That is very important because a part of the commissioner's independence will be his or her ability to be challenging and difficult if necessary. We hope that it will not be necessary while we are in government but, nevertheless, I accept that we need to get that right.
We feel that we have covered the issue within the schedule. It makes it clear that there will be the kind of performance review that will encompass what the noble Earl is searching for. As well as that being clear and well structured within the framework, it is also clear that the commissioner will be able to operate in an independent way; he will have the ability to challenge and he will be able to respond to the wishes of children.
Ultimately, if I could find a mechanism to allow it, I would like the performance assessed by children, because they are the reason for the commissioner. I hope that we will see children responding to the way in which the commissioner takes forward their desires and wishes in the best possible way. I hope that the noble Earl is reassured that what he is searching for is encompassed within the right and appropriate structures of the commission and that he will feel able to withdraw his amendment.
Earl Howe: My Lords, I am grateful to the noble Baronesses for their contributions to the debate and to the Minister for her reply. The noble Baroness, Lady Walmsley, for whose general support I am grateful, was worried about the phrase "any of his functions" in the amendment. I make no apology for using that phrase instead of "all of his functions" or "the majority of his functions" because I genuinely believe that a failure to perform even one of his functions should cast a question mark over the continued employment of the commissioner, providing the failure is serious enough. Each and every function is surely important in its own right, as well as collectively with the other functions.
Having said that, we come back to the wording of the schedule. The Minister interprets the wording "unfit or unable" as encompassing a failure to meet performance targets. I am reassured by that but I am
874
still a little doubtful. It is not a matter upon which I propose to dwell. If the Minister can give me further clarification between now and the next stage of the Bill I would be grateful. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 2:
Page 33, line 30, leave out paragraph 7 and insert—
"(1) The Secretary of State may make payments to the Children's Commissioner to enable him to fulfil his functions as set out in this Part of such amounts and at such times as the Secretary of State considers appropriate.
(2) The Secretary of State may make additional payments to the Children's Commissioner of such amounts, at such times and on such conditions (if any) as the Secretary of State considers appropriate."
The noble Earl said: My Lords, at present, paragraph 7 of Schedule 1 allows the Secretary of State to impose whatever conditions he or she believes appropriate on any payments made to the Children's Commissioner. In Committee, many noble Lords expressed their unhappiness over this wording. The amendment seeks to make a distinction between the core funding required to enable the Children's Commissioner to fulfil his or her functions and any additional funding. That, at least, is the intent of the amendment.
For the Secretary of State to be able to impose conditions on the use of the core funding of the commissioner would plainly conflict with his or her independence. It would effectively enable Ministers to dictate what activities the office could or could not undertake. On the other hand, it seems perfectly reasonable that Ministers should be able to grant additional funds earmarked for particular purposes in agreement with the commissioner. The amendment seeks to allow for that.
I hope that the Minister will give me some further comfort, at least, in the light of our debates in Committee. I beg to move.
11.45 a.m.
Lord Lester of Herne Hill: My Lords, I have great sympathy for the aim of the amendment, but I wonder whether it goes far enough. In Committee I mentioned to the Minister that the Joint Committee on Human Rights in its report Commission for Equality and Human Rights: Structure, Functions and Power drew attention to eight principles that we considered any commission should follow. One of those principles was,
"statutory guarantees of independence from both the executive and parliament"—
which has been, to some extent, traversed just now. The second principle was that the system of funding should be independent of direct ministerial control. Paragraph 130 stated:
"The commission should be funded by moneys voted by the House of Commons directly, not through the voted expenditure of a ministerial department".

875
It continued:
"The adequate funding of the commission, having regard to the need for efficiency, economy and effectiveness in the use of its resources, will of course be essential to guarantee its independence. It will require more funding than the combined budgets of the existing commissioners".
But that was in relation to a different commission and so it is irrelevant.
The Minister was very generous and helpful in her immediate response to these points without, of course, committing anyone to anything. I wonder whether, whatever the Government's view of the amendment, that principle could be reflected in some way, either administratively or legislatively, during the passage of the Bill.
Baroness Walmsley: My Lords, a number of noble Lords had no fewer than three meetings with young people yesterday, and their overriding concern in relation to the commissioner was that he or she should be as independent as possible, and be seen to be; otherwise they feared that he or she would not have the credibility needed with young people. Financial independence is vitally important.
The Minister will recall that during the Committee stage my noble friend Lord Lester and I tabled an amendment which was even stronger than the one in the name of the noble Earl, Lord Howe, which I support. My support is pragmatic in the hope—I hope it is not a vain hope—that the Minister will feel able to go at least this far.
Baroness Howe of Idlicote: My Lords, having listened to what has been said, I feel that we could go a little further. Independence is absolutely crucial to the success of the role that we are all backing so strongly. On any view, the core funding and how it is spent must be seen to be in the control of the commissioner.
Baroness Ashton of Upholland: My Lords, I am grateful for the opportunity to look once again at this important issue. Let me reassure noble Lords by repeating a little of what I said in Committee.
The wording in the schedule mirrors paragraph 14 of Schedule 2 to the Care Standards Act, which of course provides for the funding of the Welsh commissioner by the National Assembly. After the Committee stage, I looked very carefully at the wording and came back to the principle that it is the wording used when setting up a non-departmental public body. The words are in no way to be seen as conditions by which to direct or control the commissioner.
I understand the concerns that have been raised and absolutely accept what the noble Baroness, Lady Walmsley, said about young people wanting the commissioner to be independent. It is important that they should feel that the commissioner is for them and feel confident in their relationship with him or her. After all, he or she will need to extract from young people their views, thoughts and ideas and it will be critical that he or she is someone they can talk to and someone they feel is for them.
876
I looked at where the wording had been used before, for example, with the Adult Learning Inspectorate, the Learning and Skills Council and so on. I looked in particular at the Welsh commissioner, which is a good example; the post is not an NDPB and it might be argued that the position is even more difficult.
This is a formula that works well in terms of the way in which we traditionally support people, institutions and our non-departmental public bodies. It serves us well because it bridges the gap between accountability for public money, which is important, and interference in the way in which those moneys are used.
I am quite confident about this, having explored it at length. I was much taken with what the noble Lord, Lord Lester, said about the Select Committee. I do not have a formal response because the issues that it raised, which are critical, are cross-governmental as well. As the Government consider the suggestions, cross-governmental changes may take place, but I do not know—that goes way beyond my ability.
Lord Lester of Herne Hill: My Lords, that is a very helpful reply. The all-party JCHR said that this should be a step change from the way in which the existing agencies have been funded where there is a particular need for independence. Therefore, if Parliament gives the Vote—we have given some examples—that might be a way forward. If that suggestion could be considered not only in the context of the Bill but more generally—I do not know whether it would be dealt with by legislation or administration—that would be very helpful.
Baroness Ashton of Upholland: My Lords, I am very mindful of what the Select Committee has said. There are issues which the Government need to explore across government. As the noble Lord would expect, I cannot respond to those.
I have looked at where else the wording is used and am mindful of noble Lords' desire, for very good reasons, to see the commissioner as an independent office and officeholder which would use the money appropriately. At the same time, the job of government is to make sure that public money is spent properly, so that link needs to be made.
I am very comfortable with the position as it stands. It is hard to take it further in terms of the Select Committee's recommendations, because cross-governmental changes might affect the way in which the commissioner operated. But that is for the future and, as the noble Lord quite rightly said, there might be administrative changes.
I am mindful of the Select Committee's findings. We are all considering many of the issues that have emerged from its report and others—I refer to the House of Lords Select Committee in particular and the Joint Committee. For the moment, we have something that serves government well. I feel confident, not only as far as this Government are concerned but any government, that the commissioner would be able to exercise the proper control over finances within the role of public accountability that it is right and proper for government to exercise.

877
I am very happy, as always, to continue the dialogue on the Select Committee, because it is ongoing. However, I wish to reassure noble Lords that the current wording is right and fine, and that it addresses the needs about which noble Lords are concerned. But we need to continue to look to the future and to what the Select Committee says.
Lord Campbell of Alloway: My Lords, I was going to ask a question—
Baroness Andrews: My Lords, I beg the noble Lord's pardon, but I wanted to remind the House that this is Report stage, and we have some quite strict rules about who can intervene after the Minister has spoken.
Earl Howe: My Lords, once again this has been a very useful exchange. I am grateful to the Minister and to other noble Lords for their interventions.
The Minister essentially said that there is a weight of precedent here and an established formula which has served us well up to now, and I take that point. I am certainly not questioning the principle of accountability for public money. Ultimately, I suppose, much will depend on how transparent these arrangements are. If it becomes known, for example, that the commissioner's financial independence is being fettered unreasonably by government, that would clearly damage both the Government and, perhaps more importantly, the standing of the commissioner.
I take comfort from what the Minister has said. I hope that the thought that I have voiced will be of some comfort to the House, if other noble Lords agree. I think it is time to move on, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 3:
Page 34, line 10, at end insert—
"Protection from defamation actions
9A For the purposes of the law of defamation—

(a) any statement made by the Children's Commissioner in a report published under this Part has absolute privilege; and

(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."

The noble Baroness said: My Lords, this group of amendments responds to concerns that the Children's Commissioner should have clear powers to carry out his function. Amendments Nos. 6 and 13 clarify what the commissioner can do under his Clause 2 function of promoting awareness of the views and interests of children and how he may do it; and to reinforce his powers to discharge that function. Amendment No. 3 clarifies the commissioner's protection against action under defamation laws.
I will start by talking to the amendments relating to the commissioner's Clause 2 function. Amendment No. 6 establishes in the Bill the commissioner's ability
878
to produce ad hoc reports. Amendment No. 13 gives the commissioner access to children in order to consult them on their views and interests, and enables the commissioner to require other bodies to provide information.
We have deliberately left many things implicit in the Bill. We believe that if the commissioner is to be truly independent, the Bill should not say exactly what he should do. However, to use a phrase I will be uttering many times today, I have listened. In Committee, several noble Lords expressed concern about what exactly the commissioner would be able to do in pursuance of his duty to promote awareness of the views and interests of children. I have written to some of those who raised this question and copied those letters to all noble Lords who participated in the debate. I hope that they have shed some light on how we view the commissioner's role under the clause.
In the light of that debate, I have come to the view that there are merits in putting on the face of the Bill some more details about the powers. We must do this without using those details to constrain the commissioner and take away his independence. I hope and believe that the amendments strike the right balance.
It has always been our intention that the commissioner should be able to produce ad hoc reports on any issue relevant to the interests of children. Even without Amendment No. 16, there would have been nothing to stop the commissioner doing so. But I have had regard to comments made on a similar amendment in Committee and I accept the value of putting something on the face of the Bill. The amendment makes it clear that this is something that the commissioner may do. We are not saying that the commissioner should do it, merely that he can.
We are not specifying how the commissioner should publish reports. He will want to think about versions targeted at different age groups or in different languages. That is for the commissioner to decide, depending on the issue concerned. Nor are we suggesting how many reports the commissioner ought to produce. It is entirely up to the commissioner—Ministers have no powers to interfere. I hope that noble Lords will agree that this is a helpful amendment and clarification.
Amendment No. 13 is slightly different. The Bill already makes it clear that the commissioner must consult children in order to ascertain their views and interests. The amendment seeks first to ensure that the commissioner is not obstructed when seeking to do so. It gives him the power to enter any premises, other than a private dwelling, to consult children living or cared for there.
The amendment also authorises the commissioner to exclude others from the room when he wants to speak to a child or children in private. When meeting children, the commissioner will want to judge whether it is appropriate to insist on meeting them without any other person being present, and that will doubtless vary from case to case. This at least permits the commissioner to insist on seeing children or young people without, for example, a member of staff present. That may be appropriate if it is felt that the member of staff could inhibit the children's comments.
I hope that the commissioner will rarely use these powers; I expect that when he or she contacts a school, youth club or playgroup with a view to meeting children there, those in charge will do all they can to facilitate the visit. If it is not convenient for a particular school, there should be scope and flexibility on both sides. The commissioner is not coming to inspect but to seek children's views.
There are some children—those in custody and in residential schools year-round—who may be accessible only in the establishment where they live. If the commissioner wishes to ascertain their views on issues specific to them or on broader issues, he needs to see them in that establishment. I hope and believe that those running the establishments will be accommodating but feel that it is useful for the commissioner to have a statutory power to call on. That is why I am proposing the power in the first part of Amendment No. 13. The amendment mentions "reasonable time" because we expect the commissioner to arrange his visits in advance. His is not an inspection role with unannounced calls or checks. The commissioner will be there to talk and listen to children.
Noon
The last part of Amendment No. 13 is another provision to which we hope the commissioner would need to refer only on rare occasions. It puts a duty on the bodies exercising statutory functions to comply with reasonable requests for information. We have in mind circumstances where public bodies have information that the commissioner may need to seek in order to promote his duties. As part of this he might, for example, wish to get access to statistics already collected and held by local authorities. We would expect them to be helpful and to provide information. We do not mean the commissioner to be seeking confidential information about individual children. But if calls, letters and e-mails from children suggest that a specific issue is a problem for them, it would doubtless help the commissioner to be able to get facts that clarify the position and the extent of the problem.
The issue of reasonableness is key. It is not for the commissioner to place a burden on bodies by asking them to collect data or information that they do not otherwise want or need. To make this clear the amendment stipulates,
"information in that person's possession".
As with the power to get access to children, I hope that the commissioner will rarely need to use it. I expect public bodies to have children's interests at heart. But it is helpful to have this spelt out on the face of the Bill.
The last of the government amendments, Amendment No. 3, covers an issue raised in Committee by the noble Earl, Lord Howe, and the noble Baroness, Lady Byford. I am grateful to them. In Committee, I promised to give the issue of privilege further consideration before Report. I have done so and now accept that the commissioner should be given absolute privilege under the law of defamation for his reports. This amendment would give the commissioner privilege for all reports,
880
inquiries, annual reports and ad hoc reports. We expect the commissioner to use this privilege responsibly but if he is to be a fearless champion for children, he should not have to work under the threat of legal action.
This privilege has been extended to the other UK commissioners and it is appropriate that the children's commissioner should enjoy the same protection. The absolute privilege applies to reports only. Under this amendment, all other statements have qualified privilege. The commissioner and his staff would have a defence as long as they had not acted maliciously in making a comment. This amendment, and the others in this group, will help the commissioner to be more effective. I beg to move.
Baroness Byford: My Lords, I am very grateful for what the Minister has had to say with regard to Amendment No. 3. We had a long debate in Committee about it and she said that she would take it away and think about it. I take the point she made about the absolute privilege referring to reports only. I think that that is wise.
I shall touch on the other two issues very quickly. I am particularly grateful to the noble Baroness that the Government have clarified on the face of the Bill that the commissioner does have access. The one matter that the children's groups that I have talked to were particularly anxious about was that facility and that it would be in private on occasions where it was relevant. I do not think it is the fact that children fear members of staff, particularly those who look after children in care, but I think that it is essential that that privacy is there. It may never be used but it is hugely important. I am very grateful to the Minister.
I am pleased to see that the Government have not limited the number of reports and that that is left to the commissioner. Therefore, from these Benches we thank the Minister for having listened and are pleased to support the amendment.
Baroness Walmsley: My Lords, I have no intention of sparing the Minister's blushes. I very sincerely thank her for listening. She has been a model of how Ministers should listen to Members of this House who have concerns about legislation. She has spent an enormous amount of time and has been incredibly patient. It is clear to us that she has fought very hard within government for the ability to come back to this House on Report with some of the amendments she has tabled today. We are most grateful to her. She is fulfilling her function admirably—that does not mean to say that I shall not have arguments with her later in the day. I thank her very much for these amendments.
I mentioned a little earlier that we had meetings with young people yesterday and I have a question about Amendment No. 13 that came from them. It is in relation to the privacy issue that the noble Baroness, Lady Byford, has just raised. They asked whether the normal rules about a responsible adult being present when a child is being interviewed would apply. The Minister has just emphasised that it would be with the child's consent but she also said that other people could be dismissed from the room if the Children's

881
Commissioner felt that it was necessary. Can she confirm from the Dispatch Box that that would also be with the child's consent? They were most concerned about that.
Lord Lester of Herne Hill: My Lords, I do not want to add to the Minister's blushes by expressing my great pleasure about these amendments. However, I have one important query about Amendment No. 3 that I have raised in advance with the Minister. I am unhappy about giving absolute privilege rather than qualified privilege to reports by the Children's Commissioner. That privilege cloaks not only Section 3 reports to Parliament but also any Section 4 report. I had not realised that one found that in the devolved equivalents but that is not necessarily an ideal reason for doing it now, if that happens to be wrong.
I shall summarise my concern in non-legalistic terms. Under the law of defamation, it is very rare to give absolute privilege to any public officer or person outside Parliament. It sometimes happens, but it is very rare. Absolute privilege means that the commissioner, hypothetically, could vilify the reputation of any individual maliciously—that is to say in bad faith—or recklessly—without any honest belief in the truth of what was being published.
Without being pompous about it, that raises serious issues under the European Convention on Human Rights because the right to honour, the right to reputation, is guaranteed by Article 8 of the convention and must be balanced against free speech and public interest considerations and there must be an effective remedy. Immunities of this absolute kind are vulnerable to legal challenge. The Joint Committee on Human Rights has not considered this because the amendment is only now before the House.
Leaving aside the fact that this has been done before in Scotland, Wales and Northern Ireland, I am not aware that it has been done before for, for example, the Equal Opportunities Commission's commissioners or the Commission for Racial Equality's commissioners who publish serious reports finding people guilty of unlawful discrimination. I am not aware that this is in any way normal for other commissioners. It may be that, in an excess of zeal, this has been put in in relation to Scotland, Northern Ireland and Wales. I do not know whether that was considered by lawyers in terms of human rights obligations. But unless there is some extremely good reason, based on more than the fact that it has been done in those parts of the UK, I am very troubled by this amendment. Therefore, if the Minister is not able to give a full reply today, I should be grateful if this matter could be further considered during the passage of the Bill.
Lord Campbell of Alloway: My Lords, before I raise a few points, I wish to thank the Minister for keeping me posted on the voluminous correspondence, which I have read with great care. I am very appreciative because Back Benchers do not have a clue about what is going on and I am very interested in this affair. I am most grateful. It is very rare that one has that privilege.
882
I am thankful to see creeping onto the face of the Bill measures that should be there and should have been in previous legislation. I have two points to make. The first is on absolute privilege, which is rare. The point that has been made about it is valid. In my past I did quite a few of these defamation cases. Absolute privilege is confined in effect to the proceedings of the Houses of Parliament, to judicial judgments and so forth. I agree with the noble Lord, Lord Lester—we do not always agree, but I do agree with him 100 per cent on this—that this matter requires looking at.
The second matter concerns Amendment No. 13, which to my mind is extremely well drafted. I know that it has been criticised somewhat but I shall not waste time by dealing with the argument—that is a matter for the Minister. It brings into relief the very issue which arose on my noble friend's amendment on funding. It brings into relief the fact that the initiative in practical terms comes from the Children's Commissioner, who is the hub of this machine, not the Secretary of State, who has the authorising and funding power. I apologise for rising to speak at the wrong time, but I have been listening to all that has been said.
It suddenly struck me that paragraph 7 of Schedule 1 did not give effect to the essence of the problem, which was reflected in the amendment of my noble friend Lord Howe. I do not commend the drafting; I speak only about the principle. My noble friend's amendment puts the whole procedure in the right place so that the Children's Commissioner says to the Secretary of State, "I need some money for this and that", and then the Secretary of State—the word is "may", but in effect it is "shall"—funds it. I am sorry to go back to this, but it is only one practical example of the matter. Will the noble Baroness take that on board and seek advice?
Baroness Whitaker: My Lords, I support these amendments very warmly as they go far to create the kind of independent commissioner who will be recognised as among the best by the international community.
Lord Laming: My Lords, I am sorry that I was not able to be present during the Committee stage although I have read Hansard for that stage. What strikes me throughout the whole of the debate about the Children's Commissioner is a concern on the one hand that the commissioner does not have sufficient powers, is not sufficiently independent and is not free to use whatever budget he determines is right, but on the other hand that we should move towards a situation where the commissioner is given somewhat unusual powers. I do not want to speak against either of the amendments that we are discussing, but the noble Lord, Lord Lester, made extremely strong points about absolute privilege. I read that with some surprise. We need to recognise the significance of that amendment.
In respect of Amendment No. 13, we also need to recognise that although the Minister has indicated that these powers will be used rarely—it is my hope that

883
they would be used rarely—they will be in statute and they will be used at the discretion of the commissioner. I hope that the commissioner will be wise enough to use those powers in a way that does not prejudice the duties that Parliament has placed upon other organisations which also have responsibilities for children.
12.15 p.m.
Baroness Ashton of Upholland: My Lords, I am grateful for the welcome extended by noble Lords. I have already blushed twice but perhaps I shall carry on blushing—perhaps it will be that kind of day. I am very grateful for the comments that have been made. I am sorry that the noble Lord, Lord Campbell of Alloway, was cut off praising me earlier, but I am happy to receive that praise now. I am also grateful to those who write the relevant letters and circulate them. In a sense my job is the easy one of signing the letters. However, I believe that this is a good way to operate and I am glad that noble Lords have found it useful.
I say to the noble Baroness, Lady Walmsley, that we are considering protocols in this regard. When the commissioner talks to children they need to be able to understand that. I refer also to issues of consent and issues connected with parents. We shall expect the commissioner to consider protocols and how to ensure that the measure works properly not only in regard to the commissioner but also his staff. Our intention is to enable the commissioner to exclude anyone who is inappropriate. I am happy to keep the noble Baroness informed as matters develop. We expect that matter to be developed fully.
I am grateful to the noble Lord, Lord Lester, who yesterday raised with me the question of absolute privilege. I believe that he had three points of concern in relation to the Human Rights Act. Therefore, I checked that the matter we are discussing applied to other commissioners. I do not have the relevant detail as I have not had time to gather it since yesterday, but I understand that this is a matter that applies in other circumstances. We want to continue to discuss the matter with the noble Lord—we shall consider anything that emerges on this from the Human Rights Committee—as we believe that we are following custom and practice and acting in accordance with the practice for other commissioners, which is what noble Lords wanted.
However, I listened carefully to the points made by the noble Lords, Lord Laming, Lord Campbell of Alloway and Lord Lester, about the potential implications of the measure. I shall continue to discuss the measure, keep noble Lords informed and return to the matter if that is necessary.
I say to the noble Lord, Lord Campbell of Alloway, O that people could go to Secretaries of State and say that they need money for this or that. I believe that junior Ministers might like to do that on occasion.
As we discuss later amendments concerning the way in which we have altered the powers of the commissioner, I shall be able to say a little more about dialogue in terms of budgeting. A balance has to be struck between the commissioner being able to use the relevant money in a way that he or she considers
884
appropriate—we have recognised new powers in that regard—and the ability of the Secretary of State to work with the commissioner on projects that might be more expensive. The comparison is often made between a child protection inquiry, the cost of which might be about £80,000 to £100,000, and an inquiry of the depth and nature of the Victoria Climbié inquiry as conducted by the noble Lord, Lord Laming, which cost some £3·8 million. Noble Lords will not be surprised to hear me say that dialogue is important. It is very important that the commissioner talks to the Secretary of State when he seeks to undertake inquiries that are perhaps way beyond the norm. I hope that noble Lords will support these amendments.
Baroness Carnegy of Lour: My Lords, before the noble Baroness sits down, and with the leave of the House, I should like to make a comment. I have not followed the Bill and perhaps should not intervene, but in view of what the noble Lord, Lord Lester, said about privilege and the commissioner—I think that he mentioned that he was not sure what was happening in that regard in the other parts of the United Kingdom—it is important to realise that, should there be a Scottish commissioner on any subject, and he or she be given privilege, the Members of the Scots Parliament do not have privilege themselves. That would be a very strange situation, I should have thought. I merely contribute that for the noble Baroness's consideration in case it is relevant.
Baroness Ashton of Upholland: My Lords, my understanding is that the Scottish commissioner does have privilege, as I said earlier.
On Question, amendment agreed to.
Clause 2 [General function of Commissioner]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before I call Amendment No. 4, I have to inform the House that if it were to be agreed I would not be able to call Amendments Nos. 6 to 13, under the pre-emption rules.
Baroness Walmsley Baroness Walmsley moved Amendment No. 4:
Page 1, line 7, leave out subsections (1) to (8) and insert—
(1) The Children's Commissioner has, subject to the following provisions of this Part, the function of promoting and safeguarding the rights and interests of children in England.
(2) The Children's Commissioner may in particular under this section—

(a) encourage persons exercising functions or engaged in activities affecting children to take account of their rights, views and interests;

(b) advise the Secretary of State on the rights, views and interests of children;

(c) review and report on the effectiveness of—

(i) advice and advocacy services;

(ii) complaints procedures; and

(iii) inspection and whistle-blowing arrangements;

so far as relating to children;

(d) review and report on any other matter relating to the rights, views and interests of children.

(3) The Children's Commissioner must take reasonable steps to involve children in the discharge of his function under this section, and in particular to—

(a) ensure that children are made aware of his function and how they may communicate with him;

(b) consult children, and organisations working with children, on the matters he proposes to review and report on under subsection (2)(c) or (d);

(c) ensure that the content of any material issued by the Commissioner or his staff, whether printed or in electronic or other form, which is intended to be used by children, takes account, so far as practicable, of the means of communication, level of understanding and usual language of the intended recipients.

(4) The Children's Commissioner must for the purposes of subsection (3) have particular regard to groups of children who do not have other adequate means by which they can make their views known.
(5) The Children's Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time—

(a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and

(b) if the child consents, interview the child in private.

(6) Any person exercising functions under any enactment must supply the Children's Commissioner with such information in that person's possession relating to those functions as the Children's Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this subsection, lawfully disclose to him).
(7) The Children's Commissioner may provide assistance to a child to bring legal proceedings where the child is unable to bring legal proceedings; and it appears to the Commissioner reasonable to do so and there is no other person or body likely to provide such assistance or take such action (or both).
(8) In considering for the purpose of his function under this section what constitutes the rights and interests of children (generally or so far as relating to a particular matter) the Children's Commissioner must have regard to the United Nations Convention on the Rights of the Child.
(9) In subsection (8) the reference to the United Nations Convention on the Rights of the Child is to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989, subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.
(10) For the purposes of this section "children" includes—

(a) young people in custody under the age of 22;

(b) those young people for whom a local authority has duties under the Children (Leaving Care) Act 2000 (c. 35); and

(c) young people with learning disabilities under the age of 21.

The noble Baroness said: My Lords, the amendment is supported by an enormous number of groups related to children, including Barnardo's, the Children's Rights Alliance for England, the Children's Society, the NSPCC, Save the Children, UNICEF and the Disability Rights Commission. The commission wrote to us saying:
"Without the powers in Amendment No. 4, we consider that the UK will be failing in its obligation under the UN Convention to effectively implement the Convention rights and letting down disabled children".
The amendment substantially strengthens Clause 2, to create a strong and independent general function based on human rights for the new Children's Commissioner, bringing his or her powers into line with those of the commissioners in Wales, Northern Ireland and Scotland. It is quite a long amendment, so I shall try to explain its provisions as briefly as I can. In preparing them, we have listened to children. When we met a group of children yesterday, their overriding concern was that we had a really independent and strong commissioner. They said that children would not trust him or her otherwise.
The first part of the amendment provides a strong and independent general function. Clause 2(1) requires the Children's Commissioner to promote,
"awareness of the views and interests of children in the United Kingdom".
Although that is a necessary part of his role, we do not regard it as complete. The commissioners in Wales, Northern Ireland and Scotland are required by law to promote and protect the rights and interests of children and young people. That is a much broader function and encompasses the full range of human rights of children, including their right to have their views heard and respected. In Committee, the Government conceded that the commissioner must—rather than may—have regard to the UN Convention on the Rights of the Child. That was very welcome. However, that duty does not imply a duty to safeguard and promote the human rights of children.
Clause 2(3) inappropriately ties the commissioner to current government outcome goals for children. Ministers have suggested that those outcome goals originated from children, but that is disingenuous, as it does not accurately reflect the process of consultation. Previous versions of the Government's outcome goals were included in the draft national children's strategy in November 2001, and then in Every Child Matters, the Green Paper of September 2003. Although thousands of children responded to those draft goals, it is incorrect to describe them as originating with children. Although the outcome goals are very worthy, they are not comprehensive or based on the internationally accepted standards of the UN Convention on the Rights of the Child. We therefore feel that we need to go further.
The second part of the amendment relates to the relationship between the new England commissioner and the other parts of the UK. Clause 2 gives the commissioner the function of,
"promoting awareness of the views and interests of children in the United Kingdom".
Clause 5, which allows the Secretary of State to direct the commissioner to carry out an inquiry, and the proposed new clause tabled by the Government after Clause 3, entitled, "Inquiries initiated by Commissioner", enable the commissioner to carry out inquiries not only in England, but in Wales, Scotland and Northern Ireland. There was much criticism in Committee of the extension of the commissioner's powers outside England. Children themselves have told us that it is confusing.
The children's organisations co-ordinating the campaign for a commissioner, and the three existing commissioners in Wales, Scotland and Northern

887
Ireland, all feel strongly that the Bill should establish a commissioner for children in England. They feel that the legislation establishing a commissioner in Wales, Scotland and Northern Ireland should be extended as necessary to ensure that they can exercise their powers of investigating, reviewing and reporting to cover all matters—devolved or reserved—in their countries. The idea of the Secretary of State in England directing the commissioner to go into one of the other countries to carry out a formal investigation is extraordinary, given the existence of the other commissioners. It undermines their credibility, particularly in Scotland at a time when its new commissioner is finding her feet.
The Bill could be used to extend the powers of the commissioner in Wales and Northern Ireland as necessary. Authoritative legal opinion—of which Ministers are aware—emphasises that nothing in the devolution settlements prevents the commissioners and independent non-decision-making bodies investigating, reviewing and reporting on non-devolved matters. The debate is not about devolution of governmental functions at all, but about independent children's commissioners being able to exercise their functions in each country, in relation to all matters that affect children's rights and interests. Proposed new subsection (2)(c) extends the list of services and procedures that safeguard children on which the commissioner is required to review and report. That again brings the Bill into line with the legislation on the other UK commissioners. We agree that the commissioner will have a vital role in making complaints procedures child-friendly. However, other services and procedures, such as advice and advocacy services and inspection and whistleblowing arrangements, are equally important in protecting children. We therefore believe that they should be incorporated into the commissioner's general function. The provision to,
"review and report on the effectiveness of",
is a stronger requirement than the original,
"consider or research the operation of".
It formalises the process of assessment, and ensures that the question is, "How effective will this service or procedure be in safeguarding children?".
Proposed new subsection (3)(c) requires the commissioner to ensure that materials intended to be used by children, in written, electronic or other form, take into account the child's,
"means of communication, level of understanding and usual language".
A similar duty exists for the other UK commissioners. The duty to take into account the usual language of children is an innovative aspect of the legislation relating to the operation of the offices, consistently reminding the commissioner that her or his primary constituents are children, not adults. The amendment particularly draws attention to the needs of disabled children and younger children for whom written communication is inappropriate because they have not yet learnt to use it. It is not enough for Ministers to state that they are sure that England's commissioner will produce child-friendly materials. If the idea is perceived as it should be—as a real requirement—it
888
should be in the legislation, as with the other UK commissioners. The children whom we met yesterday emphasised the importance of that.
On the right of entry to premises and to interview children, proposed new subsection (5) incorporates the Government's amendment that allows the commissioner the power of entry. Your Lordships have already welcomed that. On the obligation to provide the commissioner with information, proposed new subsection (6) incorporates the government amendment that requires,
"Any person exercising functions under any enactment,"
to provide the commissioner with information relating to his functions that he has reasonably requested. That amendment was very welcome, and is a necessary additional power for the commissioner.
On the power to assist children to bring legal proceedings in exceptional circumstances, proposed new subsection (7) enables the commissioner to assist,
"a child to bring legal proceedings where the child is unable … to do so and there is no other person or body likely to provide such assistance".
The commissioner in Northern Ireland has such power. The Law Society supported that part of our amendment. It is concerned about children and young people,
"who do not have effective access to legal remedies, because they do not have locus to bring legal proceedings and have to rely on others who then fail to take action on their behalf.
The Law Society has in mind particularly,
"children who are the subject of care orders who may need assistance in the meeting of special educational needs but are unable to bring a case before the Special Education Needs Tribunal on their own behalf. Local authority social workers may be reluctant to exercise the authority's parental responsibility and pursue such cases against the education arm of the same local authority. Children in care with special education needs should not be left without independent and robust scrutiny of the education provided to them and effective means of ensuring they get the help to which they are entitled. The power would be a last resort for them".
On the definition of children, proposed new subsection (10) brings within the scope of the commissioner's function three categories of very vulnerable people over the age of 18; namely, young people leaving care, young people in custody up to the age of 22—the age at which young offenders transfer to adult prisons, which is why we chose it—and children with learning disabilities up to the age of 21. There are special concerns over ensuring respect for the rights of those groups of young people.
The provisions in the amendment provide a much stronger, more independent commissioner of the sort that this House gives all-party support and has enormous public support in the country, among children and among all of those professional groups who work with them. I beg to move.
12.30 p.m.
Lord Puttnam: My Lords, I associated myself with the amendment principally because I felt that concerns on these Benches needed to be reflected. I agree with much of what the noble Baroness, Lady Walmsley, has said. I should also declare an interest as president of UNICEF.

