Children Bill [H.L.]

HL Deb 17 June 2004 vol 662 cc870-902

11.32 a.m.

Report received.

Schedule 1 [Children's Commissioner]:

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. 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 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 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 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". 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.

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.

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 moved Amendment No. 3: Page 34, line 10, at end insert— Protection from defamation actions

9A For the purposes of the law of defamation—

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

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 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, 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 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.

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 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 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 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—

1. (a) encourage persons exercising functions or engaged in activities affecting children to take account of their rights, views and interests;
2. (b) advise the Secretary of State on the rights, views and interests of children;
3. (c) review and report on the effectiveness of—
   1. (i) advice and advocacy services;
   2. (ii) complaints procedures; and
   3. (iii) inspection and whistle-blowing arrangements;
   so far as relating to children;
4. (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—

1. (a) ensure that children are made aware of his function and how they may communicate with him;
2. (b) consult children, and organisations working with children, on the matters he proposes to review and report on under subsection (2)(c) or (d);
3. (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—

1. (a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and
2. (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—

1. (a) young people in custody under the age of 22;
2. (b) those young people for whom a local authority has duties under the Children (Leaving Care) Act 2000 (c. 35); and
3. (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 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 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.

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 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 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 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.

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.

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 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, 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 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 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.

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.

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 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.

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.