889
This matter started out as a radical, ambitious and brave Green Paper that promised an independent champion for children. As the noble Lord, Lord Campbell of Alloway, said, in their present form the Bill's proposals are somewhat timorous. It has improved and is improving almost by the hour, but it has yet to return to the brave vision expressed in the Green Paper. That is why I still wish to nag away a little.
At the weekend I had the privilege of listening to a lecture by the ex-President of the United States, Mr Clinton, about the ability of governments to engage or disengage from the opportunities presented to them. He was talking about the International Criminal Court and the mistake that he believed the United States was making and had made by failing to fully engage. That concept lies at the heart of my concerns. Future governments may choose to take a generous view of the legislation on offer, encourage the Children's Commissioner to do his job and all of us could be happy. But I cannot be entirely comfortable, because I accept that even in my lifetime we may not remain in government. I am concerned that a government led by Mr Kilroy-Silk, for example, might not interpret this Bill in the way that this House would wish.
That should also be a concern of the Government and of the Minister. Will she end up with the type of commissioner that she honestly wants and which the Bill deserves? That is questionable. Having said that, I warmly congratulate the Minister on being a model of information, co-operation, discussion and reasonableness and for that reason I shall not vote against the Government on the amendment—I will instead sit and twiddle my thumbs.
However, one matter has irritated me and I wish to get it off my chest. I do not like the fact that the Government have continued to hide behind the notion that the Bill is solely "what children want". As the noble Baroness, Lady Walmsley, said, that is—putting it mildly—disingenuous, a half-truth but also a half-untruth. Much of the best work that confronts us in today's amendments has been brought forward by organisations who work for and on behalf of children. These people have injected real wisdom into the process—the type of wisdom that we could not expect or ask children to offer. That component forms the basis of this amendment and that is why I will listen keenly to the Minister's answer, because I want what she wants but I am not sure that the Bill in its present form can entirely provide it.
Earl Howe: My Lords, I support the amendment. One of the most significant interventions during our first day in Committee was made by the noble and learned Lord, Lord Neill of Bladen, who said—I paraphrase him—that, following the Minister's welcome concession to give the commissioner a duty to have regard to the UN convention, there is now no case at all for failing to redefine his functions in terms of children's rights. That is what the amendment seeks. I support it not only because it is the right approach
890
but partly because I confess to having, like the noble Lord, Lord Puttnam, a lingering suspicion about the whole basis of the clause as drafted in the Bill.
If we are to base the commissioner's functions on a set of views expressed by children—views that translate into outcomes that children have identified as important to them—we need to be much clearer than we are at the moment about how the process of opinion gathering was conducted. Exactly who were the children who were consulted? How many of them were there and precisely what questions were they asked? If one reads Every Child Matters and its successor document, Next Steps, there is no substantive information on those important questions. We understand that the research was conducted by the Children and Young People's Unit. It is true that various aspects of that research are in the public domain, but, as far as I know, the research as a whole has not been published. Am I alone in thinking that there is something wrong with that? We have been presented with legislation and we do not know in detail the data that underpin it. We can make no judgment about how robust they are. If we believe in evidence-based policy, that has to be a concern.
Perhaps more importantly, I question whether there is a need to define the commissioner's objectives in the terms of Clause 2(3) of the Bill. It is not that anything is objectionable about the sub-paragraph. The various aspects of children's well-being are sound as far as they go. But do we not already have an international treaty and a convention that sets out all those matters which children everywhere have a right to expect and receive? The convention was the product of years of deliberation and sets out the universal needs of children, not just the desires of the moment that might emerge from some consultation. Children's rights, as set out in the convention, are a much better basis on which to define the role of the commissioner.
The new duty for the commissioner to "have regard" to the UN convention has tilted the emphasis of the clause in a new direction and that is why it needs wholesale reformulation.
Lord Northbourne: My Lords, following the noble Earl's comments I, too, support him, the noble Baroness, Lady Walmsley, and the noble Lord, Lord Puttnam, in having anxieties about the idea that the consultation represents any scientific analysis of what children think or want. I shall raise that issue in my Amendment No. 7, which I have de-grouped.
For the moment, noble Lords will be aware that there is a report on the consultation meetings that were held and another on the analysis of responses to the written questions that were sent. Both the written questions and the consultation related to fairly limited aspects of specific issues and certainly could not be regarded as scientific research into the wishes of children in this country—particularly because the age groups consulted were under 16, between 16 and 18 and over 18.
It does not take a mathematical genius to work out that two-thirds of the nation's children are under 13 and that half are under 10. There were some younger

891
children in the consultation, but, I suspect, both from the answers and the notes and language used, that there were few. We have to be careful that the Bill will not become a teenagers' Bill, rather than a children's Bill.
Baroness Howe of Idlicote: My Lords, my name is down in support of the amendment. I have been enormously impressed by the educative process through which we have all been, like the noble Baroness, Lady Walmsley. Wider children's organisations have all supported the amendment, which does exactly what it should—stating all the areas that we consider to be important and that are based on the United Nations Convention on the Rights of the Child, which are now part of the Bill anyway.
Interestingly, all of us have become increasingly worried by Clause 2(3) and the rather artificial group of aspects of children's well-being which it sets down. The noble Lord, Lord Northbourne, and I tried to look into the process by which those categories were ascertained, which was pretty illuminating.
I add my name to the list of many Members of this House who have congratulated the Minister. She has not only listened, but also achieved a tremendous amount already. She now has an opportunity to replace what seems to so many of us to be a growing problem with something that would be self-explanatory and would take into account all those important issues such as the different ages, disabilities and needs of children. The noble Lord, Lord Northbourne, would perhaps like to see more on the involvement of parents and carers to be included in the Bill. I support the amendment and I hope that it will be accepted by the Government.
Lord Campbell of Alloway: My Lords, I intervene briefly to support the amendment. It brings into true perspective the issue of funding which we have been discussing and the fundamental principle behind the amendment of my noble friend Lord Howe.
Only proposed new subsection (7) of the amendment worries me, which would provide for the Children's Commissioner to fund litigation where legal aid has been refused because there was no reasonable prospect of success. I need say no more—I do not want to take up a lot of time—but I would like the Government or the noble Lords who have proposed the amendment to give further thought to the different ways in which those funding obstacles are overcome outside the Bill. Should they really lie to be overridden by a Children's Commissioner? I do not know, but it seems a little odd.
The amendment would do away with subsections (1) to (8) of Clause 2. Amendment No. 19 was drafted to implement the Bill as it was originally drafted; namely, to give the enforcement procedure statutory force. I have looked at the matter carefully this morning and spoken with my noble friend Lord Northesk. We both agree that Amendment No. 2 could be implemented in exactly the same way as Clause 2. Although I support the amendment because it improves and adds to the Bill in a way which is more appropriate, that is a
892
quantitative assessment. My main concern relates not to whether the amendment is passed or the Bill stands as it is; it relates to the enforcement procedure.
12.45 p.m.
Lord Lester of Herne Hill: My Lords, one of the great victories of my noble friend Lady Walmsley and others was in persuading the Government to replace "may" with "must" in Clause 2(7) in respect of the commissioner having regard to the UN Convention on the Rights of the Child in interpreting "the interests of children" in Clause 2(3). That is a significant step, because although the UN Convention on the Rights of the Child has been reflected in other statutes—for example, in the parts of the Children Act 1989 which relate to courts—it has never been incorporated into domestic law in the same way as the European Convention on Human Rights has been. The effect of the amendment to Clause 2, in the light of representations from all sides of the House, is that the Children's Commissioner is now under a duty, not just a discretion, to act in ways that have regard to the UN Convention on the Rights of the Child. Article 4 of the convention states:
"States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention".
The UN committee on the rights of the child made certain recommendations as we know.
I am puzzled simply because I have not done the necessary comparison. When I look at Amendment No. 4, I cannot tell which parts are necessary to secure the effective implementation of the Convention on the Rights of the Child. I am sure that the Government will know the answer because in drafting the Bill they had to have it in mind.
It is an important question because, if I am right, Clause 2(7) will represent a step-change in the role of the commissioner. He will have to be rights-based—not exclusively, which would be a mistake, but in the way that so many noble Lords have mentioned. Therefore, I am asking myself how much of the amendment is to deal with a mismatch in the Convention on the Rights of the Child and what is in the Bill or other legislation.
That is a most unfair question to ask the Minister and although she has blushed, she has not turned ashen at the mention of it. The House will be helped by an informed answer because at present we are shooting in the dark. The amendment is a good attempt to spell out in greater detail the rights-based part of the commissioner's functions, but I would be helped if I could compare its contents with what the Government consider to be the effect of Clause 2(7) and generally.
Lord Hylton: My Lords, I support the general thrust of the amendment because I want children in England to have protection that is every bit as good as that now available to children in Scotland, Wales and Northern Ireland. I agree with the noble Lord, Lord Lester of Herne Hill, that the commissioner "must" have regard to what is in the UN convention. That is an important point.

893
Children in England appear to suffer from serious problems which may be greater than those in the other devolved jurisdictions. At Second Reading, I mentioned the vast increase in sexually transmitted diseases, to which no one has referred a great deal during the Bill. They can lead to, for instance, sterility and gynaecological problems in later life.
There is also the whole concatenation of problems that arise as after-effects of children being in care, reflected notably in the prison system. In addition, there is the fact that many childcare workers are unqualified, poorly trained or underpaid. As my noble friend Lord Listowel said, there is an acute shortage of foster parents, not to mention the problems that arise from bullying and child abuse that affect children in England.
I accept that there is an overlap to some degree between this amendment, some of the Government's amendments and some of the language already used in Clause 2, but we do need a great strengthening of the protection for children in England.
Lord Laming: My Lords, I have been greatly helped by those noble Lords who have spoken to the amendment and helped by the way in which the noble Baroness, Lady Walmsley, introduced it. However, I have some concerns about it, which relate to a point made by the noble Lord, Lord Puttnam.
I, too, thought that the Green Paper, Every Child Matters, was a bold and imaginative document. One of its greatest strengths was the way in which it sought to address the needs of all children in our society. In particular, it encouraged us to think that children in our society have a great variety of needs and that we need a commissioner who is distinctive and different from every other kind of post in our society that also has duties in respect of children. The unique position of the commissioner was to be that of a champion for all children, to put it in simple terms. Later we shall consider amendments relating to play, recreation, training and opportunities for sport. Those are matters that affect all children. The commissioner should be someone who can reflect those wide interests.
I agree that there must be concerns about any consultation process with 11 million children, since we shall not get a comprehensive or scientific view of such a large number of children. In our society we have a whole range of bodies with duties and responsibilities for the proper development of children. We also have a whole range of voluntary organisations that do excellent work in pursuing interests of particular groups of children. Together they enrich the well being not only of children but of our society.
If we are not careful, we shall drag the commissioner into two functions that are, I believe, incompatible with the post. First, the commissioner may become too embroiled in individual cases and, secondly, he may become a monitor of how other organisations carry out their functions. If we do that, we shall weaken the distinctive functions of a children's commissioner, which are unique and should be seen to be unique. We should be very careful about going down that track.
894
I happen, yet again, to agree with the main thrust of the point made by the noble Lord, Lord Lester, about the significance of moving from "may" to "must". Not being a lawyer, I always hesitate to comment on such a change, but it seems of itself a huge change with huge implications. That matter should be given very careful consideration.
Lord Campbell of Alloway: My Lords, does the noble Lord have some sympathy with the point that I was trying to make briefly about subsection (7) of the amendment, and the commissioner having the obligation or the facility to provide legal assistance to children? What does he think about that?
Lord Laming: My Lords, for what it is worth, I have marked reservations about that proposal, because in passing it we would be creating a portmanteau post in which the commissioner would be seen as the answer to all things. That really rather worries me, because if we are not careful the commissioner may become the answer to no things.
Lord Roberts of Conwy: My Lords, I rise simply to point out that the change in the remit of the commissioner from the United Kingdom to England alone has considerable implication for Wales. I am sure that what I am about to say is true, to a greater or lesser extent, of Northern Ireland and Scotland.
That change will mean that the UK commissioner will no longer have oversight of what happens to children who are not currently covered by the Welsh commissioner, who has a specific remit to deal with the devolved areas of government and is not able to deal properly with non-devolved issues. It is understood that the Welsh commissioner has the right to refer such cases as may involve the non-devolved areas to the Assembly. We also understand that there is an informal mechanism whereby he can talk to Secretaries of State or their officials.
One might regard the UK commissioner's existence as yet another way in which the Welsh commissioner could approach a problem arising in non-devolved issues. He could refer it to the UK commissioner and probably enlist his assistance. So the amendment would change the situation quite considerably. It may be welcome in England that the remit has been changed—it may be welcome in Wales, as I suspect it will be, and in other parts of the United Kingdom. However, all I am concerned about is to point out to the Government, if they need it pointed out to them, that the amendment has serious implications for the other parts of the United Kingdom.
Baroness Howarth of Breckland: My Lords, I should have apologised to the House before that I was not present for Committee stage. I was out of the country, otherwise I would have taken part, but I have kept myself abreast of the matters that we are discussing.
I shall speak briefly on the proposals, which are extraordinarily seductive. The introduction given by the noble Baroness, Lady Walmsley, helped to take me through it, but I still have considerable concerns. It

895
covers so many different areas within the one clause and, like the noble Lord, Lord Lester, I found it difficult to work out what it was trying to change. I shall give a few examples of the concerns that I have about the amendment—although I should love to see a combination of the amendment and the clause.
Like my noble friend Lord Laming, and as I said in my introductory speech at Second Reading, I am enormously concerned that we are changing the commissioner into a huge service deliverer or a monitor of service delivery. We have a huge number of organisations that are already doing that extraordinarily well. With regard to the inspection of whistleblowing arrangements, for example, I realise what a task it would be to monitor the entire inspection arrangements of children's services, because I was in my time responsible for that as a board member of the National Commission for Social Care.
We have been talking about accountability and targets. I hope that those would be based in the strategic area, as is the case in subsection (3) of the Bill, rather than becoming far more defined in terms of the proposed new arrangements in subsection (2)(c) of the amendment.
1 p.m.
I, too, am very concerned about whether the commissioner will be able to pay for individual children to take cases to court. In my role in CAFCASS, I have recently spent much of my time listening to children in court cases, and I think that that could be absolutely overwhelming in terms of the amount of work involved.
Finally, I think that we are disingenuous in talking about the way in which we consult children. Having spent most of my life in organisations that do so, I recognise that huge difficulties are involved. We should not pretend, as we have often done in respect of different racial groups, that they are all the same. Children of different age groups are all different. They have different problems, and consulting them is an extraordinarily difficult task. If two groups of children are consulted at any one time about an issue, as many views will be expressed as is the case when adults are consulted.
The trick, as it were, is to be able to listen to children in groups and to obtain a sense of what they want. When I have talked to children, the sense that I have picked up is that, rightly, they want an independent commissioner, but they mean several different things by that. In Every Child Matters, the Government tried to get that sense of what children might want. I hope that we do far more of that because, as I said, it is not an easy task. Therefore, I have difficulty in supporting amendments that I would dearly wish to be able to support because I think that the task is huge and the changes are difficult to distil.
Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Baroness, Lady Walmsley, and to all noble Lords who have spoken on this amendment. I appreciate that, as the noble Baroness, Lady Howe,
896
said, I am being given further opportunities or, on the other hand, as my noble friend Lord Puttnam said, that I am being nagged.
As noble Lords have indicated, much in this amendment is common to the text that is already in Clause 2. I believe that in many respects we have similar intentions. But there are some differences, and noble Lords have invited me to comment on them and to identify areas where the Government feel unable to accept the amendment. In that context, I continue to listen carefully, and I hope that, in going through some of the issues briefly, I shall be able to point to where we stand on that.
The first issue, raised in subsection (1), is the role of the commissioner. Whereas Clause 2 sees the commissioner as,
"promoting awareness of the views and interests of children",
and places his work within the outcomes, the amendment would have the commissioner,
"promoting and safeguarding the rights and interests of children".
That begins to address the comments of the noble Lord, Lord Lester, although, in a way, his comments are directed to the noble Lords who tabled the amendment. In the amendment, they have said that they are not satisfied with what is in Clause 2(7) in relation to the UNCRC. Therefore, whereas I believe that we should be satisfied, in a way that question needs to be addressed to those noble Lords.
When we accepted an amendment relating to this matter in Committee, we believed that it put beyond doubt that the UNCRC formed the framework of the commissioner's work. That is entirely appropriate. The judgments that the commissioner will make about what issues to pursue with the more explicit powers that we have proposed in existing Clause 2 are very important. Therefore, the clear commitment that the UNCRC will form the backdrop, framework, or whatever word noble Lords choose to use, within a substantive piece of legislation for the first time, as the noble Lord, Lord Lester, said, is absolute in my view. It is an important framework.
I should very much regret it if we lost the outcomes. I have listened carefully to noble Lords, but perhaps I would not go along with words such as "disingenuous". I find it difficult to use that word in relation to what we are seeking to do. I should regret it very much if we were not able to view this as a "both/and" rather than an "either/or" issue.
We are trying to say that, within the framework of the UNCRC and our recognition of its importance by the use of word "must", we also wanted to put on to the face of the Bill the outcomes that children talked to us about. Noble Lords have questioned that research. Qualitative research was carried out by the British Market Research Board and the National Children's Bureau. It is called, Aim High, Stay Real. I shall make copies of it available to your Lordships because clearly it is important for noble Lords, and particularly those who tabled the amendment, to be able to study it in order to consider what has been said about the research. I do not think that anyone has

897
referred to it and therefore I am concerned that noble Lords may not have had the chance to consider it in detail.
I submit that those august organisations carried out a good, qualitative piece of research—not only with children but with parents, carers and other organisations. In the course of their work, they identified and supported what we had set out as the direction in which the Government's vision took us. That qualitative research was then backed up by quantitative research using the replies and responses obtained from young people. I recommend that, before they do anything, noble Lords look at this research, and I should be very happy to discuss it with them. It is important that, when organisations of this calibre are involved, we are clear about what we are describing.
Secondly, I never said—and never would say—that one ends with outcomes. We are proud that, for the first time in a piece of legislation, what we learnt in those discussions with organisations, children, parents, carers, adults and everyone else of any age is on the face of a piece of legislation. But that is the beginning; it is not the end. In relation to the commissioner's job, we are saying, "Please go and talk to children. Make the basis of what you do not what we say as a Government—not even, dare I say, what august organisations working with children say—but what children and young people themselves say. That is important". The outcomes will be tested by that work. That is the critical part.
Therefore, I submit to your Lordships that we are bringing about a "both/and" situation and not an "either/or" one, but the amendment would bring about an "either/or" situation. We have tried within the framework of the UNCRC to include the outcomes. We see that as a starting point. Those two things together balance where the commissioner begins his work. I submit to your Lordships that we should not lose the outcomes—the beginning of the process—in the wonderful opportunity that we have of setting out the work of the commissioner. We should certainly not lose it on the basis that we may not be certain that the research was right.
Therefore, the fundamental problem that I have with the amendment is that the outcomes would be lost. I urge noble Lords, before they do anything in relation to this issue, at least to give me the opportunity to talk about the research and to put it before them. We should at least have the opportunity to discuss the balance again and to query that balance. That is critical.
Noble Lords also said that there are other issues within the amendment. The noble Lord, Lord Campbell of Alloway, talked about assisting children with legal proceedings. Previously we discussed whether the commission was the appropriate place in which to carry out that role. I argued that we should not attempt to displace the processes that are already in place to help children and young people with legal proceedings.
The question is not whether children and young people should have assistance but whether the commissioner is the right person to provide it. My fear
898
remains that we shall create a job for the commissioner that is not doable. The removal of Clause 2(6) would mean that the commissioner could become drawn into individual casework.
We shall come to government amendments which deal with the possibility of the commissioner carrying out inquiries. In all my discussions with noble Lords outside the Chamber, I have felt a degree of consensus that we do not want the commissioner to end up as a final court of appeal for every single individual issue relating to every single child. I think that there is a degree of consensus that that would not be right, yet that would be the result if the amendment were carried. But I do not believe that that is what your Lordships wish, and I think that it would make the job unworkable. One of the things we have to be mindful of, however much we want to address the question and want the commissioner to be as powerful as possible, is that we must make the job doable and allow the commissioner to succeed.
My noble friend Lord Puttnam has constantly said to me—rightly—and to my right honourable friend Margaret Hodge, "Would you apply for this job? Would you accept this job? Would you be willing to do this?" The trouble is that if we make the job overwhelming, we make it impossible to succeed. We make the commissioner become a disappointment. So, we have to be clear about what we want the commissioner to do. We must be clear to other organisations that they do not give up their own responsibilities by having a commissioner in place. They are responsible, each and every one, for ensuring that their services are right and proper for children. They are responsible for ensuring that advocacy and appeals processes work for children. We are not putting in place someone who will take that away from them; that is not the job. We are putting in place someone who, in talking to children and considering the issues, is very clear that it is unacceptable when services fail children. That is very important.
The noble Lord, Lord Roberts of Conwy, spoke of the implications across the United Kingdom. As the noble Lord said, the way things stand at present, to remove this provision means that on non-devolved issues some children would have nowhere to go. I do not believe that that is a consequence that the noble Lord—
Lord Thomas of Gresford: My Lords, does the Minister accept that Amendment No. 26 would fill that lacuna?
Baroness Ashton of Upholland: My Lords, the amendment would reduce the representation of children outside England on non-devolved issues. My noble friend Lady Andrews will talk about what we are considering in the devolved administrations, which I believe will give noble Lords pleasure. I hope that in so doing, noble Lords will feel that we have listened carefully. Those measures are not yet complete but we are listening. As things stand, I hope that the noble Lord will accept that I have to ensure that the House understands precisely the implications of the amendment.

899
Finally, I should like to comment on the extension of the commissioner's remit to include young adults who are in custody, have been in care or who have learning disabilities. I have said that I am considering sympathetically some of the groups mentioned here. A specific amendment will be tabled by the noble Earl, Lord Listowel. In speaking to that amendment we shall say a lot more about what we plan to do for children of the ages mentioned and for particular groups of more vulnerable children and young people. Without pre-empting that discussion, the reason that the amendment is not tabled today is because we are working on ensuring that it is technically correct. It is quite difficult. As to young adults in custody, we have said that they need to be supported properly by adult services. We have made that distinction and continue to do so.
There are fundamental issues here. I believe that this would be a more bureaucratic role and less flexible. More importantly, it would remove the balance that I was keen to accept and on which I thought within your Lordships' House we had reached broad consensus—recognising as a starting point the outcomes that we had identified from the research we had done and the importance of the UNCRC, and that together that would found the basis upon which the commissioner could work.
For all the reasons outlined, I hope that the noble Baroness will feel able to withdraw the amendment and that I can continue discussions and show the research at the next stage.
1.15 p.m.
Baroness Walmsley: My Lords, I am grateful to the Minister for her full response, and to all other noble Lords who have spoken in the debate. I am particularly grateful to the noble Lord, Lord Laming, for pointing out that what we should be doing is producing a commissioner who will act for all children. I hope that when we come to the amendments on equality of opportunity later in our debates they will find favour with the Government. That will ensure that all children's life chances are enhanced by the Bill.
My noble friend Lord Lester asked about the relationship with the UN Convention on the Rights of the Child. I should like to point out that the new version of Clause 2 gives the commissioner the central function of promoting and safeguarding rights which go beyond the welcome requirement to have regard to the UN Convention on the Rights of the Child which is already contained in the Bill. It gives the commissioner the same basic function as those in Wales, Scotland and Northern Ireland. The scope of the convention plainly goes wider than the Government's outcomes, so it is consistent with the Government's concession on the role of the UNCRC that we should pass this amendment. The problem with the outcomes on the face of the Bill is that there would be a tendency for people to limit themselves to those outcomes. We want a "rights based" commissioner, which would go further.
900
I point out to noble Lords that nothing in the amendment requires the commissioner to respond to individual complaints. We all agree, as we have said many times in Committee, that we do not want the commissioner to get bogged down with many individual cases. There is nothing in the amendment which means that he or she would do so. If we are loading a lot of powers on to the new commissioner—
Baroness Ashton of Upholland: My Lords. I thank the noble Baroness for giving way. The deletion of Clause 2 would remove subsection (6), which stops the commissioner being involved in casework. So, it is not true to say that the commissioner would be prevented from that; quite the opposite.
Baroness Walmsley: My Lords, I thank the Minister for mentioning that. However, that is a matter which can be addressed at the next stage. If we are loading powers on to the commissioner, as the noble Baroness, Lady Howarth of Breckland, mentioned, we are doing no more than we have already done with the commissioners in Wales, Scotland and Northern Ireland. The powers of those commissioners have found great favour with the communities in those legislatures and in particular with the children. The word "disappointment" has been mentioned. If we do not have for English children at least as strong a set of powers and as good a set of rights as for children in the other legislatures, we shall create disappointment among them.
The last major Children Act was in 1989, 15 years ago. This could be our last chance for another 15 years to get this right for children. Our vision of a strong, independent, rights-based commissioner is clearly different from that of some parts of this Government. Strong comments have been made in this debate about the amount of consultation with children. The noble Lord, Lord Laming, referred to the many voluntary organisations that speak to children every day of the week and represent their views and feelings. We have been supported in the amendment by all those organisations. It is a most impressive array of organisations representing many millions of children.
Therefore, given the strong feeling—
Lord Campbell of Alloway: My Lords, I apologise for interrupting the noble Baroness. Will she deal with the worries that were expressed not only by me and the noble Lord, Lord Laming, about subsection (7)? How will the provision work in practice?
Baroness Walmsley: My Lords, the noble Lord refers to bringing legal proceedings in subsection (7) of our amendment. I would draw his attention to the fact that it states that,
"where … it appears to the Commissioner reasonable to do so and there is no other person or body likely to provide such assistance or take such action".
Those words give me confidence that this provision would not take up a major part of the commissioner's time and activity. It would be a last resort, but it is something that particularly the Law Society believes is

901
an essential last resort for children that are not being represented as they need to be in any other way. That is an appropriate function for the Children's Commissioner.
So, in view of the very strong feelings expressed by children and by the many organisations that represent them about the weak powers and functions of the commissioner, even with the Government's welcome amendment, which we have incorporated into our amendment, I feel that I would be letting them down if I did not test the opinion of the House.
1.19 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 93.

Division No.1

CONTENTS

Addington, L.

Howard of Rising, L.

Anelay of St Johns, B.

Howe, E.

Astor of Hever, L.

Howe of Aberavon, L.

Attlee, E.

Howe of Idlicote, B.

Beaumont of Whitley, L.

Hylton, L.

Biffen, L.

Jopling, L.

Blatch, B.

Kalms, L.

Bradshaw, L.

Kimball, L.

Bridgeman, V.

King of Bridgwater, L.

Brooke of Sutton Mandeville, L.

Kingsland, L.

Brougham and Vaux, L.

Lester of Herne Hill, L.

Byford, B.

Listowel, E.

Caithness, E.

Livsey of Talgarth, L.

Carlisle of Bucklow, L.

Luke, L.

Carnegy of Lour, B.

Lyell, L.

Chalker of Wallasey, B.

MacGregor of Pulham Market, L.

Clement-Jones, L.

Cockfield, L.

Masham of Ilton, B.

Colwyn, L.

Mayhew of Twysden, L.

Cope of Berkeley, L.

Miller of Chilthorne Domer, B.

Crathorne, L.

Miller of Hendon, B.

Crickhowell, L.

Molyneaux of Killead, L.

Dean of Harptree, L.

Mowbray and Stourton, L.

Denham, L.

Murton of Lindisfarne, L.

Dholakia, L.

Newby, L.

Eccles of Moulton, B.

Newton of Braintree, L.

Elton, L.

Northesk, E.

Ezra, L.

Norton of Louth, L.

Falkland, V.

Oakeshott of Seagrove Bay, L.

Falkner of Margravine, B.

Oppenheim-Barnes, B.

Feldman, L.

Palmer, L.

Ferrers, E.

Patel, L.

Fookes, B.

Peel, E.

Fowler, L.

Perry of Southwark, B.

Freeman, L.

Pilkington of Oxenford, L.

Garden, L.

Plummer of St. Marylebone, L.

Gardner of Parkes, B.

Rawlings, B.

Geddes, L.

Razzall, L.

Glentoran, L.

Redesdale, L.

Greaves, L.

Renton, L.

Hamwee, B.

Roberts of Conwy, L.

Hanningfield, L.

Rodgers of Quarry Bank, L.

Harris of Richmond, B.

Roper, L.[Teller]

Hayhoe, L.

St John of Fawsley, L.

Henley, L.

Saltoun of Abernethy, Ly.

Higgins, L.

Seccombe, B.

Hodgson of Astley Abbotts, L.

Sharman, L.

Hogg, B.

Sharp of Guildford, B.

902

Sharples, B.

Tebbit, L.

Shaw of Northstead, L.

Thomas of Gresford, L.

Shutt of Greetland, L.

Thomas of Walliswood, B.

Skelmersdale, L. [Teller]

Tordoff, L.

Smith of Clifton, L.

Ullswater, V.

Smith of Clifton, L.

Wallace of Saltaire, L.

Stewartby, L.

Walmsley, B.

Strathclyde, L.

Williams of Crosby, B.

Swinfen, L.

Williamson of Horton, L.

Taverne, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ahmed, L.

Hunt of Kings Heath, L.

Allenby of Megiddo, V.

Irvine of Lairg, L.

Amos, B. (Lord President of the Council)

Janner of Braunstone, L.

Joffe, L.

Andrews, B.

King of West Bromwich, L.

Ashton of Upholland, B.

Laming, L

Bassam of Brighton, L.

Lea of Crondall, L.

Berkeley, L.

Levy, L.

Bernstein of Craigweil, L.

McIntosh of Hudnall, B.

Bhatia, L.

MacKenzie of Culkein, L.

Billingham, B.

Marsh, L.

Blood, B.

Massey of Darwen, B.

Borrie, L.

Monson, L.

Brookman, L.

Morgan, L.

Campbell-Savours, L.

Carter, L.

Morris of Aberavon, L.

Clarke of Hampstead, L.

Morris of Manchester, L.

Clinton-Davis, L.

Nicol, B.

Cohen of Pimlico, B.

Northbourne, L.

Corbett of Castle Vale, L.

Patel of Blackburn, L.

Crawley, B.

Pendry, L.

Davies of Oldham, L.[Teller]

Pitkeathley, B.

Desai, L.

Plant of Highfield, L.

Drayson, L.

Randall of St. Budeaux, L.

Dubs, L.

Rendell of Babergh, B.

Elder, L.

Richard, L.

Evans of Parkside, L.

Richardson of Calow, B.

Evans of Temple Guiting, L.

Robertson of Port Ellen, L.

Farrington of Ribbleton, B.

Rogers of Riverside, L.

Faulkner of Worcester, L.

Scotland of Asthal, B.

Filkin, L.

Sewel, L.

Gale, B.

Sheldon, L.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Slim, V.

Golding, B.

Strabolgi, L.

Goldsmith, L.

Tenby, V.

Gould of Pottemewton, B.

Thornton, B.

Graham of Edmonton, L.

Grocott, L.[Teller]

Tomlinson, L.

Grocott, L. [Teller]

Tomlinson, L.

Harris of Haringey, L.

Triesman, L.

Harrison, L.

Turnberg, L.

Haskel, L.

Turner of Camden, B.

Henig, B.

Warner, L.

Hilton of Eggardon, B.

Warnock, B.

Hollis of Heigham, B.

Whitty, L.

Howarth of Breckland, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
1.30 p.m.
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that Report stage begin again not before 2.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Criminal Justice and Court Services Act 2000 (Amendment) Order 2004
The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) rose to move, That the draft order laid before the House on 12 May be approved [19th Report from the Joint Committee].
The noble and learned Lord said: My Lords, I beg to move that the draft Criminal Justice and Court Services Act 2000 (Amendment) Order 2004 laid before the House on 12 May be approved.
The Criminal Justice and Court Services Act 2000 introduced provisions allowing for the taking of samples from persons in police detention after charge, and at other stages in the criminal justice process, for the purpose of testing for the presence of specified class A drugs. Drug testing under these provisions currently applies to persons aged 18 and over and is targeted particularly at those who have been charged with, convicted of, or released from a custodial sentence for a trigger offence as defined in Schedule 6 to the Act.
The current trigger offences are largely acquisitive crime offences under the Theft Act 1968 that have been shown to be closely linked with misuse of the specified class A drugs: heroin, cocaine and crack. Possession and supply offences under the Misuse of Drugs Act 1971, if committed in respect of a specified class A drug, are also trigger offences. Heroin, cocaine and crack cocaine are the drugs that cause the most harm, and on which the Government's drugs strategy is focused.
We now seek to put into effect the Government's intention, stated in the criminal justice White Paper Justice for All, to extend the range of trigger offences to include handling stolen goods and "attempted" acquisitive crimes. The draft order will amend Schedule 6 to the Act to add the offence of handling stolen goods under Section 22 of the Theft Act 1968, and to add offences under Section 1(1) of the Criminal Attempts Act 1981 in respect of handling stolen goods and the existing trigger offences of theft, robbery, burglary and obtaining property by deception.
Making handling stolen goods a trigger offence is a logical addition to the existing acquisitive crime trigger offences. Goods obtained from street crime offences, including mobile phones, and from burglary and other acquisitive crime are often sold to handlers, many of whom themselves commit acquisitive crime to fuel a drugs habit.
It is reasonable to assume that the profiles of offenders charged with attempted crimes and completed crimes are similar. It is logical, therefore, to include the relevant attempted offences as trigger offences to ensure that those who may have a drugs problem are identified and encouraged into treatment in the same way as those charged with the completed offence.
In addition, the draft order adds offences under Sections 3 and 4 of the Vagrancy Act 1824 in relation to begging. The link between begging and specified class A drug misuse is very strong, and we believe that the addition of these offences will be an important measure in combating this criminal and anti-social behaviour. We know that many problematic drug
904
users who beg are not in touch with services and do not receive the help that they need. If those who beg because of their drug misuse are helped to get access to effective treatment, it will help them as well as the communities affected by their anti-social behaviour and those intimidated by begging.
Drug testing on charge is a way of identifying problem drug misusers at an early stage of their contact with the criminal justice system, so that they may be encouraged to address their drug misuse, gain access to treatment or other programmes of help, and be steered away from crime. It is a significant component of the expanding Criminal Justice Interventions Programme, which involves criminal justice and treatment agencies working together to provide a tailored solution for individuals who commit crime to fund their use of class A drugs. Extending the range of trigger offences as proposed in this order will broaden the scope for identifying drug misusers through testing on charge under the programme.
It will also provide an opportunity for persons committing these offences to be picked up at later stages in the criminal justice system where trigger offences are applicable, pending changes relating to sentencing and release on licence being introduced under provisions in the Criminal Justice Act 2003. I therefore commend the order to the House.
Moved, That the draft order laid before the House on 12 May be approved [19th Report from the Joint Committee].—(Lord Goldsmith.)
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord the Attorney-General for his explanation of this order.
In general, we agree with the extension of the trigger offences. Identifying offenders who commit crimes to fund a pernicious drug habit is only to be encouraged so that rehabilitative programmes can be quickly administered and the individuals can be steered away from drugs and crime. Identifying drug abusers is therefore an important task, and broadening the offences which enable police officers to initiate drug testing should help to achieve this.
Although identification is undoubtedly the central issue, unless it is to be followed up immediately by rehabilitation it will be a largely wasted exercise. It would therefore be helpful if the noble and learned Lord could indicate the extent to which the Government expect these new powers to be used and what resources will be available for follow-up rehabilitation.
While the power to require a drugs test may be only a minor inconvenience, rather than a severe punishment or a restriction to one's liberty, we are concerned about a shift that unduly encourages the police to pick people off the street to test them. Trying to crack down on those stealing to fuel a habit by identifying abusers through drug testing is to be encouraged; however, too much power enabling widespread drug testing, some of which will inevitably prove negative, could greatly damage relations between the police and the general public.

905
The Explanatory Notes refer to "supporting research evidence" as a result of which this list of additional offences was constructed. Perhaps the noble and learned Lord could give us some details of this research.
Our concerns are perhaps greatest over the last two trigger offences to be included for the purposes of drug testing: begging and persistent begging. As the noble and learned Lord the Attorney-General pointed out, this comes into effect through amendments to Sections 3 and 4 of the Vagrancy Act 1824. That legislation, created 180 years ago to deal with the social problems arising after the Napoleonic wars, makes it illegal for people to beg, busk and in some circumstances sleep rough. To put that in the context of this legislation, are the police fully justified in randomly drug testing those who beg, busk and sleep rough? Does that not appear to be a somewhat draconian line to take against a group of particularly vulnerable people?
Persons proceeded against in the magistrates' courts in the case of begging numbered fewer than 2,000 in 2002—one tenth of the number proceeded against for handling offences. The logic for enforcing drug testing after a trigger offence is committed depends on the offence committed being drug-related. Certain offences, such as theft or burglary, attempted or otherwise, clearly have a strong link to drug abuse, and it is sensible that the offenders can accordingly be drug tested. Additionally, these crimes are aggressive and malicious. Begging, by contrast, is rarely aggressive, malicious or even, as the noble and learned Lord put it, acquisitive, although persistent begging may be.
The noble and learned Lord claimed a very strong link between crime and the vagrant population. Hazel Blears, his colleague in the Home Office, claimed on the department's website:
"We know that more than 85 per cent of beggars have a drugs or alcohol addiction and are begging to fund their habits".
If that is the case, I understand the logic behind including begging among the trigger offences. But my concern is that that might represent a shift towards saturation drug testing in high-risk areas.
As a result, the detail concerning begging in this statutory instrument could signify, if the powers are to be used aggressively, a substantial policy shift with considerable implications for civil liberties. Will the noble and learned Lord the Attorney-General explain whether or not, with regards to begging, he expects the new powers to test for drugs to be used sparingly, and where there is cause for suspicion, or whether they are to be a carte blanche to test all beggars for drugs? I look forward to hearing the noble and learned Lord's response to the questions, subject to which we support this order.
Lord Dholakia: My Lords, I thank the Attorney-General for his explanation of this order. We do not have any fundamental objection to the statutory instrument, but there are questions that should be put, and there is a need for some clarification.
906
Am I right in saying that the changes will not apply to under-18s? Section 5 of the Criminal Justice Act 2003 amended PACE to lower the minimum age for drug testing from 18 to 14. We must be clear exactly who could be affected by the changes. I also have concerns about the inclusion of begging on the list. I can see a good argument for using police arrest as a means of getting people into treatment. Equally, I am sure that crack and heroin-addicted burglars and shoplifters do engage in begging now and then. As far as I can see though, the order would allow the courts to impose a drug abstinence order, with a regime of testing, on people who are homeless and begging and are highly likely to breach the requirement, often ending up in prisons. I have never seen any statistics on the number of abstinence orders given or the number breached. It would be interesting to know whether such figures are available.
The trigger offences have been included on the basis of some strong supporting research evidence. That there is relevance between trigger offences and drugs is not in dispute. The sooner a drug dependency is identified, the quicker it is to address the issue of drug misuse. Here, I sympathise with and strongly support what the noble Lord, Lord Hodgson of Astley Abbotts, said. I do question the availability of access to treatment or other programmes of help that can steer individuals away from crime. We also need an assurance that we are capable of not only identifying the causes of crime, but have the capacity to provide help. I have some doubt that our penal institutions have such a capacity.
Lord Goldsmith: My Lords, I start by thanking both noble Lords who have spoken for their expressions of support in principle for the changes that are made in this order. I shall need to come back to the specific question of begging. The noble Lord, Lord Hodgson of Astley Abbotts, asked to what extent we expect the powers to be used. In the order of 16,000 persons are presently charged with the offences that are proposed to be added to the schedule. That is to say that 16,000 persons over the age of 18 were proceeded against in the magistrates' courts for handling offences in 2001–02. We have no separate data available for attempted offences, and the noble Lord has already given figures in relation to those who were charged with begging offences. That gives some idea of the order.
The noble Lord also asked about resources for rehabilitation. The Government are investing considerable sums of money in drug treatment. The total annual expenditure is now in the region of £500 million. Resources have been provided to ensure that all those who wish to enter treatment have the ability to do so. The Home Office and the Department of Health have been working jointly on estimating the number of drug users requiring drug treatment. This is about finding solutions to the problems that drug-using creates. Therefore, we entirely see the importance of making sure that these are carried through—not just testing, but testing through to assistance, help and to treatment.

907
The noble Lord asked what the evidence there is to demonstrate the link between these offences and drug-using. In relation to handling, over one-third of those arrested for handling stolen goods in one survey programme were shown to have tested positive for heroin and cocaine or crack. Over half of the group who had been arrested and classified as drug-misusing repeat offenders reported that they had been involved in handling offences within the past year. The statistical evidence is strong. There are no separate data in relation to attempting, but as I said, we think that the profile for those who commit completed crimes and those who commit attempted crimes is likely to be similar, and the link for the substantive crimes has already been clearly shown.
So far as begging is concerned, the statistical evidence is strong. A research study found that 86 per cent of beggars were currently using drugs. The study, which covered five major towns and cities, estimated that 75 to 90 per cent of beggars used class A drugs, primarily heroin, and for many of those the routine of begging sufficient cash to fund that habit was a total preoccupation.
These offences are being included because of their close link with the specified class A drug misuse to help combat the anti-social behaviour that is associated with begging offences. I emphasise to both noble Lords that not only is the link between drug abuse and the offences clear, but at the moment these people are not getting the help that they need. Including these offences will assist, by enabling the police routinely to test those who are charged with begging offences and then encourage those who are tested positive into effective treatment or other programmes. If those who beg because of their drug problems are helped in this way, it will help them, it will help communities, and it will help those people who are presently intimidated by begging.
There are other changes, as noble Lords will know, in relation to how we will deal with begging, which will include the ability to impose community penalties in the future. A failure to comply with community penalties could give rise to enforcement procedure; there is nothing new about that. The other point raised by the noble Lord, Lord Dholakia, was whether changes would apply to those under 18. The extension in this order will affect young people only when the relevant provisions in the 2003 Act for drug testing those aged 14 and over are brought into effect. They will have to be commenced, and notification will have to be given to the chief officers of police concerned. I was asked for the figures on the number of tests and breaches. I cannot answer that standing at the Dispatch Box today. If figures are available in a form that will help the noble Lord, I will ensure that those are sent to him and I will put a copy in the Library.
I hope that I have dealt with the points that have been raised. On that basis, I invite the House to approve the order.
On Question, Motion agreed to.

Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2004
1.48 p.m.
Lord Goldsmith Lord Goldsmith rose to move, That the draft order laid before the House on 26 April be approved [16th Report from the Joint Committee].
The noble and learned Lord said: My Lords, this order relates to the code of practice for conditional cautioning, and it will govern the conditional cautioning scheme for which provision is made in Part 3 of the Criminal Justice Act 2003. I recall debating these provisions with noble Lords present today, and we talked then about the code. Publication of the code is a statutory requirement under Section 25 of the Act, and the scheme cannot be implemented until it has been approved by both Houses.
The scheme allows the prosecutor to give a conditional caution, provided that the offender is an adult, admits the offence during a formal interview, that there is sufficient evidence to prosecute, and that the offender understands the effect of the caution and agrees to it.
The scheme is aimed at cases where the public interest would be met more effectively by offenders carrying out specified conditions rather than by being prosecuted. The conditions must either help rehabilitate the offender or ensure that he or she makes reparation for the effects of the offence on the victim or the wider community. Offenders who fail to comply with the conditions may, and usually will, be prosecuted for the original offence. The main considerations in deciding whether a conditional caution is appropriate are the seriousness of the offence, the offender's criminal record and the value of the proposed condition.
In drafting the code, account was taken of the helpful comments made by noble Lords when this part of the Bill was debated, and we are grateful for those comments. After consultation with criminal justice system partners, the Home Secretary published the code in draft on 19 February. During public consultation between then and the end of March, we received 30 responses, in the light of which some minor revisions were made to the draft. The revised draft was agreed by the Home Secretary, the Director of Public Prosecutions and me, and was laid before Parliament on 19 April 2004. It was debated in another place on 18 May.
The code contains advice about the sort of case in which a conditional caution is likely to be appropriate and guidance about the procedures to be followed. The code makes clear that it will be for the prosecutor to decide whether a conditional caution is appropriate, taking into account victims' interests and views, and for the police to administer.
The prosecutor will usually be the Crown Prosecution Service, but the Act allows conditional cautions to be given on the authority of other specified "relevant prosecutors", and the code applies equally to them. The relevant prosecutors listed in Section 27 of the Act are government departments, but there is provision for adding to them by statutory instrument,

909
and consideration will be given to requests by other official prosecutors to be specified for the purpose of using conditional cautions.
Since conditional cautioning will work only if the conditions imposed are carried out, the code prescribes stringent monitoring arrangements. It will be for the offender to prove to the police that the condition has been met. The police will report to the CPS any cases where it has not, including whether the offender claims to have a reasonable excuse. It will then be for the CPS to decide whether a charge should be brought. The expectation is that it usually would.
Conditional cautioning is an important new means of securing the right disposal in a wide variety of cases. That is reflected in the different ways in which it will be brought into effect. If the code is approved today, conditional cautioning will first be used in combination with restorative justice as part of a research project that is due to start next month in parts of London. Then there will be a phased implementation of the scheme in parts of several criminal justice areas starting in the autumn.
The basic conditional cautioning scheme will be used for relatively low-level crime. But in some areas it will involve the use of restorative justice: in others, the drugs intervention programme will be used so that the offender has an incentive to accept treatment. Later, when the first community justice centre begins to operate in Liverpool, it will be able to make use of conditional cautioning.
The code of practice will be supplemented by specific guidance on those aspects as well. The scheme will be evaluated in those areas to see how it works best, to determine best practice and to assess resource and funding requirements. There will then be an opportunity, if it is decided that the scheme should be implemented nationwide, to refine the guidance—if necessary, including the code—before that is done.
I strongly believe that the conditional cautioning scheme will be an important new tool in the criminal justice system, which will help to divert appropriate cases from the court system. It will build on the close working relationship that the police and the Crown Prosecution Service are developing through the new approach to charging, which is a result of the Criminal Justice Act 2003. It will be a good example of positive and constructive working within the criminal justice system. I beg to move.
Moved, That the draft order laid before the House on 26 April be approved [16th Report from the Joint Committed.]—(Lord Goldsmith.)
Lord Hodgson of Astley Abbotts: My Lords, again, we are grateful to the noble and learned Lord for his explanation. On this side of the House we welcome the introduction of the code of practice for conditional cautioning. As the noble and learned Lord the Attorney-General has pointed out, the code plays an important role in detailing the practical workings of the system for conditional cautions. The introduction of conditional cautions in Part 3 of the Criminal Justice Act 2003 was widely welcomed during our
910
debates in Committee on that Act. I shall endeavour not to repeat the questions that I raised on 14 July last year.
The code of practice is pretty thorough in its explanation of the process of issuing and fulfilling conditional cautions, but there are still a few queries that appear to be left hanging unanswered on which some further clarification by the Government could be helpful. Our first concern is about who has the power to give conditional cautions. Noble Lords will see that Section 22(4) of the Criminal Justice Act lists those who are authorised to give a conditional caution. Subsection (4)(c) of that list says:
"a person authorised by a relevant prosecutor for the purposes of this section".
That clearly requires further definition. It is even acknowledged in Section 25.
Section 25 sets out some important provisions that should be included in the code of practice for conditional cautions. Subsection (2)(c) states:
"The code may, in particular, include provision as to— … the persons who may be authorised by a relevant prosecutor for the purposes of section 22".
Paragraphs 1.4 and 1.5 of the draft code of practice are helpful for giving further examples of who might be defined as a relevant prosecutor, but virtually nothing is given to enlighten us as to who the persons are that may be authorised by a relevant prosecutor to give a conditional caution. They are mentioned only at the end of paragraph 1.4 where it states:
"The authorised person should be suitably trained".
Have the Government given any thought to giving a tighter definition of individuals who may carry out that key role in the code of practice?
The second concern involves the timeframe in which a caution is to be handed out. Paragraph 2.6 of the code of practice describes what could happen if the CPS decides on a caution being issued with conditions involving the restorative justice process, to which the noble and learned Lord the Attorney-General referred. It states that,
"the suspect should be bailed under s37(7)(a) [of PACE] for a period that will allow those processes to take place before the resulting conditions are approved by the prosecutor and the offer of a caution made to the offender".
Surely, a time limit should be placed on that period.
As I recall, in Committee, there was general agreement that the conditional caution should be administered as swiftly as possible. While I understand that extra time may have to be taken to decide the most effective restorative conditions, the efficacy of the system could be called into question if there is not some limit to the time in which the prosecutor has to approve of those conditions on the ground, if no other, that undue delay is the enemy of justice.
Our third point concerns the requirements of issuing a conditional caution. Although the list of requirements referred to by the noble and learned Lord in his opening remarks are numbered one to five and there is a simple five-step procedure that an officer must carry out in issuing a conditional caution—the five requirements of Section 23 of the Criminal Justice Act—I do not see

911
either in the Act or the code of practice that it is made explicit that those requirements must be carried out in the order listed.
It would be helpful if that were made explicit in order to avoid the possibility, for example, of someone admitting an offence, signing the document to give his consent to being given the conditional caution and then being told that it will be held on his record and could be disclosed to potential employers. If he had known about that latter point prior to admitting to the offence and agreeing to the conditional caution, he might not have signed the document.
I accept that the ordering of those requirements is indicated by the wording of the Act. It would be hard to carry out the fifth requirement—getting the offender to sign the document—without completing the previous four requirements. Would it not be helpful to make it explicit that requirements 1 to 4 must be fulfilled before requirement 5?
Our final concern involves the monitoring of the offender while he fulfils the conditions of the caution administered. Section 25(2)(h) of the Criminal Justice Act states that the code may in particular give provision to,
"the monitoring of compliance with the conditions attached to such cautions".
In Committee, we expressed a concern about where the burden of responsibility would fall regarding monitoring. We were told by the noble and learned Lord, Lord Goldsmith, that the supervision and monitoring of the conditional cautions would not be carried out by the probation service but by,
"other agencies including the Crown Prosecution Service".— [Official Report, 14/7/03; col. 660.]
We had hoped that the code of practice would further expand on this. It would be helpful if the noble and learned Lord could bring the House up to date on the relationship between the code and Section 26 of the Act, which is entitled,
"Assistance of National Probation Service".
Paragraphs 10.1 and 10.7 of the code come under the heading "Monitoring and Compliance". That is slightly misleading because only paragraph 10.1 is concerned with monitoring; the remainder concern compliance. The code does not give proper examples of suitable or relevant monitors and who would direct the monitoring beyond the footnote at the bottom of page 9 which states:
"Monitoring may be carried out by an appropriate agency nominated by the authorised person"—
so far so vague, I felt, and continued by stating—
"This might include the use of Community Support Officers or Neighbourhood Wardens, where available, who could check on the completion of a condition which includes public work in the community".
Are these the "other agencies" to which the noble and learned Lord referred? Will it always be the relevant prosecutor who chooses the appropriate monitor, and will a number of agencies be called upon? If so, which agencies do the Government believe to be appropriate for the task of monitoring? These questions are not really covered in the code of practice.
To summarise, we welcome this code of practice but believe that it could have been further improved if it contained provisions, first, to explain who will be authorised by a relevant prosecutor to give conditional cautions; secondly, to give a maximum time limit between the apprehension of an offender and the issuing of a conditional caution; thirdly, to enforce and make explicit the order of the five requirements for issuing a conditional caution; and, finally, to give a fuller overview of what agencies are expected to supervise the monitoring of the conditions set for offenders.
Those issues apart, we support the order.
2 p.m.
Lord Dholakia: My Lords, Members on these Benches welcome this order on conditional cautioning. It is generally accepted both among practitioners and those who provide voluntary assistance in the criminal justice system that cautioning systems are effective and help many people to stay away from crime. The extension of the cautioning scheme will assist in further building the confidence of the public in the process, provided that it is kept informed about the success of such programmes. Too often, publicity is generated about a few cases of failure rather than the very high success rates that have been achieved.
I welcome the programme on restorative justice because I believe that it is important for victims to become involved. It would be helpful to know how the pilots and other projects involving victims have worked. Ample evidence from abroad suggests that victims who take part in the process show satisfaction following that involvement.
Paragraph 5.2 of the code of practice deals with ways in which reparation may be made under the 2003 Act through work in the community. How do we involve local community groups in identifying reparation projects? The real success of this scheme will depend on the co-operation we receive not only from victims, but also from the community they represent.
Let me explain one other concern I have about the order. Some years ago, when I worked at the Commission for Racial Equality, I undertook a major research project on juvenile cautioning and the police. We looked at all the available evidence from a number of police forces around the country. The striking conclusion we reached, one that was not disputed by the police, was that when all the variables which resulted in the cautioning exercise were taken into account, black youngsters were less likely to be cautioned and more likely to end up in the courts. Cautioning is the gatepost from which either the criminal career begins or the individual is unlikely to offend in the future.
My point in raising this issue, and taking into account the percentage of black people in our penal institutions, is to ensure that there is adequate provision to monitor the conditional cautions administered by the police and the CPS. I am not asking simply for the provisions already set out in the Bill to be followed, rather we should

913
consider whether entry to the cautioning scheme is racially biased. This is important because, despite the code of practice, there is discretion over the way cautions are exercised. That ought not to have an adverse effect on certain sections of our community.
Lord Goldsmith: My Lords, I am grateful for the welcome given by both noble Lords. I agree in particular with the opening remarks of the noble Lord, Lord Dholakia, about the importance of schemes which win the confidence of the community by involving both it and victims, and his point that we need to publicise the success rather than the failure of aspects of the criminal justice system.
I turn to the specific points raised. The noble Lord, Lord Hodgson of Astley Abbotts, picked up on the question about who has the power to give conditional cautions. We debated this at some length when the Bill was going through the House and so I shall put my response briefly: it is for the prosecutor to decide whether a caution is appropriate and what the caution conditions should be. When one talks about an authorised person delivering the caution, it is not an unimportant act, but it is the act of getting the offender to agree to the conditions and to sign them. It is not a decision about whether it is appropriate because that is a matter for the prosecutor. In those circumstances, it is the Government's view that the description of "authorised person" in the Act is perfectly sufficient. It identifies that such a person may be a constable.
Although I am sure that the noble Lord has read it, I draw attention to paragraph 2.4 of the code which makes it clear that the police have no discretion in respect of conditional cautions as they do in relation to traditional cautions. It is for the prosecutor to decide, and it is only where the prosecutor considers it appropriate to do so, that a conditional caution will be granted.
The noble Lord went on to express the hope that conditional cautions would be dealt with speedily, both in determination of the caution and perhaps also in seeing the caution and its conditions through. Paragraphs 6.1 and 6.2 deal with the length of time during which the conditions will operate, recognising that normally one would want the conditions to be concluded within a six-month period, because otherwise it may be impossible to prosecute for the original offence.
Lord Hodgson of Astley Abbotts: My Lords, I thank the noble and learned Lord for allowing me to intervene. It was the first line of paragraph 6.1, stating that the,
"deadline for the completion of the conditions should not be too long",
which excited my interest.
Lord Goldsmith: My Lords, it is right that the deadline should not be too long because the scheme will work best if it is seen to provide a reasonably quick response to offending behaviour. The CPS will endeavour to determine without delay those cases which have to be
914
bailed pending its consideration, but we hope that most cases will not need to be bailed at all. Moreover, the new arrangements now being rolled out nationally, under which prosecutors will be available for face-to-face discussions with the police at the time of the charge—they will be deciding on the charge—will mean that a conditional caution can be the subject of consideration at a very early stage. We shall see how that progresses during the course of the different forms of initial implementation to which I referred earlier.
The noble Lord asked that we should make it clear that the offender should not be expected to sign until he has been told all the things he needs to know in order to consent. That is made absolutely plain on the face of the code, and that is what will happen. In order to give his consent, the offender must be told those things he needs to know for that purpose.
On monitoring and who is to undertake it, subsequent to my remark to which the noble Lord referred when I said that there was a question over whether the probation service would be involved, we included an amendment so that it could be. There was a statutory prohibition, but this House has helped us to get over that problem. However, one of the things we are looking at during the initial implementation of the scheme is the best way to monitor. The probation service will not be involved in most of the schemes I have referred to, except possibly in the restorative justice diversion pilot, but we shall be looking at that as we work through the schemes. At some stage when it is appropriate, I shall ensure that this House is informed of the results of those evaluations, perhaps by way of a short Written Statement. I hope that that will be helpful to the noble Lord.
Finally, the noble Lord, Lord Dholakia, made an extremely important point about ensuring that in this case, as in all other cases, the operation of criminal justice sanctions are not racially biased. I agree entirely with the noble Lord about the importance of that. He will know that work has been carried out—for example, the Crown Prosecution Service Inspectorate has considered the impact of racial elements in other aspects of the work of the Crown Prosecution Service—and I have no doubt that the Crown Prosecution Service and its inspectorate will keep this issue closely in mind—as, indeed, will I.
On Question, Motion agreed to.

British Transport Police (Transitional and Consequential Provisions) Order 2004
2.10 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft order laid before the House on 20 May be approved [20th Report from the Joint Committee].
The noble Lord said: My Lords, the British Transport Police Authority is to be established on 1 July this year under provisions of the Railways and Transport Safety Act 2003. The authority will oversee and manage the British Transport Police. It will replace the British Transport Police Committee, appointed by the Strategic

915
Rail Authority, which currently oversees the running of the force. The new authority will also take over from the Strategic Rail Authority its responsibilities as "employer" of the British Transport Police.
The Government's guiding principle in setting up the new authority is to mirror for the British Transport Police as fir as possible the way in which local police authorities are organised and governed under the Police Act 1996. The creation of the new authority for the BTP is therefore a vital step in improving the BTP's public status and accountability.
The purpose of the order is to provide for the transfer of staff, pension funds, property, rights and liabilities of the British Transport Police from the Strategic Rail Authority to the new BTP Authority.
The principal effects of the order are firstly to ensure that arrangements are in place for the first meeting of the authority. The chairman is required to convene the meeting and decide where it is to be held. The location of the meeting is to be published and the chairman must notify each member to attend the meeting. At this first meeting the chairman is to appoint a clerk to the authority and determine the procedures to be applied to the meeting.
The order enables a level of continuity to be maintained during the transition stage by allowing for the budget, objectives and policing plan already set by the BTP Committee for 2004–05, together with the strategic plan for 2003–06, to be treated as having been set by the new authority. It does not, however, shackle the authority which, if necessary, can make adjustments during the course of the year.
The order also provides for the formal legal transfer of all BTP officers and civilian support staff from the Strategic Rail Authority to the new authority. Similarly it provides for the transfer of property, rights and liabilities relating to the BTP which are currently the legal responsibility of the SRA.
We do not foresee any difficulties for the SRA and the authority in agreeing the detail of these transfers, but the order puts in place a mechanism for resolving any dispute that may arise. This mechanism enables the authority and the SRA to appoint a person to determine the dispute, and if they cannot agree on who to appoint then they can ask the Secretary of State to appoint an appropriate person.
Next, the order provides for the authority to assume immediately the SRA's powers, duties and obligations in respect of pension provision for police officers and support staff. It ensures that the Secretary of State retains his current powers of consent in relation to the arrangements for support staff pensions once those staff move from the BR section to the new BTP Authority section of the railways pension scheme. The order also introduces into the scheme documentation, for the first time, a requirement for the prior consent of the Secretary of State in relation to future benefit changes for police officer pensions.
The British Transport Police is funded by the rail industry through a series of contracts known as police services agreements. The order therefore makes provision for these existing agreements to continue to have effect.
The order also ensures that existing agreements between the SRA and the BTP relating to rates of pay, hours of duty and conditions of service will continue to apply to transferred staff. Special police constables are not employees of the force and so the order also makes provision for the conditions under which special police constables will serve in the BTP. It makes transitional arrangements in relation to the British Transport Police Federation, the BTP union.
Finally, the order makes consequential amendments to primary legislation so that references relating to the SRA or the British Transport Police Committee are, where appropriate, updated to reflect the transfer of the BTP to the new authority and are consistent with the terms of the Railways and Transport Safety Act 2003.
The order is very much a technical legal instrument, essential for providing the authority with the staff and other assets it needs in order to function properly. I beg to move.
Moved, That the draft order laid before the House on 20 May be approved [20th report from the Joint Committed.]—(Lord Davies of Oldham.)
Earl Attlee: My Lords, I am grateful to the Minister for his explanation of this important order. I have no problem with what the order does, but I am rather alarmed at the cost of the new police authority. According to the Explanatory Notes, the first year costs will be £863,000, made up of the start-costs of £563,000 and an additional annual cost of £300,000. This will be expenditure on an organisation of which the British public will be blissfully unaware; if it was not there, they would never notice the difference.
If the extra costs in the first year are £863,000, what will the annual costs of the new police authority be? It is no use saying that it will be only a small proportion of the £162 million cost of the British Transport Police budget or that the cost is not borne by the taxpayer. The railway industry pays for the British Transport Police, but that industry is heavily subsidised by the taxpayer. Money expended on the police authority will not be available for policing or providing public rail services.
My concern is centred not only on the British Transport Police Authority but on the high levels of expenditure generally on organisations with no obvious direct benefit to the public.
On a brighter note, your Lordships increased the jurisdiction of the British Transport Police during the passage of the Terrorism Act. Can the Minister give any examples of the benefit of extending the jurisdiction of the British Transport Police?
Lord Bradshaw: My Lords, we welcome the order but have some questions. If the Minister is not able to

917
answer them today, I should be grateful if he would communicate in writing later so that we might be advised of them.
I differ from the noble Earl, Lord Attlee, in that I believe the public would notice a difference if the British Transport Police disappeared. One has to note that it was only about six weeks ago in Madrid that a most terrible disaster occurred.
Earl Attlee: My Lords, the noble Lord is quite right, but I was referring to the authority and not to the police force. The police force is absolutely essential; it is the authority that I am worried about.
Lord Bradshaw: My Lords, I want that to be quite clear because I believe that, particularly in London, the British Transport Police are carrying out a vital role in combating terrorism.
I should like the Minister to address the question of funding. Although he has described the funding arrangements that will exist, we are well aware that the Secretary of State in another place is engaged on a review of railway finances. That review ought to address—I believe that it may do so, although I do not know—the issue of funding the railway police. The existing system under which the chief constable has almost to go round on bended knee to train operators to get the money—which comes mostly from the taxpayer, as the noble Earl, Lord Attlee, said—seems to be a particularly circumlocutory method of getting the money. Why does not the Department for Transport pay the money directly to the British Transport Police instead of paying it in subsidy through the train operators' franchises or other agreements, and then the train operating companies handing it over to the British Transport Police after a great deal of costly and lengthy argument? It should go directly to the police force because it has to construct an annual budget and needs to know whether the money will be available.
In this context, there appears to be an element of policing relating to public order and terrorism which goes beyond that which is of general interest to a railway passenger but which touches on us all in one way or another.
I am also very anxious that any review of the British Transport Police and its funding deals once and for all with the powers of the police. We have amended the powers. The noble Earl, Lord Attlee, referred to the extension of powers in respect of the terrorism legislation, but there is a need to make sure that police powers generally are the same for the transport police, the MoD police, the nuclear police, and so on. If a policeman is in uniform and out on the street, he ought to be quite clear that his duty to the public is to intervene if he sees a crime being committed or is approached by a member of the public for some sort of direction.
I think that this is understood, but I ask that any review should make it clear to the British Transport Police that with the setting up of the Rail Accident
918
Investigation Branch, the role of the police in investigating railway accidents should be confined to those areas where it appears that a criminal act has been perpetrated. We should not expect the British Transport Police to carry out the technical aspects of railway accident investigation which they are singularly ill equipped to do.
Finally, I turn to the funding of rail travel. Many railwaymen do not travel by railway because their travel facilities were taken away with privatisation. I know that the TOCs do not agree, but it is important that the travel facilities which are enjoyed at present by the police and police staff continue so that railway staff travel by rail rather than use their cars. In that way, they can see the system that the public have to put up with, day by day.
Apart from those points—and I am certain that I will not get a straight answer to them now because the Minister may not be able to give me one—I generally support the order.
Lord Berkeley: My Lords, I, too, support the order, which comes out of the legislation passed last year. It is very welcome. As my noble friend said, the move mirrors the arrangements of local police forces in having an authority. It would be nice if the Government could publish the names of the members of the authority if they have not already done so. I did not quite hear whether my noble friend mentioned that in his opening remarks.
Although the transport police will have the same structure as local police forces, it is worth saying that the importance of having a specialist police force for the railways has never been greater than it is today. I accept what the noble Lord, Lord Bradshaw, said about changes regarding the Rail Accident Investigation Branch. It is very important that this force survives and prospers. We must also remember that half its activities are directed at London Underground, so the position is slightly skewed.
My concern is funding, a point that was also raised by the noble Earl, Lord Attlee, and the noble Lord, Lord Bradshaw. Both noble Lords said that it all comes out of the Government's pocket in the end. Well, some of it does, but, as chairman of the Rail Freight Group, in which I declare an interest, let me make it clear that the rail freight industry does not receive a Government subsidy. Rail freight tries to compete with road freight, whose policing is not paid for by the road freight industry. This is not new—I have mentioned it many times before.
There are strong arguments from many quarters to fund the BTP on the same basis as other police forces and enable the passenger and the freight industry, whether it is in the private or public sector—as much of the passenger industry is—to compete and operate on the same basis.

919
As the noble Lord, Lord Bradshaw, said, it would be very nice if some indication of changes to funding arrangements were made in the outcome of the review, which I believe is due next month. Other than that, I support the order.
Earl Attlee: My Lords, before the noble Lord, Lord Berkeley, sits down, does he agree that the road transport industry is rather more heavily taxed than the rail freight industry?
Lord Berkeley: My Lords, I certainly agree that the road freight industry is more heavily taxed, but most specialists in the field would still accept that it does not pay all the internal and external costs that it imposes on the environment and on the roads.
Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have contributed to this short debate. I hear what the noble Earl, Lord Attlee, says about creating a body about which the public will be blissfully unaware. In some ways, of course, supervisory bodies of this kind are doing their job well if the public is unaware of them, because the only time they come to public attention is when things go manifestly wrong. In seeking to create an authority which is comparable to and parallels the way in which our police services are governed by local police authorities, we want a structure which makes the transport police accountable. The body becomes significant if a significant complaint ever materialises about the operation of the police. Any offended member or members of the public will be very concerned to have a body which is accountable, to say nothing of issues that can arise when public money is involved, for which we need a structure that is accountable.
I note what the noble Earl says about costs. The biggest aspect of the additional costs in setting up the organisation is that the number of members has been increased from nine to 13. That changed the calculations based on the original numbers. One or two other areas have necessitated a rather greater expenditure than the original estimate.
Although not all members have been appointed to the authority yet, Sir Alistair Graham has been appointed as chair. That has been made public and I am merely confirming the excellent appointment of Sir Alistair to carry out this very important role.
I recognise that there are areas of concern on extended jurisdiction. The noble Earl, Lord Attlee, asked whether I could cite instances. As the noble Lord, Lord Bradshaw, indicated, policemen are policemen. They are people with authority. The public are in need of police support and protection on occasions which no one can predict. It would look very odd to the public if a police officer stood idly by if something were not in his immediate jurisdiction when the public interest would be served by putting all hands to the pump. He may, indeed, be the only figure of authority there.
920
As has been recognised in debates on these issues, the concept of extended authority is predominantly related to potential terrorist attacks and how to prevent them. If such a disaster should occur and authority must be exercised, it makes sense to incorporate the transport police. We cannot, as he knows, go all the way with the noble Lord, Lord Bradshaw, on all aspects of all police forces in their various capacities in this country. However, the intention is, as far as possible, to ensure that the British Transport Police can exercise proper authority when that is needed.
Travel facilities have been mentioned. I am afraid that the principle upon which we are working is that all those in employ up until 1996 will maintain their travel facilities and benefits. The difficulty is that the extension of benefits to employees joining the staff after 1996 would be paid for by the company carrying them. If we insist by legislation that these benefits are carried over into the new system then the Government can rightly be requested to make necessary provision for such benefits. That raises a real difficulty.
Lord Bradshaw: My Lords, does the noble Lord agree with me that the costs imposed by the additional travel of the people concerned are so small that it is doubtful that one extra train would be run on the system? Would he, in any remarks he makes, address the train operating companies and say that it is to their benefit that these people are on the system?
Lord Davies of Oldham: My Lords, I hear what the noble Lord says. He has a point. I am in danger of fulfilling his prophecy that I would not give him a straight answer, but he meant to say that I would not be able to give him a full answer in every respect. I certainly endeavour to give all answers as straight as I possibly can. I appreciate that his point is on the margin. But he will also recognise that there is the problem of the Government incurring additional costs in that respect.
In terms of the general issue introduced by the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley about the fairness of the allocation of such costs and who should bear them, we had extensive debates on this in the passage of the legislation. As my noble friend indicated in his modest manner, he has, from time to time—virtually every three weeks—alluded to that point since the last legislation was put on the statute book. He has taken his opportunity again today. I think that he will recognise that an order is slightly more narrowly confined than a debate about the proper allocation of costs but he has taken his opportunity to voice his real concerns in this area again. I congratulate him on having done so. I have no doubt that he will continue to make these representations whenever he feels justified. On the basis of those points—
Earl Attlee: My Lords, I am grateful to the noble Lord for the answers that he has given to noble Lords,

921
but I have a horrible suspicion that he has come with his order instigating the police authority without knowing what the total costs of it are.
Lord Davies of Oldham: My Lords, I have a figure of £750,000 for the first year of its operation, its inaugural period. I have already recognised that that is higher than the original estimate. I have given some indications of why it is higher. I recognise the noble Earl's scrupulous attention to detail with regard to public finance. I am seeking to establish before the House that this authority is being established according to proper principles of the disbursement of public moneys. I hope that I have succeeded in answering his particular questions on specific costs. But I hear what he says. I merely indicate that the distinction between the estimate and the reality of the first year is not an unknown phenomenon in the establishment of a public body of this kind.

Transport Act 2000 (Consequential Amendment) Order 2004
2.34 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft order laid before the House on 7 June be approved [21st Report from the Joint Committee].
The noble Lord said: My Lords, this is a technical order that seeks to make a minor correction to Section 44(10) of the Civil Aviation Act 1982.
Section 44 of the 1982 Act gives the Secretary of State powers to obtain, by order, rights over land to secure its safe and efficient use for civil aviation purposes. The Secretary of State may exercise those powers in relation to any land that is vested in, or will be acquired by, "relevant authority" as defined in Section 44(12) of the 1982 Act. As originally enacted, Section 44(7) prohibited interference with any works carried out on, or anything installed on, land subject to an order under Section 44. Section 44(10) sets out the penalties for contravening Section 44(7).
When National Air Traffic Services was established as a public/private partnership under the Transport Act 2000, Parliament agreed that it should be granted certain powers in relation to land, for example, compulsory purchase powers, and statutory undertaker status. In addition, the powers exercisable by the Secretary of State under Section 44 had to be amended and Section 44 subsections (6) and (7) of the 1982 Act were duly amended to include reference to the holder of an air traffic services licence.
The amendment to Section 44(7), however, was made in a way that divided the existing section into three parts: now subsections (7), (7A) and (7B). Section 44(7A) now contains the prohibition on interfering with any works or anything installed on land that is subject to an order under Section 44.
Unfortunately, Section 44(10) was not amended at the same time and it still, regrettably, refers to Section 44(7). It is necessary to make this amendment so that the penalty in Section 44(10) can correctly attach to the prohibition in new Section 44(7A). This is what the Transport Act 2000 (Consequential Amendment) Order 2004 seeks to do.
The order is amending primary legislation, so it is only right that it must be subject to affirmative resolution. It is, however, doing no more than bringing other relevant legislation into conformity with the Transport Act 2000 and the policies agreed by this House during the passage of that Act. It is not paving the way for, or implementing, any new policies and it is not bestowing new or additional powers on NATS. I therefore hope that the House will now agree to the order. I beg to move.
Moved, That the draft order laid before the House on 7 June be approved [21st Report from the Joint Committee.]—(Lord Davies of Oldham.)

Children Bill
2.36 p.m.
Consideration of amendments on Report resumed on Clause 2.
The Deputy Speaker (Baroness Turner of Camden): My Lords, as Amendment No. 4 was agreed to, I cannot call Amendments Nos. 6 to 13 because of pre-emption.
Lord Northbourne Lord Northbourne moved Amendment No. 5:
Page 1, line 9, at end insert—
"( ) For the purposes of this Part the word "interests" used in the context of children is to be understood as referring both to those things which are of interest to children and to those things which are or may be in their best interests."
The noble Lord said: My Lords, I am slightly shaken by the changes in the Bill that took place before luncheon. I am told that I am allowed to move this amendment but that I am pre-empted on the amendments that follow it. So I shall have to bring the issue of the rights of children and the rights of parents back at a future time.
This is a small amendment. In Committee, I raised the issue that in the then drafting of the Bill the word "interest" is used ambiguously, as it is in the amendment tabled by the noble Baroness, Lady Walmsley. I must say that it is more ambiguous in the original Bill than it is in the amendment. "The interests of children" can mean those things that interest children or it can mean those things that are in the best interests of children.
The Minister explained that this was a subtle piece of wording intended to be understood to mean both those things. I believe that it is unsatisfactory to have one word that is meant to mean two different things and, having studied the Bill and the drafting of the clause carefully, it seems to me that the concept of the views and interests of children was closely woven into the Government's text. Therefore, the way to address this problem is simply to take a sentence to

923
define the two different meanings of "interests" in the Bill. I believe that this will avoid misunderstanding in the future. It might even avoid litigation in the future. I therefore commend the amendment to the House. I beg to move.
Lord Skelmersdale: My Lords, there is some confusion. By virtue of Amendment No. 4 being carried, Amendments Nos. 5 to 13 are not to be discussed. Therefore, we ought to discuss Amendment No. 14.
Baroness Ashton of Upholland: My Lords, my understanding is that Amendment No. 5 is not pre-empted—Amendments Nos. 6 to 13 are pre-empted.
I am grateful to the noble Lord, Lord Northbourne, for his amendment. As he said, Amendment No. 5 would introduce a definition of "interests" as relating both to what is in the best interests of children and to what interests children. I believe that I am the culprit as regards the confusion that has arisen through what I said in Committee. It is a case of mea culpa in that respect.
I need to clarify how we have used the term "interests" in this part of the Bill. While the commissioner will concern himself with the best interests of children and with what interests them, the term "interests" in Clause 2 relates to the former interpretation only; that is, what is in children's interests—in other words, what is beneficial or advantageous to children. In determining that, the commissioner must have regard to the UN Convention. He or she will also take into account the views of children and others about what is good for children, and therefore in their interests.
The other concept—that of what interests children—is covered by the "views" of children. In expressing their views, children will make clear to the commissioner what interests them and what they think about such matters.
I hope that with that clarification I have set the record straight. I am very grateful to the noble Lord for returning to the matter. I hope that I have clarified the meaning of "interests" and that noble Lords will consider that the amendment is unnecessary.
Lord Campbell of Alloway: My Lords, in the ordinary way I would have supported this amendment, but the difficulty is in fact on Amendment No. 4 on the—
Baroness Andrews: My Lords, I am so sorry. I have to say once again that the—
Lord Campbell of Alloway: My Lords, I am referring to Amendment No. 5. With the leave of the Front Bench opposite I should like to say what I have to say. It is relevant or I would not be saying it. It is relevant to the structure of the Bill.
This is a definition clause in effect which is to be added on to Amendment No. 4, which I did not support—I abstained. I did not think that the argument was made out. But is it necessary to have a
924
definition clause? Where is the requirement? Is there really any doubt about what the interests of the children are? I would have raised this on the Bill in its original form or on the amendment.
Lord Northbourne: My Lords, I am most grateful to the noble Baroness for her remarks. I confirm to the noble Lord, Lord Campbell, that there probably is not a necessity for this amendment in that the noble Baroness has now explained that "interests" means the best interests. Will the noble Baroness go just one stage further and not only convince their Lordships but also the world by putting "the best" in front of "interests" in the text of the Bill? I shall perhaps consider moving an amendment to that effect at the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 to 13 not moved.]
Clause 3 [Annual report of Commissioner]:
Earl Howe Earl Howe moved Amendment No. 14:
Page 2, line 46, leave out paragraphs (a) and (b) and insert "he must—

(a) lay a copy before each House of Parliament;

(b) simultaneously send a copy to the Secretary of State."

The noble Earl said: My Lords, in moving Amendment No. 14, I wish to speak also to Amendment No. 15.
I return to a matter that we debated in Committee relating to the annual report of the commissioner. At present, Clause 3 requires the commissioner to send a copy of the annual report to the Secretary of State, who must lay a copy before each House of Parliament. Only once that has been done is the commissioner allowed to publish his report.
The obvious thought that occurs here is that the clause as drafted would enable a government Minister to delay publication of the annual report—not, I am sure, any Minister in the current Government because we have had firm assurances that that would not happen. However, of course, Ministers cannot bind their successors. I believe that the sensible way forward is to proceed as my amendment proposes, which is to transpose the duty to lay the report before Parliament on to the commissioner and require him simultaneously to send a copy to the Secretary of State.
There would be more than a degree of symbolism in this arrangement because it would be yet another way—perhaps a subtle way—of underlining to the world at large that the commissioner is independent. Like the noble Baroness, Lady Walmsley, I had the pleasure of meeting yesterday a group of very bright young people who came to present their views on this Bill to a number of Members of the House. We spent some time talking about the commissioner and his role. One of the things they stressed most of all was how important it was for the commissioner to be independent of government, and be seen to be so. To tell those young people that the commissioner will not be able to publish his report until the Secretary of State says he can would serve only to confirm their worst fears.
It is worth our remembering that the parliamentary and health service ombudsman, for example, can make annual and other reports direct to Parliament, and that is one important marker of the independence that the parliamentary commissioner enjoys. So as regards this amendment, I think that we can go further than saying it would be no skin off the Government's nose if it were accepted. We can also say that it would convey a pretty loud message about the public standing of the Children's Commissioner and the autonomy that he has. I hope that the Minister will feel able to think again about it. I beg to move.
Lord Campbell of Alloway: My Lords, I support this amendment. It again clarifies the problem of what lies within the remit of the commissioner and what lies within the remit of the Secretary of State. This amendment has got it right in principle again. I ask only for consideration to be given.
Baroness Walmsley: My Lords, I support the amendment. The Minister's reassurances in Committee were very welcome but those verbal reassurances are no substitute for a legally robust appearance of this power on the face of the Bill. I point out that this is already enjoyed by the other UK commissioners. A theme is emerging in our debate today.
Baroness Howe of Idlicote: My Lords, I, too, support the amendment. It reaffirms the independence of the commissioner. As we heard from the noble Baroness, Lady Walmsley, it would place the English commissioner on an equal basis with those in other parts of the UK. I hope that it can be accepted.
Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for raising this issue again. As has been indicated, we debated this in Committee. At that time my noble friend Lady Andrews gave assurances that the procedure for laying the annual report before Parliament was not an attempt to limit the commissioner's independence, or an opportunity for the Secretary of State to alter the report. I have made that clear in many of our conversations, and my noble friend made it clear. The Secretary of State would not be able to alter the report in any way. The proposal is a normal procedure for laying reports before Parliament and is a practice followed by other organisations that are required to produce a formal public record of their work and findings, such as Ofsted.
In Committee, however, we noted concerns that the wording of Clause 3 might be seen as an opportunity for the Secretary of State to—dare I say it?—sit on the report, and perhaps lay it before Parliament after some delay. We do not anticipate such an attempt to delay a report, but we do not think it unreasonable to put some criteria on the timing of publication. Indeed, we have proposed in the context of the commissioner's new inquiry power that he should publish his report as soon as possible after completing an inquiry.
926
My noble friend Lady Andrews indicated to Committee Members at the time that we would return with wording to that effect on Report. I reassure the House that we continue to think about the issue. My briefing reads,
"ask them to bear with us",
so I ask noble Lords to bear with us a little longer. Inevitably, what seems very straightforward is slightly more complicated for the annual report, which, as the House may appreciate, raises a wide range of issues that the Secretary of State may wish to draw to the attention of colleagues across government so that they are aware as publication draws near.
If noble Lords are willing to bear with us a little longer, I shall address that issue properly. I hope to do so at the next stage but, if all else fails, I shall commit then that it will be dealt with in another place. On the basis of that continuing assurance, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Howe: My Lords, of course I am willing to accept the noble Baroness's assurance, for which I thank her. It is not the alteration of the report about which I am concerned, but rather the possibility of delay in its publication. However, I await with interest the further news that she may bring us, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 16:
After Clause 3, insert the following new clause—
"INQUIRIES INITIATED BY COMMISSIONER
(1) Where the Children's Commissioner considers that the case of an individual child raises issues of public policy of relevance to other children, he may hold an inquiry into that case for the purpose of investigating and making recommendations about those issues.
(2) The Children's Commissioner may only conduct an inquiry under this section if he is satisfied that the inquiry would not duplicate work that is the function of another person (having consulted such persons as he considers appropriate).
(3) Before holding an inquiry under this section the Children's Commissioner must consult the Secretary of State.
(4) The Children's Commissioner may, if he thinks fit, hold an inquiry under this section, or any part of it, in private.
(5) As soon as possible after completing an inquiry under this section the Children's Commissioner must—

(a) publish a report containing his recommendations; and

(b) send a copy to the Secretary of State.

(6) The report need not identify any individual child if the Commissioner considers that it would be undesirable for the identity of the child to be made public.
(7) Subsections (2) and (3) of section 250 of the Local Government Act 1972 (c. 70) apply for the purposes of an inquiry held under this section in England and Wales as they apply for the purposes of a local inquiry under that section with the substitution for references to the person appointed to hold the inquiry of references to the Children's Commissioner.
(8) Subsections (3) to (5) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) apply for the purposes of an inquiry held under this section in Scotland as they apply for the purposes of a local inquiry under that section with the substitution for references to the person appointed to hold the inquiry of references to the Children's Commissioner.
(9) Paragraphs 2 to 5 of Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)) apply for the purposes of an inquiry held under this section in Northern Ireland as they apply for the purposes of a local inquiry under that Order with the substitution for references to the person appointed to hold the inquiry of references to the Children's Commissioner."
The noble Baroness said: My Lords, we now come to an important part of our deliberations on the Children's Commissioner, which I hope that noble Lords will enjoy. In Committee, we spent quite a lot of our time debating the whole question of the power to initiate and hold inquiries, and of at whose discretion they should be held. It is fair to say that there was a strong feeling that that was a key indicator of whether the commissioner was truly independent in the eyes of the Government. As noble Lords know, we have been concerned that the commissioner's role should be strategic, achievable, and focused on improving the operation of systems rather than delving down into individual cases.
I have reflected on the points raised in Committee. We have always seen the commissioner as independent as well as strategic, and we want to be sure that that is how others will also see him. I am therefore very happy to move Amendment No. 16, which gives the commissioner the power to initiate and hold inquiries in a way that strengthens his strategic role. It is grouped with Amendment No. 29, a consequential amendment which I shall go on to explain.
I am grateful for the very constructive debates in Committee. The comments made in those debates have helped us to shape this new power, which I hope strikes the right balance between granting the independence to inquire into issues raised for the system by key cases, and avoiding the risk of the commissioner being swamped by casework.
The amendment will permit the commissioner to hold an inquiry into a specific case if he considers that it has wider public policy implications. We set out the criteria that we think are important for him to satisfy: namely, looking at cases which raise issues of public policy relevant to other children, investigating those policy issues using what he may learn from the individual case, and making recommendations on policy and practice. We are talking about investigating cases with wider significance, so the commissioner is not in any way an inspector or a regulator, looking into standards in school X or children's home Y to take action against those establishments.
As noble Lords would expect, we have also considered duplication. We want the new role to ensure the proper working of the system already in place, to support and protect children's interests and promote their well-being, not to cause confusion between the commissioner's work and that of other bodies. Proposed new subsection (2) prevents the commissioner conducting an inquiry where he would
928
be duplicating the work of another body. In practice, therefore, the commissioner would consult other bodies that could be undertaking an inquiry, and that subsection places a duty on him to do so as he thinks appropriate.
The commissioner would thus be able to take on board the views of those bodies about the merit of potential inquiry. We are thinking of the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection. We hope that the consultation before starting an inquiry will be part of regular co-operation between the commissioner and other investigatory bodies. The commissioner's work can therefore complement that of the other bodies, and the consultation process can foster that co-operation.
I shall highlight one other circumstance in which it might not be appropriate for the commissioner to hold an inquiry, which is cases where legal proceedings are planned or under way, arising from the case into which the commissioner wishes to carry out an inquiry. We will expect the commissioner to make a judgment on whether it would be appropriate to proceed with an inquiry into such a case. He will not want his inquiry to prejudice those proceedings, which of course will be protected by the law of contempt. After legal proceedings, the commissioner may well look into the same case. As before, his purpose will be to improve policy and practice, not to review the role of the courts.
Proposed new subsection (3) requires the commissioner to consult the Secretary of State. I absolutely stress that that is not so that the Secretary of State can exercise a veto—although, if the Secretary of State had concerns that the commissioner was at risk of contravening proposed new subsections (1) and (2), he would make the commissioner aware of that. More typically, the Secretary of State might be aware of, or indeed planning, a broader inquiry that would take in the same case, or might suggest another case not known to the commissioner that could help to clarify the same issues. There could even be issues of public interest. A Secretary of State should be able to bring such issues to the commissioner's attention. However, the final decision lies with the commissioner, who is independent and free to act, but will make decisions in the context of the available information.
When the commissioner has been appointed, we hope to be able to work with him on some guidelines for that process, because he will be consulting across government and may consult various Secretaries of State. The term would refer to the Secretary of State whose department had primary responsibility for the issues to be considered. That might include making sure that the commissioner could indicate in the guidelines how quickly a response from the Secretary of State should be expected, as well as issues of information. We want to draw up such guidelines with the commissioner, but I stress that that is not in any way to limit his independence. Rather it is to ensure that the system works.
Most other parts of the proposed new clause echo the provisions of Clause 4. The main difference is that the inquiry is the commissioner's own, so he makes the decision about whether to disclose a child's identity,

929
and he publishes the report. Amendment No. 29 is consequential. Clause 5 already prohibits the exercise of the commissioner's powers under Clauses 2 and 4 in relation to devolved matters in Wales, Scotland and Northern Ireland. The same should logically apply to the new power. That amendment serves that purpose. I beg to move.
Baroness Walmsley Baroness Walmsley moved, as an amendment to Amendment No. 16, Amendment No. 17:
Line 24, leave out "and Wales"
The noble Baroness said: My Lords, we on these Benches, and I think those on other Benches too, very much welcome Amendment No. 16, which gives the new commissioner the power to inquire into individual cases under certain very carefully prescribed circumstances. Those of us who have fought for the complete ban on such inquiries to be removed from the Bill always felt that the power must be so prescribed and hedged around with sensible precautions, so that the commissioner was not bogged down with such cases. That was never the intention of any of us.
Having said that, I must mention that the reference to Wales in proposed new subsection (7), which is the subject of Amendment No. 17, and the proposed new subsections (8) and (9), which are the subject of Amendment No. 18, allow the commissioner to initiate formal inquiries into non-devolved matters in Wales, Scotland and Northern Ireland. It is the strong view of the commissioner campaign group, and of all three existing commissioners, that the Bill should create a commissioner for England with no UK-wide powers. Other amendments tabled with cross-party support in this House will pursue that.
Meanwhile, these two amendments seek to remove the references to Wales and delete subsections (8) and (9)—about Scotland and Northern Ireland—of the new clause. That is consistent with a raft of amendments tabled by various noble Lords with Welsh interests in particular. I hope that they will meet with a fair wind from the Government. I beg to move.
3 p.m.
Lord Campbell of Alloway: My Lords, I wholly support Amendments Nos. 16 and 29. They are consistent with Amendment No. 19, which I propose to move in due course.
Lord Lester of Herne Hill: My Lords, I, too, welcome the two government amendments and I shall briefly spell out some of the reasons why I think that they are well designed and fit for their purpose.
First, I like the fact that in subsection (1) the strategic approach is maintained—that the commissioner may consider the case of an individual child, but that in doing so the commissioner will be concerned with,
"issues of public policy of relevance to other children".
That is absolutely the correct approach.
Secondly, I am glad that in the second subsection there is a provision against wasteful duplication. Again, that is important because if other public bodies
930
are able to perform those functions, they should. Thirdly, it is most welcome that the ministerial veto has been abandoned in Clause 3. There is consultation but no override. Fourthly, I am happy with the other provisions in subsections (4), (5) and (6). I should like clarification regarding one point. Subsection (6) states:
"The report need not identify any individual child if the Commissioner considers that it would be undesirable for the identity of the child to be made public".
I assume, but just need confirmation, that the commissioner, as a public authority, must act in a way that respects personal privacy—that is guaranteed by Article 8 of the European Convention on Human Rights—and, therefore, the standards to be applied under that would provide some safeguards in the exercising of the commissioner's discretion.
The provisions in subsection (7)—what I call subpoena powers—and subsections (8) and (9) are also well constructed because, as I understand it, one is building on powers in local government legislation that ensure proper control against any abuse of the power to obtain information by compulsion. At one stage I was worried that in the earlier amendment dealing with the earlier clause too much power was being given to the commissioner to obtain information, but I am satisfied that that is not the case, because that deals only with public authorities and the flow of necessary information. For those reasons, these amendments are well constructed.
Lord Thomas of Gresford: My Lords, I support my noble friend Lady Walmsley in Amendments Nos. 17 and 18. We have already taken a decision today that the Children's Commissioner should have,
"the function of promoting and safeguarding the rights and interests of children in England",
and we have deleted the reference to the United Kingdom. Therefore, it would be anomalous and wrong that, in this clause, the Children's Commissioner should have the power to hold inquiries in Wales. Scotland and Northern Ireland. Accordingly, those provisions should be deleted from the Bill; otherwise that inconsistency will remain—certainly up to Third Reading.
Why should the English commissioner, as he now is, hold inquiries in Wales, Scotland and Northern Ireland anyway? It is interesting that it was a public inquiry in Wales, dealing specifically with Welsh matters—namely, the Waterhouse inquiry—that sparked the desire in Wales to have a children's commissioner. That is why Wales took the first step in the UK to have a children's commissioner. We are perfectly capable in Wales of holding an inquiry of this nature, as the Waterhouse inquiry demonstrated, and we would resent in Wales having the English commissioner come in to hold inquiries at all.
Lord Laming: My Lords, I support Amendments Nos. 16 and 29. As noble Lords will know, I am greatly concerned about the role of the commissioner being further and further extended, but the wording of Amendment No. 16 is pitched extremely wisely in terms of raising issues of general relevance and

931
ensuring the avoidance of duplication. Regarding the Waterhouse report, although the facilities were in Wales, most of the children came from England.
Baroness Finlay of Llandaff: My Lords, I wish to point out that Amendments Nos. 17 and 18 create compatibility with amendments that I have tabled for debate later. Therefore, I would wish the House to consider carefully this group of amendments and for the Minister to consider the amendment to the amendments, because we would then have clear lines of answerability and a clear understanding of how this matter is to operate in each area of the United Kingdom in the interests, and for the benefit, of children.
Lord Campbell of Alloway: My Lords, I wish only to comment that Clause 2 should to some degree meet the concerns of the noble Baroness, Lady Howarth, because it puts a measure of safeguard on the inquiry.
Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for their contributions to this debate. I am pleased to note that this new inquiry power has been recognised as significant and positive in the development of the commissioner's role. I am grateful to all noble Lords who have taken the time to discuss this with me and to recognise this important step. It is about ensuring an effective champion in a job that can be done and a person who people perceive to be strong and independent.
I turn to Amendments Nos. 17 and 18 and the new inquiry power to which they relate. They would take from the commissioner the legal powers that he would have to hold an effective inquiry in Wales, Scotland or Northern Ireland. He could still hold an inquiry, but would not have the power to take evidence or summon witnesses. Because of the consequential Amendment No. 29, the commissioner could not hold an inquiry into a devolved matter in those nations. In practice that would prevent him doing so on a non-devolved matter.
At present the other commissioners could not hold an inquiry or formal investigation into a case relating to a non-devolved matter. So this amendment would mean that there was no commissioner able to do so. I am sure that that is not what is intended, but it is important to understand the position that would be created. Later, we are to debate Amendments Nos. 26 and 27 about the commissioner's relationship with Wales, Scotland and Northern Ireland. I am always tempted to pre-empt my own future debates. In fact this would pre-empt the future comments of my noble friend Lady Andrews and I would not wish to do that.
Baroness Andrews: My Lords, no.
Baroness Ashton of Upholland: My Lords, my noble friend says no. I hope that noble Lords will feel that at the end of that debate they will see the process that is under way about the links between the four commissioners. I hope that the noble Baroness will withdraw her amendment at this time. It is important,
932
as we continue to debate and work for the best way that the commissioners could work together, that we do not put children in a position of not having any commissioner taking responsibility for such issues. On the basis that there is much more to say about relationships and that there are other stages of the Bill at which we can discuss them further, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Walmsley: My Lords, I thank the Minister for her reassurance that we will hear more about the Government's attitude to the devolved commissioners. In the mean time, it would be sensible and appropriate for me to withdraw Amendment No. 17. I beg leave to withdraw the amendment.
Amendment No. 17, as an amendment to Amendment No. 16, by leave, withdrawn.
[Amendment No. 18, as an amendment to Amendment No. 16, not moved.]
The Earl of Northesk The Earl of Northesk moved Amendment No. 19:
After Clause 3, insert the following new clause—
"SPECIFIC FUNCTIONS OF THE COMMISSIONER
(1) The Children's Commissioner has, subject to the following provisions of this Part, the following specific functions in respect of the sharing of information—

(a) to draw up and disseminate to the persons and bodies to whom section 8 applies guidance as to the sharing of information between and amongst themselves;

(b) to draw up and disseminate to the persons and bodies to whom section 8 applies guidance as to the circumstances in which it is appropriate for those persons and bodies to share information between and amongst themselves;

(c) to maintain under review the guidance drawn up under paragraphs (a) and (b).

(2) In drawing up the guidance set out at subsection (1)(a) and (b), and in reviewing such guidance under subsection (1)(c), the Children's Commissioner shall consult with—

(a) the Secretary of State;

(b) the Information Commissioner;

(c) 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) shall in particular make provision—

(a) as to the nature of the information that, in the circumstances of the case, must or may be shared;

(b) as to procedures designed to ensure the accuracy and security of information shared;

(c) as to procedures designed to ensure, where appropriate, the co-ordination of the sharing of information between and amongst relevant agencies and persons;

(d) 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;

(e) as to procedures designed to guarantee, as appropriate, the rights of data subjects in respect of any information about them that may be shared;

(f) 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;

933

(g) as to procedures designed to impose penalties for the misuses of shared information and for the holding or disclosure of information contrary to the requirements of the guidance.

(4) The Secretary of State shall by regulations subject to affirmative resolution of each House of Parliament provide for the guidance referred to in subsection (1)."
The noble Earl said: My Lords, first, I echo other noble Lords in expressing my considerable gratitude to the Minister, not only for keeping us informed via correspondence, but for arranging Tuesday's presentation of information-sharing Trailblazers. The event was extremely helpful in clarifying and crystallising my thinking and, I am sure, that of other noble Lords.
The Minister will recall that the noble Lord, Lord Laming, and I asked the practitioners present what would be the most important and helpful provision that they would like to see in the Bill. I do not think that I misrepresent them if I say that they cited as their top priority consolidated and concise statutory guidance on the protocols that should apply in respect of information sharing between and among agencies involved in child welfare. That is precisely what the amendment is intended to give them.
I shall not try the patience of your Lordships by rehearsing my arguments from Committee. Nevertheless, it is worth repeating the logic that has inspired the amendment. Put simply, it is the recognition of two related but quite distinct problems. On the one hand is the practical and/or technological issue of what provision should be made for systems, be they IT-based or not, that will facilitate information sharing. Clause 8 is the Government's chosen method of addressing that. On the other is the cultural issue of how to establish and inspire the sharing of information; that is, practitioners actually talking and communicating with each other on an inter-agency and intra-agency basis. As I said in Committee, the Bill is strangely silent on that, despite the fact that, to my judgment, the sense of it permeates a great deal of the report of the noble Lord, Lord Laming, on the tragedy of Victoria Climbié.
I hope it is a fair reflection to say that the Minister was receptive to the principles underpinning the amendment in Committee, as indeed was the noble Lord, Lord Laming. I should also admit that the Government are well seized of the need for cogent advice on information sharing. The Minister put it thus:
"We are clear that guidance to practitioners under Clauses 6 and 7 needs to provide more clarity about the circumstances under which information may be shared to promote children's welfare, safety and well-being".—[Official Report, 6/5/04; cols. 1304–05.]
Against that background, I hope that it is not too presumptuous of me to suggest that my purpose is, if I can put it this way, supported by the Government, by independent experts and by practitioners in the field.
For avoidance of doubt, the original amendment provoked some points of concern; namely, the danger of implicating the Children's Commissioner in line accountability and whether, in effect, the guidance on information sharing should be statutory. Your Lordships
934
can rest assured that in drafting the amendment, for which I express my debt to Liberty and to my noble friend Lord Campbell for their considerable help and assistance, I thought long and hard about its structure. The nub of the problem, on which we have already touched today in the context of earlier amendments, notably Amendments Nos. 4 and 14, is whether the Children's Commissioner or the Secretary of State should be responsible for the preparation of the guidance. In the event, I settled on the former.
As the Minister has observed,
"the focus of the commissioner is on children—listening to children, representing children and hearing their views. His power comes from them and his focus must be on them".—[Official Report, 6/5/04: col. 1305.]
By extension, it is crucial that the commissioner be actively involved in preparing the required guidance in that sensitive area, if only to guarantee that it is properly child-focused. In truth, while respecting the anxiety that has been expressed, I am uncertain whether the amendment would create that line accountability problem. Certainly, that was not my intention. The commissioner will be responsible for preparation of the guidance with appropriate consultation, but responsibility for its issuance vests in the Secretary of State in the form of regulations subject to affirmative resolution. As it were, ownership of the processes of information sharing will rest with the commissioner, while effective responsibility for their enforcement will be derived from the Secretary of State's delivery of them in the form of regulation.
I turn to the question of whether the guidance should be statutory. The Minister implied in Committee that the Government favoured a non-statutory form, and I hold the opposite view. When we are dealing with an issue that impinges so seriously on individual rights, it is only right and proper that the guidance should be delivered in the form of regulation subject to affirmative scrutiny. That is not a matter of mere administrative detail; rather, it is one that has far-reaching implications for the rights of all our children, and it should be subject to proper parliamentary scrutiny.
It is probably as well to add here that it was my impression on Tuesday that the practitioners who expressed their heart-felt wish for consolidated guidance favoured it appearing in statutory form. I do not know what kind of response the Minister is bringing to the Dispatch Box today. It may well be that we must beg to differ on this point. Be that as it may, so far as I can see, this single issue is standing in the way of the noble Baroness accepting the amendment.
I conclude with this thought: the noble Lord, Lord Laming, has said that improvements to the way in which information is exchanged within and between agencies are imperative if children are to be adequately safeguarded. That provokes in me a simple question: where on the face of the Bill are those improvements to be found? Notwithstanding the thrust of Clauses 8 and 23, I cannot see them. This amendment is intended to plug that gap. I beg to move.
3.15 p.m.
Earl Howe: My Lords, I have considerable sympathy with the amendment, even though my noble friend is as usual ahead of me, having thought through a persuasive line of argument before it had occurred to me. As I said in Committee, I have a number of hesitations about the creation of databases, both on grounds of cost benefit and the civil liberties implications. We will come to those later.
However, as my noble friend said, what matters is that information is shared between the right people at the right time and in the right amounts. That was one of the main issues identified by the noble Lord, Lord Laming, in the Climbié case. Therefore, I am drawn to my noble friend's argument that primarily the issue is about information sharing. I can also see the logic of saying that there should be guidance and that we should entrust the formulation of such guidance to the commissioner. That is subject to appropriate consultation and the affirmative procedure, assuming that that arrangement is technically possible. I am sure that the Minister will tell us.
Those safeguards would appear to meet the obvious objection that might otherwise have been voiced that we would be placing too much reliance on the commissioner with too little parliamentary scrutiny. I shall therefore be most interested to hear what the Minister has to say in reply.
Lord Laming: My Lords, I am full of admiration for the thought that the noble Earl, Lord Northesk, has given to this important matter. The recent meeting we attended with Trailblazers was most helpful. It demonstrated not only what can be done, but what needs to be done and how the law needs to facilitate that.
My concern about the amendment was touched upon by the noble Earl. In the Bill, we attach a great deal of importance to the independence of the Children's Commissioner. He will be independent from government, independent from service providers and solely preoccupied with the interests of children. He will be able to comment on and evaluate any matter that affects children and their well-being, in the greatest sense of the phrase, and to criticise, where he takes the view that the current arrangements are not adequate.
It is therefore most important that the commissioner is not involved in anything connected with managerial accountability and service delivery. The management and exchange of data between organisations seems to be central to effective managerial responsibility, and a line of accountability must be clearly established. The commissioner's position would be weakened and compromised if he were associated with the guidance given to services and that guidance in due course proved to be inadequate. I hope that we will have the opportunity to reflect again on this matter.
Lord Campbell of Alloway: My Lords, I shall try to be brief, but it is not so easy to do justice briefly to the contribution of my noble friend Lord Howe, which was short but important, and that of the noble Lord,
936
Lord Laming. There is no doubt that in the light of those contributions, and the one that we hope to receive from the Minister, the provisions will have to be rethought and the structure—or at least the presentation—of the Bill will have to be reviewed.
Of course, I am the sort of dogsbody who takes responsibility for the drafting of the amendment, but I am not a draftsman, as all your Lordships know. The amendment essentially represents an inquiry into how we are to get an effective regime in the Bill and have an effective means of enforcement. We must face up to the situation. The only way in which we can achieve that is by getting Parliament to say what the rules are, putting it in plain English, leaving the judiciary to enforce the rules and keeping the executive right out of it. Apart from the remit of the executive that we have been discussing, which is in another mode, the executive have shown themselves totally incapable of dealing with what is a very serious problem. Ever since the report of the noble Lord, Lord Laming, we are still saddled in substance with the same rotten regime. We must face up to that.
The Government have given certain guidance about sharing, and it is proposed in the Bill that there should be key agencies. There always have been something like key agencies; it does not matter what one calls them, but they are set up by the local authorities, and there are now many more of them—I believe, about 150. The health authorities are now much larger and fewer—I believe, about 30. The frontline health services are provided by some 300 primary care trusts. But there is a vast and wholly unacceptable variation in the co-ordination, provision and equality of the services offered to our vulnerable children.
The noble Lord, Lord Laming, rightly criticised the existing practices on sharing information and what he called the widespread organisational malaise. That situation grew and festered under a ministerial executive administration. That is one of the main reasons why I assert and seek to persuade your Lordships—not today, but perhaps on another occasion—that the only way in which to do the right thing by our children is to leave it to Parliament to set out the rules and the judiciary to enforce them.
I take the point made by the noble Lord, Lord Laming. Although I suppose that my drafting could lead to anything, it was not intended in any way to apply to the commissioner. It is intended to apply to the agencies which are obliged to follow procedures, and those procedures are intended to be laid down. I cannot for the life of me see what the object is in having a sort of intermediate administration in the local safeguarding children boards. On that I seek help, because it seems to me that there is tier upon tier and there is no enforceability. We are running back into the old ministerial quagmire and we are getting nowhere. I am totally opposed to that. Of course, I do get things terribly wrong at times, but I cannot see why that is so, and I invite an explanation why we must have tier upon tier of administration.
I must not take too long today, but I suggest that the only effective control is to be afforded in the Bill, in primary legislation. The amendment allows and

937
provides subsidiary legislation in the form of regulations, which are all under the control of Parliament, using the affirmative resolution procedure. Parliament controls the rules while the judiciary enforces them.
Perhaps one cannot get anything right first time—but, with your Lordships' help, perhaps we may consider these matters on another occasion.
Baroness Howarth of Breckland: My Lords, I was going to be brief but I am not sure whether I have understood some of the points made by the noble Lord, Lord Campbell, so I may ask him for clarification—but on a future date, not necessarily today.
I am always in awe of the grasp shown by the noble Earl, Lord Northesk, of these issues and the way in which he thinks them through. However, I challenge his thought that the commissioner would undertake the task suggested. I support my noble friend Lord Laming in saying that, yet again, by extending the commissioner's role into such an area we would impair his independence. My noble friend Lord Laming and I have come to those conclusions totally independently, and I am grateful that I find myself alongside him.
I am not going to discuss the database, or some of the points that were made about it, but it is crucially important that when we come to that debate we need to be clear that any regulation comes from central government. However, I fear that those regulations will be interpreted not between Parliament and the judiciary but on the ground, by those people carrying out the task, as was well demonstrated by the trailblazers' pilots. I am grateful to the Minister—as are other noble Lords—for organising that, as it clarified a wide number of issues. We may have other questions, but many issues were clarified.
Once local authorities have put the work in place, it needs to be inspected. I presume that it would be inspected, as with the rest of the work of the local authority, through the national Commission for Social Care Inspection. There would be an air of monitoring, therefore, because that body considers how all regulations are in place in relation to all services. If the commissioner undertook that task, again, that would lead to duplication. In order to carry out the task, yet another team would be required under the commissioner. I should have thought that, considering the Benches on which the noble Lords sit, they would be particularly keen to see efficiency rather than that kind of duplication.
I shall want to return to some of the issues relating to the database. However, at present, I am simply saying that I do not believe that it is a job for the commissioner. We need absolute clarity about where the job lies and how the practitioners will carry it forward.
3.30 p.m.
Baroness Ashton of Upholland: My Lords, I am very grateful for all the comments that have been made about the trailblazer presentation. I, too, found it extremely valuable, having not had the privilege of seeing at least one before. I am also very grateful to
938
noble Lords for giving up their time—I know that their time is very precious. It was an interesting and useful occasion and it certainly enhanced my thinking, as I am sure it did that of other noble Lords.
I say in particular to the noble Lord, Lord Campbell of Alloway, that we are in something of a chicken-and-egg situation in relation to our discussion on this amendment. Although this issue falls within this part of the Bill, we shall also want to discuss it when we reach another part of the Bill. It is very much linked to the deliberations that we shall have later—to suit the needs of noble Lords, I hasten to add—about the whole question of information sharing.
I agree wholeheartedly with what the noble Baroness, Lady Howarth, has just said. It is a question of who is interpreting the guidance, and, as the noble Earl, Lord Northesk, rightly said, it includes the critical nature of bringing together the kind of guidance which is already available but which is perhaps misunderstood by different agencies in working out what they can do, when they can do it and how. One objective behind the Bill has been to address that point. The noble Earl will know that other issues were also raised by the trailblazer pilots.
I shall resist the temptation to talk more about Clause 8 and shall confine myself to the issues before us in this amendment. As the noble Lord, Lord Laming, and the noble Baroness, Lady Howarth, in particular said, the fundamental issue is the role of the commissioner and whether this is an appropriate role for him. Again, from my perspective, one objective of the Bill is to ensure that the commissioner does not take on roles which are either inappropriate or time-consuming and which detract from the fundamental wish, shared by all noble Lords, that the commissioner's work should relate to children and not to adults, machines or anything else. I fear that this falls into that category. Therefore, I hope that noble Lords will not press the amendment on the grounds that such a role would not be appropriate for the commissioner in terms of the time that it would take and the work that would be involved.
The second, and perhaps more fundamental, reason why I think that it is not a role for the commissioner is that this is about issuing statutory guidance under Clause 6 to organisations and bodies which will be as wide-ranging as noble Lords have indicated. They include the police and local government and so on. I do not think that it is appropriate to appoint an independent commissioner, as we have now reached the conclusion we wish to do, and then to say to him, "You will now instruct the police on issues of information sharing". Taking that as an example, I do not believe that that is appropriate.
I have said previously in your Lordships' House that it is important not to let government off the hook in terms of our responsibilities and accountability. It is right that statutory guidance should be given by government and that we should be held to account for that guidance in your Lordships' House, in another place and by the electorate.
Therefore, I feel very strongly that there is a real difference of opinion between the Government and the noble Lords who tabled the amendment. I completely

939
support the notion that guidance is critical. It will be very important in our deliberations on information sharing to be clear about the form that the guidance should take. It is important to consider the guidance that is already available and to ensure that people understand what they are and are not allowed to do. We should not necessarily issue new guidance but, as the noble Earl said, we should bring the guidance together.
I accept that it is important to ensure that the guidance carries weight, is well understood and well used. Where I disagree with noble Lords is that that function should rest with an independent commissioner whose role is to have regard to the interests of children.
Finally, we also expect the commissioner to develop expertise and knowledge and to have experience. There would be nothing to stop the commissioner making his views known about information sharing or about the way in which government carry that out if he felt that that was appropriate within his remit of taking into account what is in the best interests of children. There would be nothing to stop the commissioner being involved with that. I submit to your Lordships that that is for the commissioner to determine and that we should put government in the driving seat so that they take responsibility for guidance of this nature. On that basis, I hope that the noble Earl will feel able to withdraw the amendment.
The Earl of Northesk: My Lords, I thank the Minister for her response and I thank all noble Lords who have spoken. I shall, of course, reflect very carefully on what has been said. At present, I believe that it is enough for me to say that I remain convinced that it is necessary to place statutory guidance on information sharing in the Bill. But the conundrum with which we are wrestling is whence that guidance emanates—that is, who prepares it. With that in mind, I am almost certain that I shall return to this issue with, it is hoped, an improved amendment that meets the concerns of those who have spoken. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Inquiries held by Commissioner]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 20:
Page 3, line 17, leave out "in such manner as he thinks fit".
The noble Baroness said: My Lords, we debated in Committee various aspects of the reports to be produced of inquiries held under Clause 4, where the Secretary of State has directed the commissioner to hold an inquiry. We have already debated in your Lordships' House various issues concerning inquiries.
In moving Amendment No. 20, I wish to speak also to Amendments Nos. 22 and 23—all relating to Clause 4. The first, Amendment No. 20, addresses a small but important point on the publication of inquiry reports. The other two—Amendments Nos. 22 and 23—are technical and relate to inquiries in Scotland and Northern Ireland.
For the first of these—Amendment No. 20—I am grateful to the noble Lord, Lord Lucas, who is not in his place but who moved an identical amendment in
940
Committee. In the debate then, I said that we would consider the points that the noble Lord had raised and write to him, as I have done, and that we would introduce an amendment should that seem appropriate. I have reflected on the matter and believe that his amendment would achieve what we want. The wording,
"in such manner as he thinks fit",
added little to the duty on the Secretary of State, and it might have given the impression that the Secretary of State could choose to publish a report in some obscure manner in order to minimise awareness of it. That was certainly never our intention. Inquiries will be significant events, and the Secretary of State will wish to ensure that the findings and recommendations become known and that those who are the subject of recommendations respond to them.
I do not think that the words that we are seeking to remove would have allowed a Secretary of State to get away with obscuring the publication of a report. But I am happy, through this amendment, to delete the relevant phrase, and I reaffirm that we want inquiry reports to be widely known and available.
The other two amendments—Amendments Nos. 22 and 23—clarify the references in subsections (8) and (9) of Clause 4 to the relevant legislation in Scotland and Northern Ireland respectively. The original wording had indicated the statutory provisions under which an inquiry might be held in Scotland or Northern Ireland. The amendments add that they would apply to such an inquiry as they would to a local inquiry. This is not a substantial change, but it makes the wording more accurate. I beg to move.
Lord Lester of Herne Hill: My Lords, the great cartoonist, Bateman, used to do wonderful cartoons. One, for example, was about the barrister who admitted that his defendant had no defence, and so on. This amendment reminds me of the Minister who withdrew unnecessary powers voluntarily. It is a very good thing indeed that glasnost has broken out in the corridors of power, and I congratulate the Minister and her colleagues on having won that argument.
Earl Howe: My Lords, I thank the Minister for responding to the concerns expressed by my noble friend Lord Lucas in Committee and for moving Amendment No. 20. It is, indeed, most welcome. The amendment in my name in this group—Amendment No. 21–was also proposed in Committee by my noble friend Lord Lucas. Clause 4(5) enables the Secretary of State to censor a report of the commissioner where such a report identifies an individual child. The intention of this provision is clearly to ensure that the identity of the child is not made public where that would be detrimental to the child's interests or undesirable in some other way.
As was said in Committee, I have considerable doubts about whether it is right for the Secretary of State to take this decision rather than some other person. The obvious person in my view is the commissioner, but that is a separate issue. If the Secretary of State is the person who is empowered to take this decision, he should not be able to

941
change the report in ways that go beyond what is necessary to protect the child's identity. In Committee the Minister said that is what subsection (5) implies and that it was not the Government's intention that the Secretary of State should alter or amend any of the commissioner's reports except to protect the child's identity where that was seen to be necessary. Of course, I accept her assurance that that is the Government's intention.
I am not fully comfortable with the argument about the drafting. To someone of benign character, like the Minister, her interpretation is certainly possible. To someone less benign like me, it is more than possible to read the subsection in a way that says that where a report identifies an individual child and it is thought undesirable for his identity to be made public, the Secretary of State may amend the report in any way he chooses. I should like the Minister's reassurance, once again, that that interpretation of the subsection is legally impossible. If it is not, I would invite her to take the matter away and consider it further.
Baroness Ashton of Upholland: My Lords, I cannot think of anyone more benign than the noble Earl, Lord Howe, but I like the idea that he thinks I am benign. That is very reassuring.
I am grateful for what noble Lords have said about the government amendment. The noble Earl clearly set out what he seeks to do in this particular case, and I shall not repeat it. I shall simply say that I shall take it away and consider what we might do perhaps to address this more fully. The noble Earl is right. We are clear about what it means but the point is made and I shall take it away.
On Question, amendment agreed to.
[Amendment No. 21 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 22 and 23:
Page 3, line 32. after "Scotland" insert "as they apply for the purposes of a local inquiry under that section"
Page 3, line 37, after "Ireland" insert "as they apply for the purposes of a local inquiry under that Order"
3.45 p.m.
Baroness Howe of Idlicote Baroness Howe of Idlicote moved Amendment No. 24:
Leave out Clause 4.
The noble Baroness said: My Lords, as many noble Lords have said, government Amendment No. 16, to empower the commissioner to initiate an inquiry, is very welcome news. Certainly, it will help to establish both the independence and credibility of the commissioner. However, that significant step forward is marred by the continuing power of the Secretary of State to direct the commissioner to undertake an inquiry into the case of an individual child.
Under Clause 4 it will be the Secretary of State, not the commissioner, who determines the terms of reference of such an investigation. It will be the Secretary of State, not the commissioner, who determines when the report from
942
such an inquiry can be published. It will also be for the Secretary of State unilaterally to decide to amend or stop the publication of an inquiry report, to protect the identity of an individual child. The reason for that has been given.
None of the commissioners in other countries in the UK can be directed or controlled in that way. Surely, it is a fundamental violation of independence but I would have thought it is also unnecessary. The Secretary of State has other powers to establish judicial-style inquiries such as the Victoria Climbié inquiry or the Bichard inquiry into the Soham murders, so surely he or she does not need this additional power.
The Government may approach the Children's Commissioner to undertake an inquiry just as it can any other individual or body. New legislation is certainly not required for that. The important point is that Clause 4 requires the commissioner to be permanently at hand to undertake inquiries set by government. That still gives the Government an unacceptably high level of control over the commissioner's agenda and raises questions about whether these arrangements will be seen as a potential cost saver to this and future governments which is, I am sure, not the intention of this Minister.
In giving evidence to the Joint Committee on Human Rights on 20 April, Scotland's Children's Commissioner, Professor Kathleen Marshall, described the process by which she will determine whether or not to undertake a formal inquiry. She stressed the vital point that the commissioner should be receptive and, most of all, responsive to issues raised by children. She stated:
"There is this issue, about [children] raising things themselves, that from their point of view are going to further their protection. The other issue, about the investigation being directed by ministers, is that I would not like to have an investigation or an inquiry foisted on me. … I plan to … assess before I undertake anything what it is going to cost me in time and resources, what … I am going to have to set aside, and I want to have control over that".
Of course I also welcome the deletion of the provision allowing the Secretary of State to publish the commissioner's inquiry report in such a manner that he thinks fit, but the commissioner will still, under Clause 4, be required to hand over his or her inquiry to the Secretary of State before publication.
I turn to another of the children's commissioners, Peter Clarke, commissioner for Wales. In giving evidence to the Joint Committee on Human Rights on 20 April he explained:
"The idea that someone could interfere with whether or not this report was published seems to me completely inconsistent with my understanding of what independence means. … Transparency is another word that is very important for our sorts of offices and the publication of a report and the processes being open and transparent are critical parts of our credibility. We have also had now increasingly numbers of professionals working in organisations who are willing to share information with us in private which might well lead to the improved protection of children because they see us as being independent and trustworthy in this way. The less independent we are the less we will be able to enjoy that sort of confidence."
Mr Clarke's observations are, I think, significant because he is the longest-serving commissioner in the UK having now been in post for more than three years. I accept that Ministers have stated categorically that the Minister will be an independent champion for children

943
and I believe that is their view, but I have to admit that it is difficult to reconcile the Government's stated aims for the commissioner, and the significant progress made in recent days, with the reality of Clause 4.
I hope that the Minister can be persuaded to go one stage further and accept the amendment as proposed to delete Clause 4. I beg to move.
Lord Thomas of Gresford: My Lords, I too wish to speak in support of the amendment, to which my noble friend Lady Walmsley has added her name. The noble Baroness, Lady Howe, mentioned Mr Peter Clarke. In his evidence on 22 April last to the Welsh Affairs Committee he was asked what he thought were the significant differences between his powers, which he has exercised for some three years, and the powers proposed for the English commissioner. The very first thing that he said was:
"First, my full independence: I cannot be instructed by any minister to carry out an investigation. That is a key difference between what is being proposed in the Children Bill for a commissioner for England, with its UK parts, and my own office.
I consider that to be absolutely fundamental to the independence of the post, and I am sure it would be seen as such too by the European Network of Ombudsmen for Children. I think it is just so fundamental that I am surprised it is a model that is being put forward".
Then he was asked by Mrs Julie Morgan whether there was any other commissioner,
"in places in Europe that could be directed by a minister to carry out an inquiry?"
His reply was:
"I am having to pause. I cannot think of one. The problem I have in answering the question is that when I joined the European Network some three years ago there were 12 members and there are now 40: it is growing very rapidly, particularly in the former Soviet countries. It may just be that there is a model of that sort but I am certainly not aware of one".
So here we are with a commissioner being put in place; there are 40 commissioners who are members of the European Network of Ombudsmen for children. None of them can be told by a Minister what to do. If the Welsh commissioner cannot be told by a Minister what to do, why can the English commissioner be told by a Minister what to do?
Lord Hylton: My Lords, I support the arguments of my noble friend Lady Howe for the reasons I gave earlier; namely, that I want children in England to be just as well protected as they are in the other parts of the United Kingdom. There is also a further consideration that some children—usually those of refugees or asylum applicants—fall into the hands of the Home Office. Therefore, it is all the more desirable that the commissioner should be fully independent and not told by Ministers what he can and cannot do.
Baroness Ashton of Upholland: My Lords, as always I am very grateful to noble Lords for such a constructive debate on the issue. As the noble Baroness, Lady Howe, has made very clear, the effect of the amendment is to delete Clause 4 under which the Secretary of State can direct the Children's Commissioner.
944
I understand the question being asked, which on the one hand is about independence and on the other the appropriate relationship between the commissioner and the Secretary of State and whether it is appropriate under new Clause 2 for the Secretary of State to continue to have that power. I do not expect that this power will be used with great frequency. However, I think that it is important as there may be a case which the Secretary of State believes has key significance concerning children's lives, and on which he believes that the commissioner is uniquely placed to hold an inquiry. It may be on an individual child or on a particular set of circumstances—for example, as mentioned by noble Lords, the Waterhouse inquiry.
We envisage that such inquiries would occur only after the kind of discussion and collaboration that one would expect. As I reassured noble Lords in Committee, we do not expect the Secretary of State to burden the commissioner in any way. One of the reasons we think the provision is important is that direction is followed by resources and resources will be critical if we are to see the kind of high-profile inquiries that sadly we have had to have from time to time.
I referred earlier to the importance and therefore, in a sense, the substantial costs that accompanied the tragedy of Victoria Climbié—£3.8 million. It is important that if the Government are going to, very rarely but none the less perhaps occasionally, say, "We need to look at an issue; we do believe it is critical", it is possible for the Secretary of State to say, "I wish this to be done and I wish this to be done by the commissioner".
Baroness Walmsley: My Lords, in view of the opinions expressed by the Minister, do the Government intend to take powers for a Secretary of State to be able to direct the other UK commissioners to conduct inquiries?
Baroness Ashton of Upholland: My Lords, I have no suggestion that we would do that. Indeed, one of the issues that we will come on to when we discuss the relationship between commissioners in other parts of the UK is how best to ensure that we are able to deal with inquiries. I do not want to pre-empt that discussion because I feel I will move into territory on which we need to have a bigger debate. It is not an issue that we have not discussed and considered; it is a question of how we think it is best done.
I recognise that noble Lords will disagree with me on this issue. I am always, as noble Lords know, accommodating when I can be. However, on this issue, which we have discussed and which I have discussed with my right honourable friend, the Government are clear: we wish to retain this power. We expect it to be used, as I have indicated, rarely and to be the trigger for resources for directions. That cannot be done other than by resources following on from that.
In rare and probably exceptional circumstances, we might wish to be able to say to the commissioner that on behalf of the Government and on behalf of us all we would like him to undertake this. I appreciate the concerns raised. I trust that the relationship will be a

945
positive one. None the less, we would wish to retain the power. On that basis, I hope that the noble Baroness will withdraw the amendment.
Baroness Howarth of Breckland: My Lords, before the noble Baroness sits down, perhaps I may ask for clarification. I have some concerns that a commissioner is asked to undertake an inquiry of the size of the Climbié inquiry. My friend—and I mean without the noble in other circumstances—Lord Laming was lost to us all for over a year. Presumably, the commissioner would not carry out the inquiry personally. Even oversight of it might take him away from the work that the House has talked about wanting him to do. I ask for clarification.
Baroness Ashton of Upholland: My Lords, on the issue of inquiry there is the ability of the commissioners themselves to initiate inquiries. For example, on the Victoria Climbié inquiry it may well be that a commissioner—or indeed in the case of the tragedy of the little girl Toni-Ann Bayfield—will say, "I wish to do this". We have talked about how that would happen and the commissioner could decide to do it.
In such circumstances there would be, I suppose, a danger that the commissioner would be, as the noble Baroness described it, lost to us. That is why the commissioner will have an office and staff. The commissioner will consider how best to carry out inquiries. Indeed, we anticipate that the Secretary of State will direct the commissioner. That is not to say that there will not be dialogue, or indeed an opportunity to delegate part of the responsibility for that role.
The noble Baroness is right: the issue is about who has the responsibility for conducting the inquiry. In this case we are saying that the Secretary of State would direct the commissioner. The following dialogue may well lead them to ways of doing it, which we will leave for them to discover. None the less, there would be an overarching responsibility and overview from it. That is very important. In thinking about inquiries the Government began with our concern that indeed the commissioner could be wrapped up in inquiries. If they are of such significance, I would argue that that is time well spent.
Baroness Howe of Idlicote: My Lords, I am grateful to the Minister for her remarks, and indeed to other noble Lords who have spoken. I have to say that I remain puzzled. As I tried to point out in my comments, it is possible for the Secretary of State under existing circumstances to do just what the Government wish to write on the face of the Bill.
While for the moment I am prepared to withdraw the amendment, I think we may have to think again on the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4 p.m.
Baroness Walmsley Baroness Walmsley moved Amendment No. 25:
After Clause 4, 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 3 months of the date of the notice with—

(a) 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

(b) 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—

(a) the action taken or proposed to be taken by the body to comply with the recommendation is inadequate; or

(b) the body's reason 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.
(4) A notice under subsection (3) shall include a statement that a failure by the body—

(a) to provide what the Children's Commissioner considers to be a satisfactory response; or

(b) to provide any response within the period mentioned in that subsection,

may be published in such manner as the Children's Commissioner considers appropriate.
(5) The Children's Commissioner shall maintain a register containing details of—

(a) recommendations (together with the reasons for them) contained in reports;

(b) action taken by the Children's Commissioner under subsections (1) and (3); and

(c) the results of any such action.

(6) 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.
(7) 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 sort of response. This new clause enables the commissioner to require a response to his or her recommendation and to publicise any failures to respond. That is similar to provisions in the legislation establishing commissioners in Wales and Northern Ireland.
When the new clause was debated in Committee, the noble Baroness, Lady Ashton, responded:

947
"It is certainly not the Government's intention that the commissioner's inquiry reports should sink without trace … Reports should lead to action, as the Committee would expect, or to explanation of why the commissioner's recommendations have not been accepted or implemented".—[Official Report, 6/5/04; col. 1332.]
However, the Minister went on to suggest that it would be the Secretary of State's task to follow up recommendations in any reports of inquiries that he or she had directed the commissioner to carry out under the existing Clause 4.
The scope of this new clause goes wider than any recommendations made by the commissioner following a formal inquiry. I have welcomed the new clause proposed by the Government giving the commissioner the power to initiate formal inquiries. That is one of the matters on which the Government have listened. It is essential that the commissioner can require a person or body to whom he or she addresses recommendations to respond and can publicise any failures to respond.
Of course I accept that constitutionally it would be wrong for an unelected body such as a commissioner to be able to enforce a recommendation, but what is proposed in this new clause is a necessary and reasonable way of ensuring that the commissioner's recommendations are taken very seriously. Similar provisions exist in legislation establishing the Wales and Northern Ireland commissioners. It works very well and gives commissioners in those countries the teeth that they need. We want a similar set of dentures for the English commissioner. I beg to move.
Baroness Byford: My Lords, the amendment has our names attached to it. It is hugely important that follow-up work is done as a result of whatever finding the commissioner might make. As the noble Baroness, Lady Walmsley, has said, it seems ironic that Northern Ireland, Wales and Scotland can do it whereas we cannot.
The noble Baroness, Lady David, who is not in her place at the moment, spoke very keenly in Committee. She said that further action following a report was essential. I tried to make that proposal in my opening remarks on that amendment at that time.
The Disability Rights Commission strongly supports the aims of the amendment to give the commissioner essential powers also. I cannot add much more to what the noble Baroness, Lady Walmsley, said, except perhaps to point out that the amendment is strongly recommended by outside groups ranging from Barnardo's and Childline to Save the Children UK and UNICEF. I have done great disservice to all those groups that come in between, but I fear that we will not progress with this Bill, if every time we have an amendment we support it so strongly that we keep repeating the same remarks. In case the Minister has not been briefed in this regard, we have had a lot of support for the amendment.
Baroness Ashton of Upholland: My Lords, I am very grateful to noble Lords for speaking to the amendment, and for the very helpful way in which it was introduced. I appreciate that it is important to
948
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. We expect that, when a commissioner makes recommendations addressing government practice and policy in particular, Parliament will be the place that demands of us the answers. That is right and proper; it is very important that we ensure that it happens. I have no doubt that, if my department were under question by the commissioner, issues would be raised in your Lordships' House, to put it politely. I expect that we would look to Parliament to do that work.
Where we have local government and service providers, part of the role of government is to press for answers to the commissioner's concerns. Regulatory bodies may be able to exert their influence. I have no doubt that the commissioner will be very public and vocal in raising concerns, as is right and proper, so that there is a general embarrassment factor, which is also very important.
I am not wedded to the proposed system; it does not quite work for me. I am always anxious about putting so much on the face of the Bill, although I appreciate that such amendments are often tabled to elicit debate in any event. Perhaps we could have a conversation about the matter—this is off the top of my head—as we are very comfortable with the principle, but I would like to explore further existing mechanisms that might be better used. I am always reluctant to create new mechanisms if we can use existing ones. Perhaps we could consider where the tension points might be, as so many organisations feel very strongly about the matter—although it has not been raised with me, so I am in the dark in that regard. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Walmsley: My Lords, I am shocked, horrified and mortally wounded to know that the Minister thinks that my amendment is bureaucratic. She is criticising the legislation on the commissioner for Northern Ireland, because, as she correctly said, we have based the amendment on that legislation. We were so specific in order to avoid accusations of being woolly and vague; yet, in being specific, we are criticised in a different way.
The Minister mentioned what would happen if the commissioner made recommendations about her own department. She is correct in saying that if her own department did not respond to such recommendations, noble Lords would keep her very busy at Question Time. The problem is that noble Lords would not be able to keep other organisations so busy. That is why we need something in the Bill to ensure that the commissioner has teeth.

949
However, I very much welcome the Minister's on-the-hoof seat-of-the-pants flying today—with a sideline glance at the Officials' Box—in suggesting that she may be able to come back at Third Reading with a recommendation on how we could ensure that the commissioner was responded to appropriately. I look forward to hearing what happens in that respect, and would very much like to carry on the conversation with the Minister until Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 26:
After Clause 4, insert the following new clause—
"POWER OF CONSIDERATION AND REPRESENTATION BY COMMISSIONER
(1) Section 75A of the Care Standards Act 2000 (c. 14) (additional power of consideration and representation) is amended as follows.
(2) Omit subsections (1) and (2) and insert—
"( ) The Commissioner may consider, and make representations about any matter affecting the rights and welfare of children in Wales to—

(a) the Assembly, and

(b) where the matter is not devolved and the Commissioner considers it appropriate, to the responsible United Kingdom Minister of the Crown or government department.""

The noble Baroness said: My Lords, I preface my remarks by thanking the Minister for the open way in which she has discussed the issues. I am slightly hopeful that her response may bring me some comfort, following our brief discussion before we entered the Chamber today.
I shall also speak to Amendment No. 27. Amendment No. 26 is identical to an amendment tabled in Committee. It amends the Care Standards Act 2000, by which the office of the Children's Commissioner for Wales was established in the first place. Amendment No. 27 sets out how the Children's Commissioner in England shall consult and work with the other Children's Commissioners. It is essential that children in the same household have a clear route to their champion and that the Children's Commissioner can deal with all the issues that children raise with him or her in the same manner, whether the department is devolved or not.
Children are unaware of government structures and their difficulties do not easily split between devolved and non-devolved issues. A child can request help from the Children's Commissioner in Wales because he is homeless, but it appears that he could not do so if he was then in police custody. That seems perilously to cut across the child's access to the commissioner and all that is intended with that. As the English commissioner will now have such powers, it is essential that the Children's Commissioner in Wales is able to represent the issue for Welsh children direct to whichever body that child has raised issues about, whether it be in Wales alone or centrally in England on a UK basis.
In Committee, the question was raised about the appropriateness of amending the Care Standards Act during the passage of the Bill, but it seems to me timely—indeed, essential—that as the Children's Commissioner is to be established for England, the Children's Commissioner for Wales has powers to work with the commissioner in England. I briefly remind the House that the Government have stated that they want a fair, consistent and equal approach to all non-devolved policies, irrespective of their geographic location. That was outlined in their response to the first report of the committee session on the empowerment of children and young people in Wales.
The purpose of Amendment No. 27 is consequential on focusing the Children's Commissioner in England. It requires the Children's Commissioner for England to consult and collaborate with the other commissioners on UK-wide issues and with appropriate commissioners on issues affecting children in more than one country. That has been strongly supported. I will not go through the list of supporting organisations, but I draw the House's attention to the fact that it is also supported by the commissioners themselves in Wales, Scotland and Northern Ireland.
The idea of the Secretary of State in England directing the commissioner to go into one of the other countries to carry out a formal investigation seems strange, given that there will be a commissioner in each of the devolved countries. This debate is not about devolution of government functions; it is about an independent Children's Commissioner being able to exercise his functions in each country in relation to all matters that affect children's rights and interests.
A legal opinion from Jack Beatson QC has advised that there is no obstacle inherent in the devolution settlement to prevent the sovereign Westminster Parliament from establishing a commissioner with the powers envisaged by the National Assembly for Wales. I emphasise that the National Assembly for Wales also supports the request for those increased powers for the commissioner in Wales and for collaborative working between the different commissioners.
On UK-wide issues—tackling child poverty and increasing safeguards for children in custody, for example—there will be clear value to the commissioners consulting together and collaborating to promote and safeguard children's rights, views and interests. However, it is essential that in each country, children have their own commissioner who fully understands the law, policy and practice in that country, as well as being aware of the society's culture, languages, traditions and demographic make-up.
I finish simply by citing a joint briefing issued earlier during the Bill's passage. The commissioners in Wales, Northern Ireland and Scotland together stated:
"We want all children to have easy access to a Commissioner who will act independently on their behalf and jointly with other Commissioners where appropriate. We need to take a holistic view of children's needs—not one dominated by the complicated government and legal structures arising from devolution".

951
In the words of Jane Hutt, whom I met earlier today, we need a one-stop shop for children.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, as Amendment No. 27 is grouped, I should say that if Amendment No. 27 is agreed to, I cannot call Amendments Nos. 28 or 29 due to pre-emption.
4.15 p.m.
Lord Roberts of Conwy: My Lords, we have touched on the substance of these amendments in discussing Amendment No. 4 earlier today. That amendment changes the remit of the Children's Commissioner and confines him or her to England, rather than the United Kingdom. As I pointed out, that has implications as far as the situation in Wales is concerned. It is clear that there is a need for clarification, if nothing else, of the respective roles of the Children's Commissioners for Wales and the United Kingdom, or England as the case may be, and the relationship between them. There is a functional overlap between them in Wales, and I dare say similarly in Scotland and Northern Ireland.
By the nature of his appointment, the Welsh commissioner—which is a Crown appointment, but paid for by the National Assembly for Wales—can officially only deal with children in so far as they come within the scope of devolved powers. When children are affected by non-devolved powers, the Welsh commissioner can make representations to the Assembly, which can then carry them forward to the relevant Secretary of State. As I said this morning, what happens in practice is that the Welsh commissioner has informal talks with officials at the department concerned.
Again, as I pointed out this morning, under the present dispensation the Welsh commissioner can call on the UK commissioner to back him up by devoting himself to the problem that the Welsh commissioner has seen in a non-devolved area. There is no doubt that it is an untidy situation. An individual child may have a problem that crosses the boundaries of devolved and non-devolved areas of government. Such problems are no respecters of such artificial boundaries. I look forward to hearing the Government's comments on the solution proposed in Amendment No. 26, which seems reasonable enough to me, and formalises what happens informally now.
Amendment No. 27 does much the same. One of my first concerns on reading this Bill was the relationship between the commissioners. We all want there to be close collaboration between them to avoid duplication of effort and to maximise mutual benefit. Amendment No. 27 puts all that in the Bill. Although the Government may argue that it is not necessary, the Bill is improved by having these matters in it.
Lord Thomas of Gresford: My Lords, in Wales, when we have a rugby match, the team warm up and there is a lot of punching of one's chest, punching of other players, running up and down on the spot, and even banging one's head against the wall. Then you go out to play. It was in that spirit that in 2001 when we were dealing with the Children's Commissioner for
952
Wales Act, that we attacked the noble Lord, Lord Williams of Mostyn, who was then leading for the Government.
As a result of that match, we ended up with Clause 75(a) being inserted into the Care Standards Act 2000 as a little bit of a compromise. It provided that the Welsh commissioner may consider and make representations to the Assembly about any matters affecting the rights or welfare of children in Wales. The compromise was that the Welsh commissioner could not go straight to Whitehall and deal directly with the Secretary of State in the particular area that he was concerned with, but he had to go through the Welsh Assembly.
That was as much as we could gain in that match, and so we warmed up today, but it may be that we are in a situation where if you go out on to the pitch and someone hits you on the nose in the first minute, all the steam drains rapidly away. We were informed that the Minister was going to give us some good news at a later stage this afternoon. However, I must play the game as it is written, so she will forgive me if I remind her of some of the evidence that has been given to the Welsh Affairs Committee of the House of Commons by Jane Hutt, on 22 April. She said:
"We are going to see a much more holistic service for children, safeguarding children, as a result of a Children Bill which has strong Welsh clauses and I think this is the spirit in which we must try now to move forward in enabling and ensuring that children in Wales have one point of contact, with one Children's Commissioner, our Welsh Children's Commissioner".
Jane Hutt is the Minister responsible in the Welsh Assembly. She made it clear to the committee that whatever the arrangement, there should be a single person who is the Children's Commissioner for Wales to whom children could take their complaints. Of the Bill, she said:
"It is difficult for me to go into practicalities, but … if a child is engaged with the youth justice system, then we would hope that the child or young person would be able to relate to the Welsh Children's Commissioner. But obviously the Welsh Children's Commissioner then would be relating to the English Children's Commissioner in relation to the issues or problems and thence, if appropriate, to the Secretary of State for that reserved function".
She was suggesting that the English commissioner would be a buffer between the Welsh commissioner and the Secretary of State.
The amendment proposes to remove the English commissioner and all his officials and make it possible for the Welsh commissioner to go directly to the appropriate Secretary of State; not through the Welsh Assembly, not through the English commissioner, but as of right himself.
Indeed, Jane Hutt, who clearly is very sympathetic to the point of view that we are putting forward, said that,
"we would want to make sure that the Welsh commissioner was able to have the clout … on behalf of Welsh children to know that something was being considered fully by the Secretary of State and the UK Government as it would be by the Welsh Assembly Government".
In giving her evidence, Jane Hutt was followed by Mr Peter Clarke, the Welsh commissioner. I have already referred to some parts of his evidence. He was

953
told that the recommendation of the Welsh Affairs Committee was to have the powers given to him under both reserved and non-reserved powers within Wales; indeed, they would be extended into England where there are Welsh children who are in custody and that he should have the power of direct representation.
He was asked what powers he lacked at present. He said:
"My current powers are there but I do not have my strongest powers in the area of non-devolved matters. I cannot require documentation to be given to me."
That means that he cannot call for documents. He continued:
"I cannot require the attendance of witnesses to give evidence on oath if I am conducting an inquiry. From the point of view of being the most powerful children's champion possible it would be good from my perspective if the current Children Bill were amended to extend my powers over those matters".
Peter Clarke told the Committee that the Westminster Minister, Mrs Margaret Hodge, had told him that it was non-negotiable for this Bill to extend those powers. On 4 May, when she gave evidence to the Welsh Affairs Committee, she was asked about that. She said:
"I said it was non-negotiable whether or not we would use the vehicle of creating an English Commissioner for England as a means of adding to the powers of the Welsh Commissioner on non-devolved matters".
Dr Francis, who was questioning Margaret Hodge, said:
"'Non-negotiable' is a word that would have been used in the days of undemocratic devolution. Now we have democratic devolution. Surely these issues are all negotiable".
Margaret Hodge replied:
"The government view is … reflected in the clauses that we have put in the Bill that is being currently considered through the parliamentary process. Clearly, we will have to see how that parliamentary process works its way through the system, but the government view is that this is not a vehicle in which we are prepared to extend the power of the Welsh Commissioner on non-devolved matters".
Why not? When are the issues of a Children's Commissioner—whether in Wales, England or any other part of the United Kingdom—next going to come before Parliament? When will there be an opportunity for this matter to be debated and considered further? It would be extremely sensible and practical for the Welsh commissioner to have access to the relevant ministry in non-devolved matters. That does not mean that we would be breaching something that I have often attacked, the devolution settlement, by so doing.
We would not be adding to the powers of the Welsh Assembly by giving the Welsh commissioner these powers. It is only sensible that he should have within his compass powers to look after the interests of every child who happens to be in Wales, whether that child is in prison and therefore subject to the Home Office—a non-devolved area—or whether the child is in hospital and subject to the devolved matters concerning health. What difference does it make?
We have already debated today why the English commissioner should have any powers in Wales, and we have carried the necessary amendment at least to limit
954
them. Why should not there be direct access to Ministers? As the noble Lord, Lord Roberts of Conwy, pointed out, the Welsh commissioner has already made informal approaches on a number of occasions to the Prison Service and the police, along with various other institutions, to make representations on behalf of children in Wales. On only one of those occasions has he met a problem. He had been able to obtain the medical records for a child, but the police refused to allow him to see the police reports because it was a non-devolved matter. These distinctions are ludicrous.
I shall not weary noble Lords by going into the question of what should and should not be devolved to Wales; that is for another day. But it is ridiculous that whether a matter is devolved is used as an excuse to prevent the Welsh commissioner having full powers over the interests of children in the Principality.
Lord Prys-Davies: My Lords, I support Amendments Nos. 26 and 27 and I wish to express my gratitude to the noble Baroness, Lady Finlay of Llandaff, for tabling them. The background to Amendment No. 26 has been fully explained to the House. I think that I can best help by pointing out that the situation is unsatisfactory and that there are four basic and obvious weaknesses in the present arrangements.
First, the Assembly may decide not to carry the matter forward. Secondly, even if the Assembly decides to take the matter forward, the Assembly Minister or official in charge of the exercise will not have full command of the detailed facts which are available to the commissioner. I am sure that the Assembly Minister or official would do his best, but that can be only second-best and therefore he may fail to get to the root of the problem.
Thirdly, there may well be a waste of valuable time for the child or young person in deciding whether or not the particular subject area is a devolved matter. That can be a difficult issue. Fourthly, I recall that my noble friend Lady Gale asked at Second Reading about the child or young person in Wales who does not know the difference between a devolved and a non-devolved area. It is puzzling, confusing and unsettling.
So for all those reasons the position is simply unsatisfactory. Therefore the question must be: how can it be improved? I believe that the amendment tabled by the noble Baroness offers a way forward. As explained by the noble Baroness, Lady Finlay, the object of Amendment No. 27 is to provide a secure statutory basis for the commissioners to consult and work together on matters concerning children's rights and interests throughout the UK. I have read the Bill carefully but a statutory duty to consult on such matters does not exist. If I am wrong, I am sure the Minister will correct me.
But there are matters which affect all children throughout the countries of the United Kingdom. These should be addressed by a dialogue between the UK commissioner on the one part and the three territorial commissioners on the other. I believe that whatever the UK commissioner can do on issues and themes that

955
affect the children of the UK, can best be done in consultation with the other three commissioners—drawing on their knowledge of their territories, drawing on their experience, drawing on their skills—and then agreeing or negotiating a common approach wherever possible.
Without such consultation one can safely predict that the reports of the UK commissioner could prove to be inappropriate in Wales or Scotland or Northern Ireland. I therefore very much hope that Amendments Nos. 26 and 27 will bring forth a positive response from my noble friend Lady Andrews.
4.30 p.m.
Baroness Andrews: My Lords, I am grateful to the noble Baroness, Lady Finlay, for the opportunity to debate again the implications involved in the relationships between the four commissioners, not least because it gives me a chance to report on the progress that has been made since we met in Committee. I do not know how good the good news will be. I am sure that I shall be unable to deliver it with the sheer charm of the beloved late Lord Williams. I hope noble Lords will understand that we have listened to the arguments but—I cannot soften the blow—we cannot accept the two amendments. I shall explain why in due course.
As previously, there have been powerful arguments. I understand how strongly noble Lords feel about these issues. Essentially, the amendments address the Welsh commissioner's remit over non-devolved matters and his relationship with his UK counterpart. Amendment No. 26 would give the Welsh commissioner powers to make representations to the National Assembly for Wales and to UK Ministers.
The situation has not changed since the Committee stage, when I described at some length the existing scope and ability for the Welsh Children's Commissioner to make representations to the Assembly on non-devolved matters affecting children. There is nothing to stop him making representations to the relevant UK Minister. Indeed, I know that the Wales Office has confirmed to the Welsh commissioner that he is welcome to approach it at any time.
In the light of the changes that were made to Clause 2 today, which have slightly complicated matters, Amendment No. 27 would require the four commissioners to work together on matters relating to the rights and interests of children across the UK. However, it would still leave a gap in that the commissioner would not be able to report to the UK Government on non-devolved matters. The Government continue to believe that this is a serious omission and that the English commissioner, working with his counterparts, should have this function.
Let me take these issues one at a time. We had a very good debate in Committee on the impact that the commissioner clauses might have on the devolved nations, and on Wales in particular. The focus of the debate was primarily on the relationship between the Children's Commissioner and the Welsh commissioner and how it
956
might affect the way in which the interests and the representation of children in Wales on non-devolved matters were dealt with.
The issues we discussed, however, obviously invited an outcome that worked for all the devolved nations. At the end of the debate, I told the Committee that we would take the issue away and explore the ways in which we might be able to ensure that there was no confusion about the roles and effectiveness of the new commissioner and his or her three equal counterparts. Issues of confusion were very much in the minds of noble Lords, with various illustrations given of how that might occur.
I must repeat two important provisos that I made in Committee. This is not the good news, I am afraid. First, we will not use the legislation to extend the powers and the remit of the Children's Commissioner for Wales. We remain convinced that it is neither the right time nor the right way in which to make such changes.
Secondly, I should like to give the assurance that I gave earlier that by creating a new commissioner, we will do nothing that will undermine or diminish the existing powers and remit of the three established commissioners in the UK. We have reiterated that pledge in many different ways and circumstances.
What we want to do—it has been described this afternoon as tidying-up or matters of dialogue—is make sure that the relationship between the commissioners works as smoothly and transparently as possible for the benefit of all children in the UK, wherever they are. We aim to create a system that children can understand and from which they can benefit.
We have listened very carefully during the debate, and discussions have since taken place at both ministerial and official level to find a solution that works, above all, for children and young people. First, in response to the debate over the formal relationship between the proposed commissioner and other commissioners, we are attempting to clarify matters. We are looking at ways of sending a clearer message by way of the legislation that the England/UK commissioner is not a "first among equals" but an equal partner with other commissioners. We still want to find a clearer way of presenting his role in relation to England and in relation to the UK as a whole, defined in terms of language and scope, but also in a way which is consistent with the devolution settlement. We continue to believe, however, that it is logical for the English commissioner to have the reporting power to the UK Government through non-devolved issues. We need to think about this and, as I said, discussions are in progress.
Secondly, we still want to ensure appropriate and effective co-operation between the commissioners so that children are not confused and their interests are served properly, no matter what they entail. We think the best approach is for the commissioners to get together to decide how best to do this—that is the nature of the dialogue we envisage.

957
We will also study the Bill and make any necessary changes we believe are important to enable this to happen. Should we conclude that there should be legislation to promote effective co-operation between the commissioners, we would want such legislation to be of an enabling nature, which would allow commissioners to work out the detailed procedures between them. For example, if the English commissioner has a remit to report on non-devolved issues, as we intend, the commissioner could be enabled to ask his or her counterparts to undertake certain tasks relating to non-devolved matters in their nation, on his or her behalf. They would, of course, have the right to refuse. Such a conclusion would seem to take care of some of the issues that have been raised.
Noble Lords will know that the existing commissioners are extremely committed and impressive professionals. They have children's interests very much at heart. We are confident that they will use the legislation as a frame around which to develop effective practices. We have spoken before about the commissioners drawing up their own independent protocols or memorandum of understanding. These are extremely useful tools. They will certainly help to ensure the clarity of the communication process. We anticipate that they will cover issues such as how the commissioners pass on communications from children, when it is appropriate to do so, and how they will keep one another informed of the views of children. We hope that this will be explicit.
We listened carefully to what noble Lords said in Committee. Discussions are taking place at all the relevant levels. I therefore ask noble Lords to bear with us as we take these very complex discussions forward. We must be certain of the outcome. There are technical and legal aspects that need to be thought through very carefully and we want to press ahead with the full agreement of our colleagues in Wales, Scotland and Northern Ireland.
As noble Lords know better than most, with many powers and functions devolved to the administrations in other nations, and an independent commissioner in each of them, it will require thorough investigation. I cannot provide more detail at this point but I reassure noble Lords that we are working very hard to find a practical way forward that best serves the views and interests of children, wherever they are in the UK. I am sure that the commissioners will support us in that. With that in mind, we hope to have concrete proposals to bring forward when the Bill is debated in another place in a short while. I hope that with those reassurances, and recognising the hard work that is going into making these relationships and processes as clear, transparent, robust and effective as possible for children across the UK, noble Lords will be able to withdraw the amendment.
Lord Roberts of Conwy: My Lords, before the Minister sits down, I have listened very carefully to what she said but it seems to me that it is not a full explanation of why the Government are rejecting the amendments, particularly Amendment No. 27, which
958
spells out that the commissioners shall consult and work together. It is something that looks fairly simple to put on the face of the Bill and yet the Government say that it is a complex matter and so on. Is that really the sticking point? Or is there a financial angle to this difficulty over collaboration?
Baroness Andrews: My Lords, we believe that the process that we are taking forward will ensure that effective consultation will be achieved by the creation of opportunities for dialogue between the commissioners and by looking at the potential for enabling this. The problem with the amendment is that it would leave us in a position where the commissioner would not be able to report to the Government on non-devolved issues in relation to Clause 2. We would have to address that omission. As this is slightly complex, I would prefer it if I could write to noble Lords about this and give some further detail.
Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for her reply. I am, of course, disappointed but I hear the message asking us to bear with the Government and the commitment to carry on looking at this and to introduce changes to the Bill when it goes to the other place.
I am concerned that the amendment stressing that the commissioners must consult and work together is not currently going on the face of the Bill because one could have a clash of philosophy, for example, that could impede the working of the commissioners. There is a lot to be said for making this a statutory requirement. I am very grateful to the noble Lords who spoke in support of this amendment for making their points so strongly. They are now all on the record.
I advise the Government to look again at the legal opinion from Jack Beatson QC in February, of which I think they are aware. He said:
"The operation of the doctrine of ultra vires and the (sometimes uncomfortable) nature of the Commissioner's investigations and recommendations make it fundamentally important that the Commissioner be given as broad a mandate as Parliament considers possible and for this mandate to be laid down in law to enable the Commissioner to conduct his office without having to depend upon the "good will" and co-operation of the UK government (of whatever composition) for his effectiveness".
This, of course, was advice given to the Children's Commissioner for Wales group.
Given that I accept the Government are actively looking at the matter and discussing it with the Assembly, I shall withdraw the amendment at this stage. However, I shall be concerned if the Bill progresses further without these issues of compatibility between the different regions really being addressed. I am convinced that there is confusion out there, and that confusion will continue unless we have very clear lines of reporting regarding to whom the children go and to whom the commissioner goes—sometimes rapidly, as has been said—when a problem seems to be emerging. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Clause 5 [Relationship with other Commissioners]:
[Amendment No. 27 not moved.]
Baroness Thornton Baroness Thornton moved Amendment No. 28:
Page 4, line 16, at end insert—
"(d) to the extent that such matters relate to children in one or more of the English Regions, take account of the views of and any work undertaken by any relevant Regional Children's Commissioner"
The noble Baroness said: My Lords, in a way I am following on from the noble Baroness, Lady Finlay. She used the word "regions" when I think that she meant nations. I am talking about regions. It is ironic that if the previous amendment had been accepted, it would have meant that the House was precluded from a discussion about the English regions, which is what these amendments are concerned with.
Amendment No. 28 would add to the subsection concerned with the relationships between the different commissioners. Amendments Nos. 32 and 33 would add a suggested remit of what a regional commissioner might do. Amendment No. 33 has one of those things in it that brings my noble friend the Minister out in hives; that is, a list. Amendment No. 144 seeks to amend the Title of the Bill.
The heart of this problem is that there is no recognition in the Bill of the regional dimension for England. I should like to put on record my thanks to the Minister for the discussions that we have had so far. I note that the noble Lord, Lord Tope, who added his name to the amendment, is not present. I suspect that he is on a train between here and Brussels where he has attended a meeting on the European regions, funnily enough, and has not yet made it back. However, we had a useful discussion with the Minister, and I am very grateful that she found the time to do that.
These amendments in a way constitute a gallop around this issue at this stage. A key omission from the Children Bill is the lack of regard to the role of regional government structures in England. The amendments would include provision of an appropriate regional mechanism within the national commissioner structure. The amendments would introduce a mandatory requirement to appoint regional children's commissioners, which would ensure a consistent and coherent approach rather than allowing them to develop in a patchwork or ad hoc fashion.
In Committee, noble Lords on all sides of the Chamber supported the need for the Children's Commissioner's office to operate with an understanding of the complexity of regional government structures and responsibilities affecting children's lives. These amendments address the Government's point, made by my noble friend Lady Andrews in Committee, that,
"a model for London takes us into the issue of models for other regions".—[Official Report, 6/5/04; col. 1338.]
In many ways, my concern echoes the debate we have just had in which the noble Baroness, Lady Finlay, spoke about a one-stop shop for children in the nations of the UK. The same applies to children in the regions of England. While it would be possible for variants of, for
960
example, the office of the Children's Rights Commissioner for London to be set up in other regions, if this was done outside the process of this Bill it would have the significant disadvantage of being non-statutory. By not falling within the Children's Commissioner provisions in the Children Bill, they would lack the statutory authority or power. In addition, such a model could be confusing for children and young people and the wider public in the regions if there were an England commissioner and a regional commissioner with different roles and responsibilities.
The Minister expressed concern in Committee about the creation of an inappropriately complex structure at this stage and suggested that the first months and years might not be the time to overload the commissioner with new challenges. However, I pray in aid the Government's proposals to create the new commission for equality and human rights. That new commission would have a presence in each of the nine English regions, as proposed in the DTI White Paper issued very recently, Fairness for All: A New Commission for Equality and Human Rights. It is envisaged that that regional network would help to deliver the commission's strategic priorities in a way responsive and sensitive to local and regional needs, rather than through a one-size-fits-all or overly centralised approach.
We seek to ensure that the Children's Commissioner's function is engaged with local government on the issues of health, social care and education, and with regional government in the issues of planning, community safety and cultural and transport policies as they affect children. I am aware that that has budgetary implications. The current budget for the Children's Commissioner for Wales is £1.4 million a year. The cost of a regional commissioner mechanism would be substantially less than that. The principle needs to be discussed.
I want to say something about numbers and give the example of a regional commissioner in London. London has 1.62 million children, which is two and a half times the number in Wales, three times the number in Scotland, and one and a half times the number in Northern Ireland, where there are already commissioners. London's children continue to experience the highest levels of poverty and inequality of any region in the UK. For example, after housing costs, the child poverty rating in inner London is 48 per cent. A regional commissioner structure would help to reflect the diversity of London's children, 41 per cent of whom—53 per cent in inner London—belong to a black, Asian or ethnic minority group.
London is also home to a disproportionately high number of children who are doubly disadvantaged by poverty and discrimination, including refugees, the homeless and the disabled. London's children are particularly susceptible to the effects of environmental degradation such as poor air and unsafe play areas. However, in the fullness of time, similar arguments will be made and deployed about the things that affect children in rural communities, isolated communities and small villages, as the English regions develop and

961
set up their own structures. Therefore, the question facing us is how to recognise the regional dimension at this stage of the Bill. I beg to move.
Lord Hylton: My Lords, it is good that the amendment was moved from the Government's Back Benches; I am very glad that that is the case. Amendment No. 28 suggests taking account of regional views, which is important. I hope that they will be genuinely helpful to the Government. I also welcome the group for a reason that I gave on Second Reading and twice earlier today—that I want English children to be just as well protected as those living in other parts of the United Kingdom.
There have been some references to the very much larger workload concerning children that arises in the natural course of events in England. The noble Baroness, Lady Thornton, made special reference to London. Of course, that is true. I should add that in London one will find a disproportionate number of children whose first language is other than English. That poses huge problems for the education system.
Finally, in support of this group of amendments, that accountability of regional children's commissioners will be important and the long-term solution will lie with future English regional assemblies—whenever we get them. I hope that the Government take this group seriously.
Baroness Andrews: My Lords, I am grateful to noble Lords who have spoken on the amendment, particularly to my noble friend, because she is a great champion of regionalism. I wish I could give her more satisfaction in response to her amendments. I shall explain why it is difficult for us to do that and our solutions.
Amendment No. 32 establishes posts for regional children's commissioners in each of the nine English regions and Amendment No. 33 specifies the role of those commissioners in assisting the Children's Commissioner and the issues to which they would have regard. Amendment No. 28 requires the Children's Commissioner to take account of their work and Amendment No. 144 is consequential on the Bill's title page.
We discussed these issues in Committee in the context of an amendment seeking to establish an assistant commissioner for London. As I said then, different regions and areas face different challenges. We would expect the commissioner to be aware of and to respond to them.
Without reiterating the argument, we would expect the commissioner to be well aware of the differences and the imperatives of different regions that make a critical difference to children's lives. The issues that contribute to regional differences—equality, the different pressures on children and families, and language, as the noble Lord, Lord Hylton, mentioned—can mean a loss of opportunity and access, as well as discrimination and disadvantage across the country.
962
Those issues are listed in subsection (2) of Amendment No. 33 and are those that the commissioner will wish to bear in mind when considering whether and how to address regional matters. However, returning to our point of principle, there are no analogies between other bodies and the commissioner, who will be a unique agency for addressing complex and widespread issues. We, in Parliament, should not impose structures on the commissioner. We should leave it to him or her to decide how best to deploy their staff and priorities. It is possible that the commissioner may choose to focus the work of his office by region, by age group, or by topic—or any mixture of those options. We will all watch that closely, but he will be independent and we should not interfere with his freedom to operate as he sees fit.
There is a separate question of how the commissioner takes account of and interacts with regional bodies. In exercising his functions he will relate to regional and local bodies as much as to national bodies. Again, in response to the remarks of the noble Lord, Lord Hylton, the commissioner will certainly take account of regional views. He will be aware, as we all are, that there is a powerful regional dimension to policy that is developing all the time. Regional and local organisations are extremely relevant to the scope and impact of the commissioner's work. As regional government grows and becomes more powerful, it has a serious job to do in listening and responding to the needs of children. We must not undermine that in any way and I am sure that the noble Baroness would not dream of that—nor would her amendment do that—but it is a matter that we should bear in mind.
There is a powerful dynamic in regional government and it may be that there will be more local or regional commissioners along the lines of the London pilot. Of course, the Children's Commissioner would want to build on the work of others. That would be certainly be a way of engaging young people in the regions and assisting the national commissioner in getting their views. Ensuring that children across the diverse regions of the UK receive equal benefit from what the commissioner will bring will be a vital dimension of the commissioner's work.
I am sorry that I cannot accept my noble friend's amendment, but I hope that she understands the reasons why we take that position and that she will be able to withdraw her amendment on those grounds.
5 p.m.
Baroness Thornton: My Lords, I thank the Minister for her answer and the noble Lord, Lord Hylton, for his support. I had hoped for slightly more comfort and that the Government might recognise that the Bill does not mention the English regions at all. If we expect the commissioner to do all of the things that the Minister has described, the Bill must reflect that—a list may be too prescriptive. There has to be some mention in the Bill of the need to recognise the regions.

963
The Government need also to address the issue of how children will be best served by the legislation. They will not be best served by a patchwork of different commissioners at different levels doing different things, with something like 10 different telephone numbers being available to children to ring a Children's Commissioner. I fail to see how English children will be served by that. While I am of course prepared to withdraw my amendment, further discussion of this matter is needed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews Baroness Andrews moved Amendment No. 29:
Page 4, line 16, at end insert—
"( ) The Children's Commissioner may not under section (Inquiries initiated by Commissioner) hold an inquiry where the issues referred to in subsection (1) of that section relate to a matter referred to in subsection (1)(a) to (c) above.".
Baroness Walmsley Baroness Walmsley moved Amendment No. 30:
After Clause 5, insert the following new clause—
"CONSISTENCY OF LEGISLATION WITH CHILDREN'S WELL-BEING
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a) make a statement to the effect that the provisions of the Bill have been assessed for their contribution to the well-being of children, relating to the aspects specified in subsection (3)(a) to (e), and that, in his view, the provisions of the Bill do not act to the detriment of any child or group of children in respect of those aspects; and

(b) make available in each Library of the Houses of Parliament a copy of the assessment made under subsection (1)(a); or

(c) make a statement to the effect that although he is unable to make a statement under subsection (1)(a) the government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.
(3) For the purposes of subsection (1)(a), the aspects of children's well-being are—

(a) physical and mental health;

(b) protection from harm and neglect;

(c) education and training;

(d) the contribution made by them to society; and

(e) social and economic well-being."

The noble Baroness said: My Lords, I return to an amendment that was tabled also in Committee. It was written for us by the Children's Society. It would place on the Government a similar duty to that under Section 19 (1)(a) of the Human Rights Act 1998; that is, to make a statement of compatibility with the five outcomes proposed in the Bill.
Of course, the amendment was written before we upset the applecart this morning and threw out the five outcomes. However, I should like to initiate a debate on the principle of the need for government to assess the impact of legislation on children. The amendment would also ensure a child impact assessment process for all new legislation, for which the Children's Commissioner, under Clause 2, and local agencies, under Clause 6, will
964
be accountable. That would provide a much needed and effective mechanism for improving the co-ordination and consistency of policy-making affecting children across all departments and levels of government.
When the amendment was tabled in Committee, it received Cross-Bench support. Although the amendment was rejected by the Government, the Minister, the noble Baroness, Lady Andrews, welcomed its underlying aims and gave an assurance that the intention of the Government was indeed to ensure consistency and co-ordination in improving outcomes for children at national government level.
The Minister also highlighted a number of developments and initiatives that the Government have already put in place. The Government's commitment to changing and improving policy-making for children, as expressed in Committee, is both recognised and very welcome. However, there are several reasons why we believe that the amendment, or something like it, should be accepted. Clearly, given earlier events, I shall not be testing the opinion of the House on it in its present form, but it provides important added strength to the new framework that is being introduced.
In Committee, the noble Baroness, Lady David, asked why such a child impact assessment process should not be based on the articles of the UN Convention on the Rights of the Child, rather than on the outcomes for children as are being created in Clause 2. Indeed, the noble Baroness, Lady David, who is not in her place at the moment, may have been looking at her crystal ball and may have realised that the outcomes would not be there. Therefore, the UNCRC may be a more appropriate framework for such an assessment.
What is essential at this stage is that a lasting statutory commitment to children is made right across government as part of these measures. It is important that national government should monitor and account for their impact on children's well-being, to make them as accountable as the Children's Commissioner, who is required by the Bill to report on progress on the outcomes, as it used to stand, and the new children's services authority, which will be responsible in planning arrangements.
We wholeheartedly agree with the Minister's statement in Committee that all legislation that we pass in the House has an impact on children. She said that she could think of no exceptions. It would be all too easy to presume that some new policies and legislation are not children's matters and need not be the subject of explicit assessment or debate about their impact on children. For example, reforms to the NHS, transport, environment or housing policies can be seen as either managerial issues in which children have no obvious interest, or areas in which children are invisible members of the general population, represented by their parents' interest as adults, rather than seeking to identify impacts on children as a discrete group. We all know, however, that children can be significantly affected by such wide-ranging reforms. For example, they have been affected by the

965
way in which primary case services have changed and evolved as a result of the primary care trusts, and we know of the health impact of traffic pollution on children's asthma rates.
The Disability Rights Commission believes that child impact assessments for all new legislation would provide a vitally needed means in which to address the impact of new measures on the life chances and opportunities of disabled children and other disadvantaged groups, and the extent to which they promote equality or potentially discriminate. Requiring Ministers to provide statements with all Bills, setting out the compatibility or otherwise of the measures with key outcomes or sets of rights for children, would open up the legislative policy-making process to more effective scrutiny and accountability.
The case for expert assessment of the possible impact for children remains. The responsibility should be clearly placed on government to account for the way in which any new legislation will contribute to outcomes for children, thereby enabling local structures to deliver those outcomes on the ground. Parliamentarians have a vital and well respected role to play in championing the rights and needs of children and young people. The publication of the Government's assessment of the impact of any new legislation on children will greatly enhance the level, depth and quality of debate in both Houses of Parliament and the contribution of Members to the parliamentary process.
This is the first major Bill relating to children since 1989, and it is important to get it right, as it may be another 15 years before we get another chance. If we passed an amendment such as this one—although perhaps not this one, given the faults that I have just outlined—it would be an opportunity not only to improve this Bill but to set in place a mechanism that can improve all future legislation as it relates to children. It is a very far-reaching amendment and, although I shall not press it to a Division today, I shall be most grateful for any other contributions on the matter and for the Minister's response about the principle of the impact assessment. I beg to move.
Lord Northbourne: My Lords, I have for some years been an enthusiast for the idea of child impact statements on legislation, and it may have been a remark of mine that led to the All-Party Parliamentary Group on Children experimenting with impact statements. The difficulty is that it is an extremely complex issue. For example, what is the impact on children of a gas Bill? It will be different for children of different ages and in different circumstances. It could be dangerous or advantageous—because it keeps them warm. One ends up not with a piece of paper such as this but with a great tome, which is what happened to the All-Party Parliamentary Group, and it cost a great deal of money. It is necessary to have, if at all possible,
966
a more limited impact statement. I had not thought this matter through, but that is my modest contribution to this debate.
Baroness Howarth of Breckland: My Lords, I support the noble Baroness on the question of principle. In other areas, I have been used to impact statements which, as a specification, are no longer than one side of A4 paper. I think that it is possible to achieve such a specification. However, it makes people think, and we in the All-Party Parliamentary Group on Children and many other places have been doing just that. I understand that that is the emphasis that the noble Baroness is trying to achieve. In the most obscure Bills, one might well find that the impact on children is highly significant.
Baroness Howe of Idlicote: My Lords, I am also a signatory to the amendment, which clearly will have to be redrafted. It would provide a very timely method of checking on the impact of any new legislation and how it affects children.
I accept what my noble friend Lord Northbourne said. To a certain extent, like the gas Bill, the impact that legislation will have on children of different ages is a question of common sense but, in the area of equal opportunities and in areas where it has eventually come to be used, impact statements have been seen to have a very positive effect. I hope that we can work out something which will have roughly the same effect.
Baroness Finlay of Llandaff: My Lords, I rise briefly to support the principle behind the amendment. Because of the comments that have been made, it is almost a relief that the wording is not quite right at present. However, it would be an opportunity missed if we allowed a Bill about children to go through without trying to come up with a form of words which meant that the issues appertaining to children in the different ways that we live and organise our society in the UK were not given consideration somewhere on the face of the Bill.
Baroness Andrews: My Lords, I wish that Ministers had such an effect when they called for help with their amendments. The noble Baroness has some powerful champions. I am also glad that the noble Baroness reflected on the impact of what was achieved this morning in terms of outcomes. That is something of which we should be very aware.
I must repeat some of the comments that I made in Committee not only because we are sympathetic to the reasoning behind the amendment—of course, we are extremely alert to the need to be aware of the impact of legislation, and indeed of policy and practice, on children—but because we are entirely committed to ensuring that children are consulted and that their needs and well-being are taken into account when new legislation or policy is developed.
However, I continue to believe that it is unnecessary to place a duty of this kind on Ministers. I think that it could even be counter-productive. Having listened to the noble Lord, Lord Northbourne, talking about

967
the gas Bill and the processes, outcomes and complexity implied in it, we must bear in mind that there is a very real danger that a duty of this kind could add to the bureaucracy that we are working hard to reduce. Such bureaucracy gets in the way of delivering the best services.
We must also reflect on what we are doing to represent the views and interests of children. I shall not refer to all the things that I said in Committee. Then, I went through a list of the ways in which the Government are moving to put children's views and interests at the heart of what we do. That includes the new Cabinet Committee, Misc 9(D), and the work that Margaret Hodge is doing—for the first time, we have a Minister for Children.
I outlined our core principles, which lay down a common framework for government departments to involve children in the development of policy and legislation through to implementation and evaluation and the training that civil servants receive. They must take into account how children's lives are affected. Therefore, over the past year we have seen significant changes in the machinery of government.
I, too, have experience of impact statements, and I think that there is potential for the situation to go one way or the other—either by over-bureaucratising and causing, in some senses, an obstruction to delivery or by being too superficial. We need to move beyond the sense that a tick in a box indicates real progress.
The Bill is not about making symbolic gestures. It is about achieving real and lasting change in our culture so that policymakers, politicians and practitioners anticipate and think about the impact on children of ideas, decisions and actions not after we make them but before and during the process of making them. Establishing a children's commissioner is a key step forward in that. He will bring access and expertise. The noble Baroness spoke about new legislation. I would see him having a key role in anticipating how new legislation will affect children. Doubtless, he will advise Ministers on the development of legislation as a key task, and I am sure that he will not hesitate to put forward his views on that.
The promotion, protection and involvement of children in decision making is a priority for this Government. We are making real strides, but I believe that it is more effective and appropriate to continue the way that we are doing it and now with the extra support of the independent children's commissioner to ensure that children's views are integral to that process. That is better than for the Government to comment on their own plans and develop procedures which could be either over-bureaucratic or over-simplistic. I hope that, in the spirit with which that is intended, the noble Baroness will be able to withdraw her amendment.
Baroness Walmsley: My Lords, I thank all those who have supported the amendment and the Minister for her response. It is often a very effective strategy of those who oppose something to stretch it to a ridiculous extent and then ridicule it. What we propose
968
has been based on our own experience of practice in the All-Party Parliamentary Group producing a relatively short but not superficial—
Lord Northbourne: My Lords, I am grateful to the noble Baroness for giving way. I want to make the point that doing that within a group is rather different from when a Minister has to make a statement, because the Minister's statement carries with it legal obligations and liabilities.
Baroness Walmsley: My Lords, indeed, I accept that. It would be up to the Government to do that in a way which is balanced, appropriate and reasonable. I am sure that this Government would do that. But the All-Party Parliamentary Group found it extremely useful. As the noble Baroness, Lady Howarth of Breckland, said, it makes one think about the impact on children. Where the Government are concerned, of course there are resource implications for all legislation. Most children's services have a limited budget. It could very well be that it would be a useful service if the Government were able to consider the impact of any legislation on those limited budgets in relation to children's services. A new piece of legislation could very well impose obligations on them which they simply do not have the budget to fulfil.
The requirement is to make people think. As I said earlier, I shall certainly not press the amendment, but despite the reassurance of the noble Baroness, Lady Andrews, we may want to redraft this and bring it back at Third Reading. It is a matter that we shall want to consider. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments No. 31 to 33 not moved.]
Clause 6 [Co-operation to improve well-being]:
Lord Northbourne Lord Northbourne moved Amendment No. 34:
Page 4, line 32, at end insert—
"( ) the quality of family life in the family or other care setting in which they live;"
The noble Lord said: My Lords, I shall take a few moments on this amendment. Amendment No. 7 having been cut away from under my feet, I see this as an opportunity to address the same issue. This amendment flows from amendments I tabled in Committee together with the noble Lord, Lord Lucas. It raises issues about the list of five principal aspects of children's wellbeing, the list of five objectives for children service authorities in securing the welfare of children in Clause 6(2). It is the same list as is used in Clause 2(3), to which my Amendment No. 7 referred, and in Clause 20(2) in connection with Wales.
The doubts which were expressed by certain noble Lords about that list of five amendments were opened up earlier in our debate today. In a way I do not want to cover the same ground, but I should like briefly to make my points. I defer to the Minister that if a discussion is to be held between now and the next stage of the Bill, of course I certainly shall not move the amendment.
In Committee the noble Baroness made it clear that the five aspects of child welfare listed had been captured from the consultation carried out by the Government in conjunction with developing the Green Paper Every Child Matters. They represent children's views and priorities. I have studied carefully the analysis of the consultation questionnaire and the report on the consultations with children. I do not know whether these were the documents the noble Baroness was referring to, or whether she has a secret weapon that she will give us in addition to those. The replies to questions 4 and 7 in those papers are about the family. If one bears in mind the terms in which the questions were cast, it becomes perfectly clear that the children who answered those questions were extremely concerned about and interested in the quality of family life within which they lived out their lives.
I believe that many of those children would, if they had been given the opportunity to do so, have placed a secure, supportive and happy family as the most important single thing for their well-being. There is another point which I would superimpose on that. The statistics in the consultation do not identify the ages of the children questioned except those over 18, those aged 18 to 16 and those under 16. I am interested in the under-16s. Children under 13 represent two thirds of the nation's child population and children under 10 represent half.
The language used in the consultation and various other clues suggest very strongly to me that although they were represented, there were relatively few children under 10. Perhaps the noble Baroness will, either when she replies or in writing, let the House know the number of children under 13 and the number under 10 involved in those questionnaires. If there had been more younger children, there is no doubt in my mind that that would have weighted even more strongly the argument in favour of the environment of the family being a supremely important consideration to children.
Noble Lords may say—and I am trying to dispose of the argument in advance—"Ah, but you cannot legislate for happiness in the family". The answer of course to that is that one cannot legislate directly for some of the other things in this list of five. The list is an instruction to the Children's Commissioner to be concerned about the effect of certain things on the welfare of children. There is no reason whatever in my view why the quality of life in the family or other places where children live or are cared for should not be a key factor which the Children's Commissioner should take into account. I beg to move.
Baroness Ashton of Upholland: My Lords, in speaking to Amendments Nos. 39 and 84 I shall address the comments made by the noble Lord, Lord Northbourne. These government amendments to Clause 6 and Clause 20–its Welsh equivalent—seek to meet the concerns expressed by the noble Lord, Lord Northbourne, and others about the importance of the role of parents in the context of arrangements to
970
improve well-being. I have considered very carefully the best way to ensure that the Bill makes proper reference to the importance of parents and carers.
Our amendments add to the Bill a strong statement from the Government about their understanding of and respect for the critical importance of parents and carers to the well-being of children. They require the children's services authority to have regard to this in making the arrangements under the clause. In doing so, they suggest that the arrangements should support parents and carers and therefore not undermine their role—a sentiment that always underlies the noble Lord's comments. The amendment also ensures that the role of parents and carers is properly reflected in the legislation in a way that does not lead to bureaucratic intrusion in their lives.
I am very grateful to the noble Lord, Lord Northbourne, and other noble Lords for their valuable contribution to the process. In that spirit, I welcome the intention behind the noble Lord's amendment, which adds quality of life to the list of outcomes. Family life, including quality of provision for the small group of children who do not live with their family, for whatever reason, makes a crucial contribution to securing good outcomes for children.
We have had several debates during the passage of the Bill about amending the list of outcomes. Noble Lords will know that I have made many comments about lists and adding to them; I shall not repeat them. The outcomes in Clause 6(2) translate from Every Child Matters to define well-being. I would be very happy to look more carefully at statistics about which children were involved. The noble Baroness, Lady Walmsley, talked about meeting children yesterday; it is not necessarily about the numbers of children one meets but about the opportunity that one gives them to contribute to debate and deliberation. As I have tried to point out, it is not about where you end, but where you begin. There is much more to do on that.
I have no doubt that family life makes a terribly important, if not fundamental, contribution to well-being. We simply do not think that it sits properly in the list of outcomes. We have tried to address the noble Lord's concerns, but I am always happy to continue the dialogue, and to meet the noble Lord and others to see whether we can do anything further. We have thought very carefully about how best to reflect what we felt were genuine concerns—we set parliamentary counsel many challenges, and this was one of them. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Northbourne: My Lords, I apologise to the noble Baroness. In the confusion arising out of Amendment No. 7 being cut away from under me, I missed the opportunity to thank her for the other two amendments that the Government have tabled. They were a generous response to many of my concerns. I should have said that at the beginning.
I would like to continue the discussion, if I may. There is a marginal difference between, on the one hand, listening to parents as a channel of communication with

971
children, conveying information about them, and, on the other hand, the experiences that children have in their families. Those experiences are affected by all sorts of external considerations, such as housing, and should be matters for consideration by the commissioner. In that regard, I would like to challenge the five outcomes and say, "Hey, you cannot get away with those five outcomes unless you put in the other one as well". On the basis that we may discuss the matter further, I shall withdraw the amendment.
Baroness Howe of Idlicote: My Lords, I strongly welcome Amendment No. 39, in the Minister's name, as it is the first government amendment to the Bill to mention parents. Elsewhere the Bill does not mention parents at all. As a result, my noble friend Lord Northbourne and I thought, "How brilliant; let us put it in to our amendment on the children's commissioner". In the process, however, we have shot our fox. So we may have to revisit that in another way.
It is very important that the role of parents and carers is recognised. I thank the Minister for that. I support the intention behind the amendment tabled by the noble Lord, Lord Northbourne. I am sure that we shall find some way of returning to it later.
5.30 p.m.
The Earl of Listowel: My Lords, I put on the record my sincerest apologies to my noble friend Lord Northbourne. I really should have given him warning that I was withdrawing the amendment just before his amendment. It did not appear to me that it impeded his presentation, which seemed to me to he very eloquent, but I apologise to him. In future, I will make sure that this does not happen again.
Lord Hylton: My Lords, I warmly welcome government Amendments Nos. 39 and 84, which repeat twice over the importance of parents. I have received briefing from a wide range of children's societies and organisations saying that they did not want any reference to parents in the Bill at all, as if children could be treated and legislated for in vacuo, which must be nonsense.
Finally, I say to my noble friend Lord Northbourne and to the Government that the words in the latter part of his Amendment No. 34, "other care setting", are important and may be helpful phraseology for the Government to use somewhere, somehow. When children cannot be looked after and cared for by their parents, it is essential that family-like conditions be created for those children.
Baroness Byford: My Lords, I rise briefly to support and congratulate the noble Lord, Lord Northbourne, on pursuing his amendment. I know that he has technically withdrawn it, which is a shame. I will respond to the Government's amendments and speak to the amendment proposed by the noble Lord, Lord Northbourne.
Ever since I came to this House some seven years ago, we have consistently had debates on the family and on the importance of parenting. On as many
972
occasions as I have been able, I have supported those debates, because I feel strongly about the role that the family and parents play in society. It has worried me that there was no direct reference to parents in the Bill, which I thought was a great oversight. I welcome the fact that the noble Lord has pursued it.
I thank the Government for coming back with their amendments, because it is helpful to have something in the Bill. I know that the noble Lord, Lord Northbourne, will not necessarily agree about the completeness of the amendments, but he will recognise the importance of including them. I thank the noble Baroness, Lady Ashton, for bringing forward the government amendments, and thank the noble Lord, Lord Northbourne, for having pursued what is a critical issue.
Baroness Sharp of Guildford: My Lords, I too was going to support the noble Lord, Lord Northbourne, in his amendment, before he withdrew it. I also thank the Government for bringing forward their amendments. It is important that we have in the Bill recognition of the role of parents and the role of the family. Again, I join others in congratulating the noble Lord, Lord Northbourne, on his perseverance with this issue, and for the fact that he brings it forward time and time again, not just in the context of this Bill, but in many other contexts, as a reminder of how important it is.
I am delighted that the Government have placed their Amendment No. 39 in Clause 6. In looking at the process of co-operation and the relevant partners, and so on, we need to be reminded that none of this co-operation will work unless the fundamental family situation and the role of parents is taken into account. I am pleased to see this amendment, and I congratulate the Government on bringing it forward.
The Lord Bishop of Oxford: My Lords, briefly from these Benches I also congratulate the Government on bringing parents into the Bill in a proper, recognised way. As a society we ask parents to do more and more, and we hold them responsible for more and mere. The least that we can do is ensure that they will be properly taken into account in the Bill.
Lord Northbourne: My Lords, I think perhaps I should withdraw the amendment again.
Amendment, by leave, withdrawn.
Baroness Howe of Idlicote Baroness Howe of Idlicote moved Amendment No. 35:
Page 4, line 33, at end insert "including the need for a nutritious diet"
The noble Baroness said: My Lords, I believe that I am entitled to speak to this amendment now. I shall also speak to Amendment No. 76 in the group, which also includes Amendments Nos. 36, 79 and 80. When withdrawing a very similar amendment in Committee, I ended my remarks on the role of the Children's Commissioner in ensuring children's well being and diet by saying that the House,
"can take considerable comfort from what the Minister has said".—[Official Report, 6/5/04; col. 1237.]

973
Indeed, it was encouraging.
Since then, the House of Commons Select Committee report on obesity has been published. In the light of that worrying report and the urgency of promoting a healthy diet for children's well being, I felt that your Lordships would wish to have a further opportunity to discuss the role that both the Children's Commissioner—I realise that currently, to some extent, there are problems about that in what I am saying—and local authorities might play in tackling that increasingly worrying phenomenon.
I hope that your Lordships and the Minister will forgive me for raising that subject once more, but it is increasingly important as well as an urgent issue. Clearly, conclusions from the Health Select Committee inquiry in another place have reinforced the need for an integrated and wide-ranging programme to tackle the obesity crisis that they describe. Of course, that should include recreation, sport and physical activity in schools, on which, in a previous debate about this group, considerable emphasis was placed. I am sure that others will refer to it now.
The Select Committee pointed to the shocking fact that if current trends continue, half of all children in England could be obese by 2020. Future generations could die before their parents. Quite apart from the physical and psychological suffering that is caused to each individual, the financial cost to the economy—particularly the NHS—of the many illnesses that are caused by this condition make preventive action imperative.
Therefore, hardly surprisingly, that Select Committee called on the Government to adopt a health education campaign to be dedicated exclusively to tackling obesity. Obesity is one of the most easily recognised and visible forms of poor nutrition. But if we are to address that particular problem, we need to look at the diets of all children and not just those of children who are overweight or termed obese.
In the spirit of this Bill, and rightly so, there is a need for the Children's Commissioner and others involved with children to ensure that the views of children are heard and incorporated into the development of any future campaign. In that context, it is encouraging to see from a recent FSA study that 14 to 16 year-old children have a broad sense of the key constituents of a healthy diet. But, alas, they do not critically assess their own diet against those criteria. Clearly, there is a need for more educative work to be done here.
The debate about whether food and drink advertising should be banned from children's programmes has yet to be resolved. Meanwhile, with more and more of the population consuming ready-made meals, it is horrifying that, as a Which? report entitled Recipe for Disaster tells us, we are apparently consuming up to three times as much fat and nine times as much salt depending on the make of pizza, chicken tikka masala or steak and kidney pie that we buy.
In her reply in Committee, the Minister gave several examples of welcome government action in support of a healthy and nutritious children's diet, including the important role that schools in less affluent areas could play in providing breakfast for pupils. But the question about what to do about school vending machines still largely hangs in the air. Like food advertising in children's programmes, the indication is that that is to be addressed by guidance and self-regulation.
The Health Select Committee's view was that the food and drink industry had some three years in which to put its own house in order before legislation was inevitable. Should we not be asking whether the time has come right now for stronger action?
I hope that the return of this amendment will give the Minister an opportunity to expand on what action the Government intend to take in response to the report of the Health Select Committee, in particular as it affects the priority role of the Children's Commissioner, as well as what further action local authorities might be expected to take. It is clear that we have to do far more to ensure that there is at least some hope of a healthy beginning to our children's lives.
For example, it would be helpful to hear from the Minister, among other things, whether and how the Government intend to ensure that the views of the Children's Commissioner are included in forthcoming government policy initiatives on food and health, as well as on the involvement of local authorities.
I want to ask one other question. Is it intended that the Children's Commissioner should also be involved in initiatives such as follow-up on the forthcoming White Paper on healthy living, and the reviews and work programmes of both the Food Standards Agency and Ofcom? I beg to move.
Lord Northbourne: My Lords, I rise briefly to support my noble friend—I beg the pardon of the noble Lord; I shall give way.
Lord Pendry: My Lords, I am sure that all noble Lords have their minds set on the passage of this Bill, but equally I am sure that many will be wondering what is happening to the England side playing in Portugal. I can tell noble Lords that we are now one up against Switzerland.
Other amendments in this grouping relate to the outcome of education and training. They were to be headed by Amendment No. 9, but that was swallowed up earlier. However, Amendments Nos. 36 and 80 are still essential if we are to define children's well-being in the Bill. The noble Lord, Lord Rix, had intended to speak in support of these amendments, but he has informed me that this debate clashes with another commitment involving one of his many charitable works. He wishes the amendments well, but he cannot be here today.
As I and other noble Lords on all sides of the House have argued since Second Reading, the existence of opportunities for children to enjoy their free time cannot be taken for granted. The concept of the outcome of enjoyment as being essential to a child's

975
well-being, which was made prominent in the Green Paper, has been lost in the Bill as it stands. These amendments seek to recognise that the enjoyment of freely chosen free-time activities—recreation—are essential to a child's healthy development and well-being. I believe that children's services and the Children's Commissioner should be concerned about the provision of opportunities for children to enjoy their recreation time as an essential element in safeguarding and improving that well-being.
A vital part of that includes safeguarding opportunities for children's play in the widest possible sense: staffed and unstaffed play provision, unstructured play as well as more structured activities; and opportunities for children to play independently, to explore and find adventure in their local environments. The proposed term "recreation" encompasses all this and more, and yet warrants some further clarification.
Successive governments have recognised sport and the arts as essential aspects of recreation for children, with accompanying programmes and strategies to deliver them. But no such recognition has hitherto existed for play. In Committee we heard from noble Lords on all sides about the importance of play for play's sake. Yet the importance of play to children has not always been evident in government thinking and guidance. In my view this is a serious oversight, and the result is that local play provision is often a low priority and is vulnerable to cuts in funding.
Without sufficient provision for play, children's opportunities for enjoyment become restricted. As I and others have argued—although I shall not go into the details again today—play is far too important an issue in the development of happy and healthy children to suffer such neglect.
5.45 p.m.
I therefore seek assurances from the Minister that if these amendments are supported by her today the meaning of children's play, in its widest sense, will be encompassed within their terms. In other words, I hope that she will state clearly that the Government recognise play as the main form of recreational activity for most children and that this will, at the very least, be explicit in the definition of "recreation" in all guidance and documentation associated with outcomes for children in the new Children Act.
I hope the Minister will be able to give that assurance. The whole House is indebted to her for listening to the case that I and others have placed before her, and for her understanding on this issue at Second Reading. As I make these comments about the Minister, she trips out of the Chamber. She is certainly the pin-up girl of the House today.
I wish to have that assurance because it will be vital in interpreting the Bill as envisaged in the Green Paper. I believe that it will adequately reinstate the outcome
976
of enjoyment and achievement into the legislation, responding to children's and young people's requests that they should be able to enjoy their childhoods.
Baroness Byford: My Lords, I support the amendment. I am glad that the noble Lord, Lord Pendry, has been able to speak to his amendment. At one stage I thought we were going to lose it altogether. I apologise to him that my name has not been added to his amendment. My name was attached to Amendment No. 9, which was lost earlier because the other amendment was carried.
I strongly support his amendment. I shall not repeat what I said at Second Reading. Play is a hugely important part of a child's development. Whether they live within a family or live in care, every child needs the opportunity to learn to play, whether through informal sport or formal sport, which I used to teach. To a certain extent, the noble Lord's amendment sits very well with the amendment moved by the noble Baroness, Lady Howe, because nutrition and health go hand in hand. I am happy to support both amendments.
I apologise to the noble Lord, Lord Pendry. I tried to contact his office but there has been a slight misunderstanding. My name is attached to the earlier amendment but is missing from this one. I support both amendments.
Lord Northbourne: My Lords, I support the amendment of my noble friend Lady Howe. The two amendments go very well together. What I was going to say originally and wish to say now is that it is no good telling children what is good for them; you have to make it fun and you have to convince them that it is delicious. Equally, recreation is a wonderful way to sell all kinds of different learning and experiences to children. I support the amendment of the noble Lord, Lord Pendry.
Baroness Finlay of Llandaff: My Lords, I wish to speak briefly to the amendments to which I have added my name. Amendment No. 81 has been moved into this group for the convenience of timing and because it is the relevant place for it to be.
My noble friend Lady Howe has said almost everything there is to say about the importance of nutrition in children's well-being. I should like to add that obesity per se does not mean that the child is over nourished; the child may be malnourished. There are some very obese children with severe deficiencies of trace elements, iron deficiency and so on. Hence the term "nutritious diet". I fully recognise the Government's concern not to have long lists on the face of the Bill, but there is a huge issue in the nation at the moment in regard to diet and the use and abuse of ingested substances in the name of food.
The importance of play is beyond doubt. These are very important amendments. I will be happy to withdraw Amendment No. 81 if the Minister can reassure me that the term "recreation" completely covers play and will therefore allow the National Assembly for Wales to implement its play policy and

977
use the term "play" in secondary legislation when the word "play" is not mentioned on the face of the primary legislation. It is a legal technicality. If the Minister can give me that reassurance, the word "play" would be redundant because it is subsumed within the activity of recreation.
Baroness Sharp of Guildford: My Lords, my name is attached to Amendment No. 36. However, my name did not get attached to some of the earlier amendments, which have been lost in any event.
We spoke on this issue in Committee, and I supported the amendment. It is, as we discussed then, vital to children's mental, physical and academic development to be able to explore the world through play as well as through other more formal procedures. I take it that "recreation" encapsulates the important informal elements of play as well as the more formal ones, and the enjoyment of life that comes from play.
While I have some reservations about the inclusion of the phrase "nutritious diet" in the Bill, I very much endorse what has been said by the noble Baronesses, Lady Howe and Lady Finlay, about the importance of diet in child development and in the understanding of how to bring up children. We support both the amendments.
Baroness Howarth of Breckland: My Lords, I had not intended to speak on this issue, but I wanted to emphasise one particular aspect. The list comes under the area of co-operation in well-being. I am not often keen to add to lists, but the work done between the Department for Education and Skills and the Food Standards Agency on school meals—I declare an interest as an FSA board member—is very revealing. What has emerged from the debate is clear: one cannot have one without the other. Children can have two hours' play at school, which is recreation—exercise, at the end of the day—but what they eat there is quite horrifying. They may have a choice but they regularly choose chips, nuggets and hamburgers. I saw a piece of research recently in a school, where photographs were taken of children and the meals they ate—there was not a green in sight.
If the Bill contained provisions about food, exercise and fun, it would reflect the way children see life, and we might be able to do something about widening the co-operation which we have already demonstrated has taken place between some departments. The co-operation we have sought with some other departments has not been as easily achieved as that with the Department for Education and Skills. It needs to be clear that unless we work together, our children's health will deteriorate, they will have less exercise and they will die at an earlier age than previous generations.
The Lord Bishop of Oxford: My Lords, I spoke in Committee in favour of including "play". I would like to see "play" in the Bill, but I would support "recreation", for reasons about which we all agree.
978
I also support the amendment in the name of the noble Baroness, Lady Howe, about the need for a nutritious diet. Of course we do not want to make lists longer, but including something in legislation has a very powerful educational effect in the country. In the same way that it took many years to wake up to the dangers of smoking, we are only just beginning to wake up to the dangers of obesity. The Government can play a real part in this educational programme by ensuring that this requirement is in the Bill.
Baroness Andrews: My Lords, I am grateful to noble Lords who have spoken in this short and enjoyable debate. I agree with the noble Baroness, Lady Byford, and other noble Lords that there is a close relationship between the two sets of amendments. It is sad that I have to accept one while not accepting the other. I hope I do it with good grace.
I shall start with the amendment tabled by the noble Baroness, Lady Howe. I thought she spoke very powerfully about the significance of her amendment on a nutritional diet. It is sounds rather bleak to say that we are sympathetic but think that it is unnecessary to include the need for a nutritional diet in the Bill. It is not just a matter of lists. The first outcome that we originally had in Clause 2 referred to physical and mental health. That obviously encompasses nutritional requirements. We think that it is very clear that when we are talking about physical and mental health we are obviously talking about the way children thrive and flourish. To do that they need a good diet for good health.
The noble Baroness invited me to say a little about the Government's policies on obesity. I shall not spend too much time on the subject. She will know that our focus is on coherence, prevention and increasing physical activity levels. We are waiting with great interest for the outcome of the public consultation on Choosing Health?, in which young people have responded quite significantly. That is good news. We shall be looking very seriously at how best to respond to the Select Committee report, which is extremely powerful in its analysis. There are various consultations going on that will feed into the public health White Paper. Our response to the Select Committee report will be published at the same time as the White Paper and will tie in with it. We will reinforce and extend that coherence. That will be published later this year.
I should say that the Assembly recognises that a good diet is extremely important. Wales has traditionally not been an area of the UK where a healthy diet has been much in evidence. There is a national nutritional strategy for Wales, Food and Well Being, which was launched in February last year. It identifies children and young people as a priority group for action. There is a food and fitness health promotion grant scheme that provides financial support for community projects. Wales is addressing the issue in a very proactive way. I know my answer is

979
disappointing but, on the basis of those assurances, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Byford: My Lords, before the noble Baroness moves off that subject, will the Government be willing to think again? I was one of the people who took the Food Standards Bill through the House. There were two matters which we wanted to make sure were in the Bill. One was food labelling, which we did get into the Bill. The other was nutrition, which we did not. It is something that we bitterly regret. So I am sorry to interrupt but I thought it worth raising because there are so few opportunities to put nutrition into a Bill. Indeed, the noble Baroness, Lady Howarth, is a member of the Food Standards Agency and I know that it gives a greater direction to its thoughts. I know I should have mentioned this earlier. These opportunities come so rarely. It is a hugely important issue and I thought I should share it with noble Lords.
Baroness Andrews: My Lords, I understand why the noble Baroness has taken the opportunity but I am afraid that, for the reasons that I have mentioned, we have to stick with the broad definitions. We will make clear what they encompass in the guidance that we put out subsequent to the Bill.
I turn to the amendments concerning recreation, so persistently and ably pursued by my noble friend. I am not surprised that he has taken the opportunity to give us the latest score. I think that that was something we had all been waiting for. I am very grateful to have the opportunity to resolve the concerns raised in relation to play and recreation at different stages of the Bill. Amendments Nos. 36 and 80 are designed to include recreation within the aspect of well-being. In Committee, we agreed to go back and look at the need to ensure that play and recreation were reflected in the Bill and we have done so. Noble Lords have paid tribute to my noble friend, which I think is quite right.
We accept these amendments, which will cover England and Wales. We are completely at one in the importance that we attach to play as a developmental aspect of children's lives in terms of learning and enjoyment. It is extremely important that there are opportunities for informal as well as formal play. We are building that sort of opportunity into programmes such as SureStart.
6 p.m.
When we considered the way in which it could best be done and fully reflected, we looked at precedents such as Section 508 of the Education Act 1996, which made it clear that references to recreation cover the range of play-related activities. We recognise that recreation embraces play. That captures well-being and the important element of enjoyment that might otherwise be missing. Play will be a major element of recreation. We hope to ensure that that is understood. My noble friend and I would be very happy to be in the Ministry of Fun but, unfortunately, we cannot include fun on the face of the Bill. As I say, we value play for the sheer enjoyment that it brings. In Committee we
980
made clear that key parts of play are encompassed within the education and social elements of children's well-being. I hope that noble Lords are happy with that outcome.
As regards the question raised by my noble friend in relation to her Amendment No. 81, I assure her that the Assembly will be free to include play in secondary legislation. I hope that on that basis she will feel able to withdraw her amendment. I have no doubt that noble Lords will share our pleasure in accepting the amendment of my noble friend Lord Pendry.
Baroness Howe of Idlicote: My Lords, I thank the Minister very much for her comments. This has been an extremely stimulating debate. All the points that were made were extremely relevant. I particularly thank the noble Baroness, Lady Byford, for her suggestions. Nutrition is crucial, just as recreation is crucial. You need to see a measure on the face of the Bill to bring the matter home.
I should like to think that the Government will give us rather more comfort at Third Reading. In the mean time I thank noble Lords for their comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Pendry Lord Pendry moved Amendment No. 36:
Page 4, line 35, leave out "and training" and insert ", training and recreation"
Baroness Byford Baroness Byford moved Amendment No. 37:
Page 4, line 37, at end insert"—
( ) housing"
The noble Baroness said: My Lords, I can think of nothing worse than following a success and standing here trembling because I do not think that I am likely to score again.
In Committee the Minister declared that housing should not be specified as an outcome and relegated it to a function to be considered by agencies in co-operating with each other.
I refer again to the statement made by Adam Sampson of Shelter and his claim that poor quality housing is adversely affecting more than 1 million children. Quality may mean size; it may also mean state of repair; it may mean multiple occupancy. It may also mean design features such as poor insulation, lack of soundproofing or inadequate ventilation. I find it hard to agree that a problem of this size and complexity can or should be relegated to a minor matter in a long list of affairs over which the Government expect co-operation.
The number of homeless families in temporary accommodation has more than doubled since Labour came to power according to new figures released on 16 June by the Office of the Deputy Prime Minister. In 1997, there were more than 41,000 households in temporary accommodation. That figure has now risen to a horrendous 97,000. With that rising figure, and given the fact that there are more than 700,000 empty

981
homes in the United Kingdom, and 97,000 homeless families, I believe that the Government have not got their act together. Therefore, I am trying again with this amendment.
It will be difficult—the Minister may say that it is not possible—for the Government to accept the amendment, having fought so fiercely over some that have already been turned down, but I must again bring to noble Lords' attention the importance of housing in the well-being of children and families. Vulnerable children and young people are being put at risk of homelessness because social services and housing departments are not collaborating effectively, according to Shelter. The charity called on the Department for Education and Skills to amend the Bill so that housing departments were included in all information-sharing arrangements. It is said that disputes and new duties are being laid down under the Homelessness Act 2002. Joint working between the two departments and health authorities continues to be fragmented. If it is fragmented now when they know that they should work together, that only adds to the thrust behind the amendment.
The Bill sets out new arrangements for children's services, but fails to identify the effects that housing can have on children's lives. For instance, many homeless families fail to access basic healthcare as they move from one grotty place to another. At an earlier stage, the Minister said that local housing and district councils were included, which was one reason why my amendment was turned down. She said,
"we expect housing decisions to be looked at in the context of wellbeing".—[Offictal Report, 6/5/04; col. 1233.]
She pointed out that district councils were included in Clause 6(3)(a), which I accept. However, I am still concerned that, with the pressures placed on local authorities, the housing needs may be less considered in the overall well-being of the child.
It is very difficult to keep arguing that that should be specified. In Committee, we highlighted the fact that, once one starts on a list, it is difficult to know when to stop. I therefore accept the Minister's slight dilemma. However, I feel extremely strongly about the issue. Many of the families who find themselves homeless know only too well the difficulty of providing for a child's well-being. I redoubled my efforts when I saw the figures announced on 16 June, with that huge rise in the number of homeless households in temporary accommodation. I beg to move.
Baroness Walmsley: My Lords, I added my name to the amendment because, when I was a teacher, it became very clear to me that few issues had more effect on a child's life chances than its housing status. If the child is homeless and in bed-and-breakfast accommodation, there is enormous instability. There is very often overcrowding and a lot of noise, and it is not the most healthy environment for children. It is certainly not conducive to them doing their homework and having a peaceful environment in which to consolidate their learning at school when they get
982
home. Even if children live in a normal stable home, its being damp or overcrowded affects their health tremendously, which affects their education.
I shall move on to the information-sharing part of the Bill. We are considering what happens to children when they move from one authority to another, and how to ensure that vulnerable children are attached to the services that they need. It strikes me that the housing department is the one department of a local authority that is bound to come into contact with a child moving into its area. The family will look for council housing or housing benefit, or pay council tax if they own a home. One way or another, the housing department of local government will have some contact with the children.
For all those reasons it is important that the duty to co-operate extends to the issue of housing and those people responsible for housing in relation to children. I support the noble Baroness, Lady Byford, in her attempt to insert housing into the Bill.
Lord Northbourne: My Lords, I, too, support the amendment. However, it is not broad enough. My amendment relating to the environment in which children have to live would include housing. While I do not wish to have an argument about the exact wording of the amendment, it would be right to sit down and take to pieces the five objectives in Clause 6(2) to try to make them more in line with what is really in the best interests and needs of children.
Baroness Howe of Idlicote: My Lords, I very much support the amendment. I was particularly impressed, at the same gathering that the noble Baroness, Lady Walmsley, attended yesterday evening, with the children themselves and the messages that spread around the reception area about what they wanted out of life. One loud and clear message was their wish for a decent and safe home, because we were talking about domestic violence. All of those children had been affected and had suffered a great deal. However, the wish for a decent home and one in which they could feel happy, secure and do the things that they wanted to, was strong on their list.
Baroness Andrews: My Lords, nothing divides us at all regarding the importance of housing as an aspect of equality in children's lives—and everything that they do, from achieving at school to maintaining good family relationships. I understand the concerns that are reflected in the amendment and the noble Baroness, Lady Byford, spoke passionately about her concerns over the potential lack of co-operation within and between local authorities. I also recognise that there is a need to involve housing associations, for example, that are discharging functions under contract from housing authorities. I am aware of concerns about the effectiveness of existing legislation that requires social landlords to co-operate with social services departments. So we are concerned to ensure that at every level the housing department is fully integrated with all the other services that deliver benefit for children and families.

983
We have several problems with the amendment. Adding housing to the broad outcomes is not the most effective way of addressing such concerns. The positive outcomes in Clause 6 define well-being for all children in the broadest sense and are what the children's services authority should be aspiring to achieve. There are many factors that contribute to those. Housing is one of those. Good quality housing is extremely important hut, in itself, is not an outcome within that definition. It is a means of achieving an outcome in relation, for example, to physical and mental health. The noble Baroness, Lady Walmsley, spoke clearly about her experience.
The second problem with the amendment is that we have made arrangements for that co-operation. I have to re-iterate what we said in Committee—it is why, regarding two-tier authorities in England, we have placed the district council under a reciprocal duty to co-operate in the arrangements under Clause 6. That encompasses all of their functions that impact on children's well-being, including housing.
I hope that the noble Baroness will take some comfort from the intention in Clauses 13 and 14 to issue statutory guidance on Clause 6 and on the lead member and director of children's services, so that local authorities must have regard in formulating polices and strategies. That guidance will make it crystal clear that co-operation applies not only to local authorities and their partners, but to departments within authorities, such as housing. The lead member and the director of children's services will have a key role in overseeing that internal co-operation—so we are trying to pin that down as best we can.
In Wales, all children's services authorities are unitary and, therefore, housing and other functions are within the same authority. But the Assembly also recognises the importance of housing in a child's life and the need to ensure that housing matters are included as a priority in the consideration of children's needs. That will be recognised in the preparation of Welsh guidance.
The noble Baroness drew our attention to homelessness and it is worth putting on record that in 2002 we set a target that by 2004 no homeless family with children should have to live in a bed and breakfast hotel, except in an emergency—and even then for no more than six weeks. On 4 May, we announced the final monitoring figures against this target, which showed a 99.3 per cent reduction.
6.15 p.m.
From 1 April, this target was reinforced by new legislation, which means that local authorities can no longer discharge their homelessness duties by placing families with children in B&B for longer than six weeks. The Government are also making significant investment in improving the quality of housing stock. By the end of this year, the number of non-decent homes will have been cut by 1 million. In Wales, the Assembly is also considering legislation to achieve this objective to provide additional support and set performance indicators in terms of housing.
I hope that the noble Baroness will accept the three points I have made: the first in relation to definition; the second on what is in the Bill; and the third in relation to statutory guidance. I hope that that will reassure her that her amendments are taken seriously but are not acceptable to the Government in that form.
Baroness Byford: My Lords, before the noble Baroness sits down, can she clarify a few issues? Is the statutory guidance in being and on the face of the Bill or will it be issued in due course? Secondly, I understood that recently the B&B figures have risen. Thirdly, if my figures are correct and the figure of 41,000 has risen to 97,000, how does that sit with the Minister's assertion that the figures are falling?
Baroness Andrews: My Lords, statutory guidance will be issued on Clause 6. That is the easy question to answer. Clearly, we have different figures. Our monitoring figures against the target showed a 99.3 per cent reduction, but I will take the noble Baroness's figures and write to her about the reconciliation between them.
Baroness Byford: My Lords, I am grateful to the Minister. It is always difficult at the Report stage because we are not allowed to come back and the Minister would not have been able to respond. I am grateful to all noble Lords who supported the amendment, but I am slightly disappointed in the response. I accept that statutory guidance will be issued later. I accept the invitation of the noble Lord, Lord Northbourne, to discuss the matter at length before the next stage. However, having listened to what has been said, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Walmsley Baroness Walmsley moved Amendment No. 38:
Page 4, line 37, at end insert—
"( ) equality of opportunity"
The noble Baroness said: My Lords, this is the first of a group of amendments about equality of opportunity. They appear at various places in the Bill where we felt it appropriate.
While we obviously strongly welcome the commitment given by the Minister in Committee to use guidance to spell out that,
"all organisations involved in the co-operation arrangements in England must—I emphasise must—have regard to promoting equality of opportunity".—[Official Report, 20/5/04; col. 954.]
we feel that without a clear statutory basis such exhortations will have limited impact. In any case, this is of such importance that it should be enshrined on the face of legislation—at least somewhere in the Bill.
The inclusion of equality of opportunity in the list of core outcomes for children's services and partner agencies locally would be consistent with the positive equality duties set out in Article 2 of the UN Convention on the Rights of the Child and, indeed, the Government's avowed commitment to a new inclusive society and more equitable outcomes for children.
The Government have set great store by the fact that Every Child Matters was widely welcomed, but the Disability Rights Commission did not feel that the Green Paper gave sufficient weight to the particular disadvantage faced by disabled children and their families; to the fact that disability is a key factor affecting children's life chances; or that resolving the marked inequalities experienced by disabled children and young people was a specific issue around which services should coalesce. I am therefore anxious to ensure that the remit and accountabilities of new and existing institutions and agencies key to delivering the Government's new policies should include clear instructions to address and measure progress in the area of equality—and, in particular, disability equality.
The new arrangements for promoting children's interests and improved co-ordination of children's services and multi-agency working set out in the Bill could lead to major improvements in the social inclusion and life chances of disabled children and their families. Indeed, we all hope that they will. But to realise that potential, this important new legislation must take a firmer focus on tackling the specific discriminatory barriers that disabled children face and include a specific reference to promoting equality.
Current equality legislation does not provide comprehensive protection for disadvantaged children. Disabled children and children from black and minority ethnic communities—girls and boys—already enjoy some individual protection in access to local authority and other public services under equality legislation, but others do not. There is no equivalent protection on grounds of religion, refugee status, sexuality or family status. That penalises disabled children, as there is no mechanism for addressing multiple discrimination. Often a disabled child may be discriminated against, which may happen on the grounds of disability, religion, family status or a combination of all those things.
Public bodies under the Bill will now have positive duties. They already have duties to tackle racial discrimination. In the next few years, we should see similar duties on disability and, eventually, gender; but there are sadly no plans as yet to extend rights or positive protection on other grounds. Such is the vulnerability of children that they should benefit from proactive cross-cutting promotional equality duties, which should be put in the Bill.
I hope that the Minister looks kindly on the amendments. If she felt that she was able to accept only some of them, I suggest that the priority is with those to Clauses 6 and 20, which is probably the most appropriate place to put equality of opportunity in the Bill. However, all the amendments are appropriate if we want to emphasise the fact that equality of opportunity is an important issue, which all the
986
agencies that we are addressing should have at the front of their minds in operating children's services. I beg to move.
Baroness Byford: My Lords, I rise to support these amendments, to which our names are added. They are hugely important. Early in Committee we had long debates, especially about the position of disabled children. It is always very difficult to find ways in which one can ensure that people who are less able than others—in the widest sense, not only disabled—have equal opportunity to things that most of us take for granted. I spoke at length on that matter in Committee.
The noble Baroness, Lady Walmsley, rightly raised specific issues today, and I shall not repeat what she said. However, I am still worried by the evidence of how disabled children in particular have failed to date to be looked after adequately, when they are among the most vulnerable in our community. They warrant clear statutory provision in the Bill.
On disability and equality of training, the NSPCC and the national working group highlighted the need for children's protection training better to address the needs of disabled children so that professionals can track and identify abuse. Where disability equality training is provided to members of the local safeguarding children boards, how will that be rolled out across the child protection services and what is the Government's overarching strategy for implementing that recommendation? In Committee, the Minister promised Peers news on the plans for disability equality training for LSCB members, and we hope to hear more from her later.
The Minister knows—we spoke about it in Committee—that I attended a meeting with disabled children. Whereas we might have been too embarrassed to say openly that we realised that they had a disability and that they should be treated equally, the children said to us, "Yes, but we are disabled". That is one of the problems that we have. Therefore, I hope that, having changed the wording in the amendment, the Government will look at it more sympathetically, remembering the strong contributions that were made in Committee in relation to this matter. We hope that the amendment is now wide enough to cover everyone who should have equality of opportunity, which most of us assume is our right.
Baroness Howe of Idlicote: My Lords, I shall speak very briefly. My name was not added to these amendments but I am totally in favour of them. The Disability Rights Commission has made it clear that the evidence relating to how disabled children have been failed to date is so strong as to warrant clear statutory provision. The continuing evidence that one sees over time certainly supports that. We may have moved some way from the BBC programme, "Does He Take Sugar?" but there is still a long way to go. Therefore, I hope that the amendment will find favour.

987
To my mind—I follow the noble Baroness, Lady Walmsley, on this point—if there was only one reference to a clear duty in relation to all aspects of the various tasks that the Children Bill is addressing, that might at least satisfy many people.
Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords who have spoken with great understanding and great passion about the issues involved here. Perhaps I may go through the amendments briefly in order to explain our position.
As noble Lords have indicated, Amendments Nos. 46, 53, 88 and 91 deal with safeguarding. As noble Lords know, in these clauses we have been focusing on the safeguarding of children. That is not to say that it is not possible to identify groups of children who might be at greater risk of harm and to work with them to good preventive effect. But our primary aim here is to ensure that, in the day-to-day work that takes place, those working with children identify potential problems and act on them. That is a clear and distinct purpose.
Clauses 6 and 20, to which Amendments Nos. 38 and 83 relate, in many ways concern the equality of opportunity. We want local services to work together to improve the well-being of all children in their area—and I mean "all" children. However, I do not think that it is necessarily right to amend the list of outcomes as suggested. Equality of opportunity is not an outcome in itself or a definition of well-being; it is something that we must strive for in seeking to improve the outcomes for children.
That means that, inevitably, we must provide different, and more, support and different levels of support or, indeed, different kinds of support—the issue to which the noble Baroness, Lady Byford, referred in talking about the needs of children with disabilities. We must recognise them as equal, recognise that their needs are different and ensure that we do that well.
Therefore, helping families and children to be well equipped for the issues that they face must also be about dealing with any inequalities that they face. These are issues that partners must look to in reaching their decisions under the arrangements in Clauses 6 and 20. But they should do so on the understanding that the elements of well-being that we are seeking to establish are universal aspirations that we should have for all children and all young people, whatever their background or circumstances.
I also recognise that the most disadvantaged children are often the hardest for mainstream services to support, and therefore there is a greater risk that they will be sidelined. We need to ensure that the levers we intend to use to secure change, all the performance indicators, inspection, intervention and so forth—better training is a critical part of that—deliver for them. The Government are committed to ensuring that.
As noble Lords will realise, I am not terribly drawn to putting this in the Bill. However, whenever someone says two things, "Somewhere in the Bill" and "Once",
988
my ears prick up because I am mindful of the spread of support for this. Although that is not representative in numbers this evening, it is certainly representative in quality. I would ask that I might perhaps have one more look at Clause 6, which I think is where the noble Baroness, Lady Walmsley, indicated, on the basis that I have listened to the words "Somewhere in the Bill" and "Only once".
Whatever I do, I hope noble Lords will understand that there is nothing in anything I have said or anything we are trying to do which detracts from equality of opportunity. We understand that we cannot support all children unless we recognise that some children and families begin with huge disadvantages. It must be for services to focus their attention on ensuring that they support them effectively. Nothing I have said detracts from that, but I shall have one more look.
Baroness Walmsley: My Lords, I am grateful to the Minister for promising to have one more look. I accept that we cannot always ensure that all children come out equal but we can at least give them an equal opportunity to get there. That is what I think we should seek to do.
I mentioned Clause 6 but I would point out that Clause 20 is the Welsh equivalent, so one would really have to do both. I wait with bated breath to see whether the Minister is able to accept the amendment. It would be significant if she did and widely welcomed by all the groups which care for children with disabilities, in particular, but all kinds of disadvantaged groups would be most grateful for this kind of improvement to the Bill. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland moved Amendment No. 39:
Page 4, line 37, at end insert—
"( ) 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."
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 40:
Page 5, line 2, at end insert—
"( ) a youth offending team for an area any part of which falls within the area of the authority;"
The noble Baroness said: My Lords, in moving Amendment No. 40 I shall speak also to Amendment No. 51 and the Welsh equivalents, Amendments Nos. 85 and 90. Those amendments relate to the inclusion of youth offending teams in the duty to co-operate to improve the well-being of children and as members of local safeguarding children boards.
Noble Lords who took part in discussions in Committee will recall that the noble Baronesses, Lady Walmsley and Lady Sharp, tabled an amendment that sought to name the youth offending

989
team as part of children's services. The noble Earl, Lord Howe, and the noble Baroness, Lady Byford, tabled a similar amendment that would include a youth offending team among the relevant partners under a reciprocal duty to co-operate in the arrangements made by the children's services authority. The same noble Lords also tabled similar amendments to include youth offending teams in local safeguarding children boards.
I made it clear in Committee that it has always been our intention that youth offending teams would have a role in local co-operation arrangements and local safeguarding children boards. I agreed that we would give further thought to whether the original drafting achieved that adequately.
Having done so, I now propose amendments which will name youth offending teams as relevant partners under the duty to co-operate and as board members of the local safeguarding children boards. Amendments Nos. 40 and 85 will place a statutory duty on youth offending teams to co-operate in the arrangements made by the children's services authority under Clause 6 in England and Clause 20 in Wales. Amendments Nos. 51 and 90 will include the youth offending team in the list of board partners of children's services authorities, who will be members of the local safeguarding children board under Clause 9 in England and Clause 24 in Wales.
The amendments are the best way to secure the involvement of youth offending teams in local co-operation arrangements and local safeguarding children boards. With thanks to noble Lords who brought this to my attention, I beg to move.
Baroness Sharp of Guildford: My Lords, I thank the Minister for the amendments. They more or less entirely meet the point we were trying to make when we moved the amendments in Committee. I am glad that she is able to table amendments that are not only in relation to local co-operation but also to the local safeguarding teams. It is important that they are included. It is an excellent outcome for that reason.
Earl Howe: My Lords, I too add a brief word of thanks to the Minister for listening so carefully to the concerns we raised in Committee. The amendments are extremely good news not just in this Chamber but I am sure outside as well.
Baroness Walmsley Baroness Walmsley moved Amendment No. 40A:
Page 5, line 7, at end insert—
"( ) the Immigration and Nationality Directorate"
The noble Baroness said: My Lords, particularly in the light of the Government's plans in Clause 8 to improve the sharing of information, and in view of cases such as that of Victoria Climbié, it would seem essential to give the duty to co-operate to improve well-being to the Immigration and Nationality Directorate. That is why I move Amendment No. 40A.
The Immigration and Nationality Directorate is usually the first to know about a new child coming into the country who may be vulnerable. So it really should be included in the duty to co-operate in Clause 6.
On Amendment No. 43, the critical services responsible for the welfare and support of refugee children and their families are excluded from the exhaustive list of those to whom the new duty applies in Clause 7. I ask the noble Baroness—I know she has an aversion to lists—to add them to that list. I perhaps helped her earlier today by removing a list from the Bill, so there is some room to put a few more people in.
Seriously, we believe that this is contrary to the Government's intentions as set out in Every Child Matters and ministerial commitments given in Committee that its wording includes all children. The Minister has repeated that again today. She used the words "all children". In Committee, she said:
"noble Lords can rest assured that the wording of the Bill covers all children. There are no exceptions; noble Lords would not wish it otherwise, and neither would I".—[Official Report, 4/5/04; col. 1086.]
The Joint Committee on Human Rights has also recently criticised the exclusion of refugee agencies from Clauses 6, 7 and 9. It stated:
"the omission of this particular group of children from the institutional arrangements designed to fulfil the State's positive obligations to children and Articles 2, 3 and 8 [of the Convention] raises the question of whether this gives rise to unjustifiable discrimination in the enjoyment of Convention rights".
The amendments I have tabled would rectify those omissions.
The Refugee Children's Consortium wholeheartedly agrees with the principle behind the agenda of Every Child Matters of an agreed set of outcomes and standards for all children. Refugee children are children first and foremost and should be afforded the same rights and protection as any other children in the UK. The agencies responsible for providing support and accommodation to refugee children, for their care while being detained with their families and for making critical decisions about their entry to the country, should be included in the new duties and arrangements in Clause 7.
This amendment was tabled in Committee and we return to it today. The amendments were resisted by the noble Baroness, Lady Ashton. She stated:
"The amendments go much further than our obligations under the UN Convention on the Rights of the Child and could be exploited".—[Official Report, 20/5/04; col. 976.]
I understand the Government's fear about this, but it is clearly a reference to the UK's wide-ranging reservation to the UN Convention on the Rights of the Child on all matters relating to immigration and nationality, including the treatment of refugee children, which is Article 22.
The reservation is essentially an opt-out clause in respect of immigration and nationality and has been severely criticised for being incompatible with the object and purpose of the UNCRC, most recently by the UN Committee on the Rights of the Child and the JCHR. It is alarming that the Government feel that the duty in Clause 7 would extend further than their obligations under the UNCRC, particularly given the

991
fact that the Government have repeatedly argued that the purpose of the reservation is not to deny refugee children their rights, but that it is needed for an effective immigration system. I hope that the Minister can explain how and why the provisions in Clause 7 would be too onerous for refugee agencies, and how she considers that the excluded institutions responsible for refugee children would not be able to meet the duties under the clause.
Concerns about the treatment of children in Prison Service establishments have led to their inclusion under the new duty in Clause 7. Many parallels can be drawn between conditions for children detained under immigration law and those detained under criminal law. Similar concerns have been raised about the treatment of children in immigration detention centres and those in Prison Service establishments. Can the Minister explain why, if the Government consider it appropriate to detain children, and the care for children in detention is of a high quality, those responsible for their care should not fall under this duty? How can the Government distinguish between the imposition of the duty on prison governors and its imposition on detention centre managers?
The Minister argued in Committee that measures had been put in place to improve the situation, including the toolkit and training for immigration officers. Those measures are welcome but they are no substitute for the inclusion of this essential service in the new duty, particularly given the necessity, as outlined in the toolkit, for a multi-agency response to trafficking. It is certainly no argument against its inclusion.
It is hard to recognise the Government's assertion that the Bill's provisions extend to all children and the Every Child Matters agenda with the exclusion of key refugee agencies responsible for the care of refugee children from the important duty in Clause 7. That is particularly so when we consider the vulnerabilities of refugee children and the significant criticisms made of the institutions responsible for their care.
The last amendment in the group was also tabled in Committee. In response, the Minister stated that she did not think it necessary that the Immigration Service or NASS be required to be on the safeguarding children boards, but gave an assurance that:
"Both NASS and the Immigration Service recognise the importance of local safeguarding children boards and will be fully involved in the boards where appropriate".—[Official Report, 24/5/04; col. 1168.]
However, no such assurance was given about whether there would be a similar expectation regarding immigration removal centres. Can the Minister confirm whether there would be such an expectation? I beg to move.
Earl Howe: My Lords, I wholeheartedly endorse everything that the noble Baroness has said on this important issue. Without going over the same territory at length, it seems that there are key points to emphasise.
992
The first is the comment made by the Joint Committee on Human Rights that the exclusion of refugee agencies from this part of the Bill raises the question of whether there is unjustifiable discrimination in the enjoyment of convention rights. It is true that this is not a categoric condemnation by the Joint Committee, but I suggest that it puts the onus on the Government to demonstrate exactly why they think that the omission of these agencies from the Bill is human rights compliant. As the noble Baroness said, if prison governors are within the scope of the duty, it is difficult to argue that detention centre managers should not be.
The second point is practical. Why do Ministers appear to think that the provisions in Clause 7 would be too burdensome for refugee agencies? The current wording does not impose a particularly burdensome duty; it is simply a duty to have regard to the need to safeguard children and promote their welfare. Why should the Immigration Service and the NASS be exempt from such an obligation, when, by the nature of their work, they clearly have a key role in safeguarding children?
I said in Committee that, when we consider the deficit in the delivery of these essential services to such very vulnerable children, we should not speak, as the Minister did, of the situation being exploited by such people. I feel that the Government have not defended their position very convincingly; I doubt whether they can. We await their response.
Lord Hylton: My Lords, I suggest that we need all three amendments in the group, Amendments Nos. 40A, 43 and 52. They are interrelated and mutually reinforcing. The noble Baroness has already shown today that she is in a very responsive mood and I hope that she can go further than she was able to do in Committee. After all, the Green Paper and the document, Every Child Matters, showed clearly that the Government want to protect and benefit all children. The noble Baroness said in Committee that the wording of the Bill covers all children. She even said that there are no exceptions.
This evening, she said again that all children should be embraced by the effects of the Bill. Previous speakers have, properly, mentioned the Joint Committee on Human Rights and the UN Convention on the Rights of the Child. I would just like to add to that list the Chief Inspector of Prisons in relation to immigration removal centres. We already know from reports received that provision for the care and welfare of children in those centres is not of a very high standard—contrary to what was claimed by the noble Lord, Lord Bassam, when speaking for the Home Office on the parallel Asylum and Immigration (Treatment of Claimants, etc.) Bill.
So I am bound to agree with the Refugee Children's Consortium when it points out the discrepancy between the Bill as it stands and the particular vulnerability of refugee children—and, I would add, trafficked or potentially trafficked children. That is why I support the amendments and urge the Government to be as sympathetic as they possibly can.
6.45 p.m.
Earl Russell: My Lords, I am most grateful to my noble friend Lady Walmsley for her speech. It is not often that I hear things on the subject of refugees that I find totally fresh and lucid and that put the whole argument in a totally new light. I have found that today. That was an unusual experience—I will say no more.
Those of us who were in the House last Tuesday afternoon will have listened to the noble Lord, Lord Rooker, manfully struggling to put forward government policy and explaining that one could not make things too nice for refugees because that might increase the pull factor that brings them to the United Kingdom. The whole background to that thinking is contained in Jack Straw's White Paper of 1999. I think that the reference is to paragraph 8.19, but I would not like to answer to that from memory, where it is argued that conditions must be made reasonably unpleasant so that people shall not be attracted to come here because the conditions are too nice. In fact, that is an invitation to other powers to conduct a Dutch auction.
I will not trouble the House with the reasons why I think that that is totally impractical and why I think that such choice does not normally exist. But I will trouble the House with the reasons why I think that that is particularly relevant to children. If families have made the decision to come here, it is in the highest degree unlikely that that is the choice of the child. Even in the case of unaccompanied children, that is still in the highest degree unlikely. It will be either on parental advice, or if they have escaped on their own after the massacre of their family—as has often been the case—it will simply be a matter of where the next flight is going to. Attempting to deter children by making conditions unpleasant, or less than totally pleasant for that purpose alone serves no useful purpose whatever. As a Dutch auction, it invites responses about which I do not particularly want to think.
This was a stupid policy in the first place, and this is one of its most stupid effects. The department has its own degree of autonomy. It is capable of resisting the spread of the Home Office in setting up secret cells within its own walls. The Department for Education is perfectly capable of conducting its own policy, and it would do it a great deal better.
Baroness Howe of Idlicote: My Lords, I say extremely briefly that having listened to everything that has been said, but also having been impressed by the briefing that one has been sent, particularly by the Refugee Children's Consortium, I have no hesitation in supporting all three amendments. As we have heard from the noble Lord, they are certainly inter-related and connected. As has been well outlined, the whole business of being in detention as a child with few facilities, nowhere to go, nowhere to play, in detention, and frightened, having come from another culture and another country, all adds up to the fact that they should first and foremost be treated as children.
994
Therefore, they should come under the responsibilities of those who will be given new responsibilities under this Bill.
Baroness Howarth of Breckland: My Lords, in the mid-1980s, I found myself working in bed and breakfast hotels where there were hundreds of homeless families. The attitude towards those families at that time was that because they were undeserving, and they had got themselves into these difficulties, they had to be where they were, despite the fact that most of these places were rat-infested, had insecure doors and were lice-ridden. Children were at risk, because there were abusers in the same hotels.
The attitude is now the same for these refugee children. We heard earlier how the Government's attitude had changed in relation to families in bed and breakfasts, and that families with children were no longer to be placed in bed and breakfasts. A new and enlightened view has been taken by this Government. I would hope that they would take the same enlightened view about refugee children, although I fear that the Minister may find herself in a difficult position in the context, as we heard from the noble Earl, Lord Russell, of the wider political agenda.
However, what I said about homeless families, I now say about refugee families. Even if I believed, and I do not, that their parents deserve to be where they are; and even if I believed, and I do not, that those parents got themselves into those difficulties on their own, those children had no responsibility whatever.
Therefore, we who have spoken so widely—and I listened to my colleagues' erudite speeches about the rights and needs of children—are now saying that there is one category of children for whom we will not take the same responsibility. If we cannot do it today, I hope that we will battle on, as we did with homeless families in bed and breakfasts, to make sure that all children have equal opportunity, as the noble Baroness, Lady Walmsley, said, and that we can dispose of what is an absolutely appalling position for some of these refugee children.
Baroness Ashton of Upholland: My Lords, as always, it is true to say that I have listened with great interest to noble Lords, who feel passionately about these issues. As the noble Lord, Lord Hylton, said, I have been very responsive where I can. It is important to make the Government's position clear regarding each of these issues, which I shall set out as succinctly as I can. In doing that, perhaps I shall be able to deal with some of the issues that have been raised. Of course, I will reflect on all that has been said.
Although the amendments are grouped, I think of them separately and in three distinct ways. My response is different to each amendment, so it is important to turn to them separately. Amendment No. 40A is about the relevance of the Immigration and Nationality Directorate as a partner to the children's services authority in making arrangements to promote co-operation.

995
Noble Lords have made clear, and I appreciate, that the Immigration Service and the National Asylum Support Service play very important roles in certain areas of the country and their work will impact on services for children within the local area. But the arrangements that we have put in place under Clause 6 have been designed with the intention of ensuring that bodies with responsibility for strategic decision-making and commissioning services at local area level are covered.
The Immigration and Nationality Directorate has a much wider national focus; indeed, there are some local areas where it has no presence at all. To include it would not only be inconsistent with the design of the co-operation arrangements, but would also confuse its focus. However, I recognise that in some areas the activities of the Immigration Service, NASS and others will be major influences on local decision-making. Where that is the case, there is nothing to prevent children's services authorities, where they and their partners think that it is right and proper, including those bodies in their co-operation arrangements.
As noble Lords know well, immigration impacts on different localities in different ways. I would therefore argue that that must be a matter for local discretion. Previously, in connection with the Clause 6 co-operation arrangements, I said that we want to give partners the flexibility to make arrangements that reflect and meet local needs in the best possible way. We will make clear in the guidance covering the co-operation arrangements that the Immigration Service, NASS and other IND bodies should be involved where they have a major impact on local decision-making.
I hope that that addresses the point without making it universal, which we think would be inappropriate for the reasons that I have given about the make-up of different communities. With that new assurance, I hope that noble Lords will be able to reflect on the matter and come back to me to seek greater clarification. But the guidance will be clear, which will help in those cases.
Amendment No. 43 seeks to impose the Clause 7 duty to have regard to the need to safeguard children and promote their welfare in exercising the normal functions of agencies and individuals; namely, regional offices of the National Asylum Support Service, the centre manager of an immigration removal centre and the chief immigration officer at the port of entry.
This amendment came up in Committee. Noble Lords have referred to some of what I said then. 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.
The Immigration and Nationality Directorate carries out an essential task in providing immigration control for the United Kingdom and in ensuring what would be described as a tightly managed asylum system. It is probably unavoidable that in performing that task IND may do things that would be judged
996
inconsistent with a duty to have regard to the need to safeguard and promote the welfare of children. I know that noble Lords find it difficult, but I said in Committee, and I repeat now, that that could be exploited in ways that the drafters of this amendment would not support by those seeking to abuse the system. We also have to be careful about what we expect individuals who often work in difficult circumstances to be able to do. It is very important that we are clear in the focus of the work that we expect people to undertake in those services.
Noble Lords know that the National Asylum Support Service does not support unaccompanied asylum seeker children who are supported by local authorities under the Children Act. Some children are directly referred to local authorities by the Immigration Service. Indeed, I have spent time talking to young people who are unaccompanied asylum seeker children about some of the work that is going on in Kent. In the main, that has been extremely good in dealing with a whole range of children who have very different needs.
NASS provides accommodation and cash support for families with children. In these functions, NASS acts in the same way as any other provider of accommodation or subsistence for families and seeks to respect the right of families to a private and family life. It plays a key role in ensuring an effective asylum system and we must ensure that, in everything we do, we do not undermine the system. It is important to recognise that were we to accept Amendment No. 43, we would be providing greater scope for challenge, thus possibly undermining that system.
In relation to the Immigration Service, again we fear that the amendment would provide another basis that could exploit the appellate and judicial review systems to argue that the detention of asylum seeking families is not compatible with safeguarding children or protecting their welfare. The Government's position is that it is an unfortunate but necessary element of our immigration control procedures.
However, noble Lords know that we do not detain unaccompanied children for any longer than overnight except in exceptional circumstances where there are concerns for the child's welfare. In the overwhelming majority of cases, those families with children who are detained have had their applications to remain in the UK refused and have removal directions in place. Children are therefore detained in these circumstances only for the shortest possible time. Moreover, we have introduced rigorous and enhanced arrangements and have put in place a system of regular ministerial authorisations for any detention of children beyond 28 days.
7 p.m.
On the question of the IND, I hope that noble Lords can agree 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. But that does not mean that we do not think

997
that these services have a role to play in safeguarding and promoting the welfare of children; rather we think that this Bill is not the right vehicle to ensure that. We believe that those working in these services take their responsibilities for children very seriously. Both NASS and the Immigration Service have well-established working relationships and arrangements with local authorities so that concerns are dealt with swiftly.
The noble Earl, Lord Howe, mentioned in Committee the results of the ECPAT report in terms of some of the measures that have been taken. I shall not repeat those because I dealt with them in Committee, but I shall be happy to do so at a later stage if noble Lords wish. We believe that Amendment No. 43 would compromise the ability of these services to maintain the system that we need in place.
I turn to Amendment No. 52. As the noble Baroness, Lady Walmsley, said, we dealt with this in detail in Committee when I said that these arrangements are well established and that they could link into the new boards. However, her specific question to me was whether that would apply to the centre manager of an immigration removal centre. The answer is yes, it would.
On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Walmsley: My Lords, I thank all noble Lords who have spoken in support of this group of amendments, and the Minister for her response. On Amendment No. 40A, I welcome the confirmation from the noble Baroness that the Immigration and Nationality Directorate can be brought in as a partner with a children's services authority and that this will be clearly outlined in guidance.
On Amendment No. 43, the noble Baroness said that our amendment would put duties on these organisations that would be incompatible with their other core functions. However, if they do things that are inconsistent with safeguarding children, my aim is to ensure that they do not. Putting this provision on the face of the Bill would stop them. I believe that the asylum system is more undermined by slow or poor decision-making than anything that this amendment would do. A strong and fair asylum system is not inconsistent with treating children humanely and I really cannot understand why a caring government could not find it in their heart to add these organisations to the list of those who have a duty to safeguard children.
On the last amendment in the group, I thank the Minister for confirming the answer to my question. However, many noble Lords feel very strongly about Amendment No. 43. After consultation with others, it is highly likely that we will bring it back at Third Reading. However, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 41:
Page 5, line 11, after "section" insert—
"(a) provide staff, goods, services, accommodation or other resources;
(b) "
The noble Baroness said: My Lords, in moving Amendment No. 41, I shall speak also to Amendments Nos. 54 and 55, and the Welsh equivalents, Amendments Nos. 86, 92 and 93. The amendments concern the ability of partners to make non-financial contributions in support of co-operation arrangements and the activities of local safeguarding children's boards.
In the amendments we respond to concerns expressed in Committee by, among others, the noble Earl, Lord Howe, and the noble Baronesses, Lady Walmsley, Lady Sharp and Lady Byford. Noble Lords rightly emphasised that the contributions partners can make to the exercise of functions under Clauses 6 and 9 need not only be financial. During the Committee stage I undertook to take the issue away and examine how we might make provision for this in the Bill.
As the Bill stands, it gives children's services authorities and any of their relevant partners the power to pool funds to support arrangements made under the duty to co-operate. As well as supporting co-operation arrangements through funding, however, it is clear that agencies can also provide non-financial resource to facilitate joint working—for example, accommodation in order to locate a multi-disciplinary team.
Amendments Nos. 41 and 86 are necessary to make it absolutely clear that partners can support their cooperation arrangements with contributions of non-financial resource. In doing so they can strengthen their commitment to the activities of the partnership. We need local partners to be aware that pooling their budgets as part of their co-operation arrangements can be complemented by providing non-pecuniary resource. This includes staff, goods, services, accommodation or other resources. Similarly, Amendments Nos. 54, 55, 92 and 93 will also clarify to local partners that they can make non-pecuniary contributions to the activities of their local safeguarding children board.
I am grateful to noble Lords for clarifying our thinking on this matter and I hope they will feel able to support the amendments. I beg to move.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for bringing forward the amendments. They answer the question that we posed in Committee when we raised these issues. Quite clearly, voluntary and other agencies can contribute in kind rather than always in cash. This is a significant recognition of the role of the voluntary and

999
community sectors in relation to the provision of children's services. I thank the Minister for her response.
Earl Howe: My Lords, as the noble Baroness said, we tabled a similar amendment in Committee. I am grateful to the Minister for listening to the points that we put to the Government.
It is an encouragement to a voluntary organisation if it feels that it is fully in a partnership and can contribute in a material way, regardless of whether it is in money or in kind. I fit is in kind, though, it will feel that it is a partner in the fullest sense. There is a definite psychological benefit as well as material benefits in the changes the Government have agreed to. This is a change for the better and I thank the Minister for listening.
On Question, amendment agreed to.
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 42:
Page 5, line 21, at end insert—
"( ) A children's services authority may, if the authority considers it expedient to do so for the purpose of promoting co-operation between schools, the authority and relevant partners under this section, issue guidance which governing bodies of schools maintained by the local education authority, and the proprietors of academies and city colleges located in the area of the authority, shall have regard to."
The noble Baroness said: My Lords, we moved a similar amendment in Committee. It is an attempt to make absolutely clear on the face of the Bill that schools should have a role in delivering the Government's reform under Every Child Matters.
Some noble Lords may have read this week in the Guardian, on Tuesday, 16 June, an article by Fiona Millar in which she asks,
"Why are schools not explicitly mentioned as having a 'duty to co-operate' in the children bill. It may seem a small technical point now but in 10 years' time, when we reflect on whether we have truly integrated services for children, it might be one of the factors that determines the success or failure of the Every Child Matters strategy laid out in the green paper by ministers".
This amendment would meet the concerns expressed by the Minister in response to an amendment that we tabled in Committee. The Minister stated on 20 May that expecting schools to comply with guidance from the Secretary of State on co-operation,
"would create unnecessary bureaucratic burdens and would distract schools".—[Official Report, 20/5/04; col. 949.]
However, she also said:
"For schools generally, it would be more appropriate for the education authority to issue tailored guidance that reflects the local arrangements that have been set up for co-operation".—[Official Report, 20/5/04; col. 948.]
It is to meet this suggestion that we have expressly tailored the amendment. It would ensure that schools take account of the guidance from the children's services authority, which is a more appropriate body than the local education authority.
It is accepted that 99 per cent of schools will wish to work with their local education authority and other local bodies in driving forward the Government's
1000
reforms. There will be some schools, however, which are reluctant to do so, for whatever reason. That is why it is imperative to put in the Bill a duty on schools, even if it is only to take account of local guidance. Without such a duty, the only way that reluctant schools can be persuaded to join local efforts is either through the discredited "name and shame" techniques or through a direction from the Secretary of State under Section 496 of the Education Act 1996. That gives the Secretary of State the power to prevent the unreasonable exercise of functions in individual cases. This is a very long-winded procedure which the Government could circumvent in most cases by agreeing to this amendment. I beg to move.
Earl Howe: My Lords, I have a great deal of sympathy with the amendment and would have added my name to it if I had been quicker off the mark. I agree with everything the noble Baroness, Lady Sharp, has said in support of it.
At the end of the Committee stage, some of us were left feeling decidedly uncomfortable that, despite the Bill's huge and welcome emphasis on co-operative working, many of the key individuals who will, in practice, be expected to breathe life into this concept, have been omitted from the Bill. Perhaps the most extraordinary instances of this omission are schools and GPs.
The kind of co-operation and co-ordination in the Bill is at strategic and policy level. That is certainly necessary, but it is surely as good as useless if those on the front line, such as schools, are not signed up to joint working as well. It is not enough to say, as the Minister did before, that the views of front-line staff would be sought when policy was being framed at a strategic level. That is quite different from saving that schools and doctors are under a positive duty to work co-operatively where such co-operation is helpful to meeting the needs of a particular child. However, I suspect that we need not hold our breath for the Government to abandon their opposition to augmenting the list of partners in Clause 6. As an alternative, I hope that they will consider this amendment, which seems to provide a neat way forward.
The Government are clearly expecting a great deal from schools and the teaching profession in helping to deliver their wider agenda to improve the overall well-being of children. I have no objection to this idea—indeed, I think it is entirely logical, given that teachers and school staff spend more time with children up to the age of 16 than any other professional people. They are ideally placed to help children in a broader sense than just educationally by acting as the gateway to other public services where those are needed.
I fear for the way in which teachers and schools may react if they are not given some support in becoming a part of this new co-operative culture. The road will not be easy. I am sure that many teachers feel ill equipped and under-resourced to take on this enhanced and very responsible role. More and more schools are becoming community-minded and looking beyond the narrow

1001
confines of exam results, but to implement the well-being agenda, there surely have to be clear objectives for schools and teachers.
Co-operation is a fine word, but it has to be recognised that members of different professional disciplines are accountable in different ways and very often do not share the same understandings, language or practice. Addressing and overcoming these differences cannot be left to chance. It has to be planned. By that, I mean that professional development and training need to be put in place to ensure that common standards and practices become the norm and that there is mutual understanding between partners. Given half a chance, I am sure that many teachers will be very excited by this new wider role but, unless they are properly signed up to the big objectives and understand what they are about, they will not be in a position to sign up to the day-to-day implementation.
If schools are to be involved in this way we ought, at the very least, to find out what the pitfalls are. I am quite surprised that there has been no suggestion of pilots or an evaluation strategy to see what works and what does not. It is surely not sensible to encourage many dozens of local authorities to go down this track unless we can be more confident of the best route to take.
Baroness Howe of Idlicote: My Lords, I am going to be very brief, as I know that we are well past the time that we normally rise. Over these months, I have been rather impressed by the lack of involvement of the teaching profession and, having recently had a meeting with the General Teaching Council, I was equally impressed by the extent to which it is aware of the amount that needs to be done. It is already working at local level to try to get the co-operation that we are all hoping to achieve.
I think that some form of structure, which welcomes rather more their fairly large role in delivering what we all want to deliver, would be helpful and would be some form of encouragement. It may be that this particular amendment cannot be endorsed but later on, when we are talking about the detailed methods whereby the different members of the group can work together and share certain agreed objectives, it will be important. That is the end.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness, Lady Sharp, for raising this issue. I have not read Fiona Millar's article—she is a great friend of mine—but I shall do so with great interest because she writes extremely well and interestingly on these issues. I shall draw her attention to my remarks in Hansard.
I recognise noble Lords' concern that we should ensure that schools, academies and technology colleges should be in the right framework. However, the amendment is problematic and I am confident that we have better methods of achieving the ends that we all share.
1002
I accept what the noble Earl, Lord Howe, said: educational establishments and schools are absolutely key. Because they have the same contacts, they often know children and young people extremely well. We have children captive—in the best sense of the word—for a day. Being able to work with schools is critical.
I also recognise that if we are to pursue our agenda of standards in education and increasing the opportunities for education and training for children, we must look more broadly than at what I call the "9 to 3.30 experience". We must consider what happens to children before they arrive at school and when they leave and establish what role we can play in providing services around schools.
I could talk for at least 25 minutes on extended schools because that is one of my policy areas. As noble Lords know, I do not often get a chance to do so. However, I sense—particularly with the arrival of the Chief Whip—that that would be resisted in this Chamber. However, I wanted noble Lords to know that I could do so without using notes, which makes me feel very good.
I accept all that the noble Earl said about involving the profession—he said that there should not be a burden on teachers and that teachers already feel sometimes that they are social workers. We want to remove the burdens by bringing in support and expertise and enabling children to be seen in a more rounded way. There are some exciting developments: there are many pilots and projects all over the country, but I shall not discuss them at length. We are doing a huge amount of work.
The amendment is technically flawed. We did not put a legal duty on schools to co-operate because the arrangements are strategic. As noble Lords said, we placed the duty on education authorities because we felt that that was right. There is nothing to prevent children's services authorities putting out guidance on co-operation arrangements. Because of the Bill's approach to putting a legal duty on schools to co-operate, it is not appropriate to apply a duty to have regard to the guidance. Technically, the amendment does not work.
Behind the amendment lies the view that we may need some compulsion. Some noble Lords suggested that some schools will not do that. The framework is provided by our actions in terms of the new inspections, area reviews, the new relationship we are seeking with schools and extended schools and our ambition to support schools to offer services and see the child in a broader way. That is the framework in which to achieve what the amendment seeks.
Schools are already judged by the extent and effectiveness of their partnership with others. In particular, inspectors must evaluate and report on the quality of links with local communities and other schools. There is much more to do in that regard. The difference between us is that we think that in our work with schools and extended schools, we have the right approach. Using the framework of inspection and what we expect of schools without placing the

1003
burden—it would be resisted with good reason by this House—we can secure the cultural change and engage schools properly through the co-operation agenda.
On that basis—and because children's services authorities can issue guidance if they believe that that would be helpful—I hope that the noble Baroness will withdraw the amendment.
Earl Howe: My Lords, before the noble Baroness sits down, I should be very grateful if I could ask her one question that I forgot to ask relating primarily to GPs. In Committee, she explained that the co-operation duties in Clause 6—she made similar points in relation to Clause 7–apply to the relevant partners at strategic level but that independent practitioners such as GPs will not be required to co-operate. However, I think she said that there will be arrangements to direct primary care trusts to ensure that the contracts for primary medical services include a condition requiring the contractor to safeguard the welfare of children and to provide supporting guidance as appropriate.
If the noble Baroness cannot answer that now, I should be grateful if she would write to me. The contracts for GPs are, of course, negotiated nationally and the contract is in place, so I am not quite sure how this kind of arrangement will be built into the contract given that, as I say, the GMS contract is already signed and sealed.
Baroness Ashton of Upholland: My Lords, the noble Earl is reading the same briefing as I read last night going home; I recognise some of the wording. I am confident that we have addressed this matter through the PCT contracting arrangements I described in Committee. However, I shall write to the noble Earl as I was struck by the fact that the NHS Confederation briefing said that as the contract was national it could not quite see how the measure would work. I am confident that we have addressed the matter but, if I may, I shall write to the noble Earl about that to ensure that he understands how we have addressed the matter
1004
rather than pretend I know the answer. I passed the briefing to officials this morning and asked them to look at it. As there were no amendments on the matter on the Order Paper I did not think to obtain the relevant briefing in time. However, I should have known better.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply. There is a little bit of a problem here. She talks about getting a cultural change. The question is whether we can get that cultural change without the extra "kick" that comes from having a measure in the Bill.
I recognise that, particularly in relation to Clauses 6 and 7, we are looking at the strategic partners rather than those who actually deliver. There is a similar problem in relation to schools, in the sense that not all schools come under local authority auspices. A number of schools these days, particularly new city academies, are semi-autonomous.
I am not totally happy about the fact that there is no mention of schools as the co-operation partners, given that the schools have the day-to-day dealings with children, and have the responsibility, through their governing bodies, for looking after the children. We may well return to the matter again. I will read what the Minister said with care and look at the different aspects of it in relation to the Bill. Perhaps she and I can have some discussion about it as well. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Arrangements to safeguard and promote welfare]:
[Amendment No. 43 not moved.]
Baroness Andrews: My Lords, I beg to move that consideration on Report be now adjourned.
House adjourned at twenty-seven minutes past seven o'clock.