Lords Sitting of 4 May 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

Export of Live Horses for Slaughter
Lord Higgins Lord Higgins asked Her Majesty's Government:
What progress is being made in preventing the export of live horses for slaughter.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, following the failure to agree new rules for live animal transport at the Agriculture Council on 26 April, the UK will continue to operate its existing legislation, including the minimum-value rules, although, as is well known by horse welfare organisations, those rules do not actually ban the export of horses for slaughter.
Lord Higgins: My Lords, I thank the Minister for bringing us up to date on these matters. Of course, it is disappointing that it has not been possible so far to continue the minimum-value legislation, which is surely the best way of ensuring the prevention of the provision of live horses for slaughter. What objections are being made in the course of the negotiations with regard to the continuation of the minimum-value legislation? Does he agree that, although the improved conditions for the transportation of animals should be welcomed, horses are a special case and are unlikely to be looked after as well as they should be if their owners know that the horses will be slaughtered at the end of their journey?
Lord Whitty: My Lords, the negotiations were on animal welfare and transportation legislation generally rather than on horses. The negotiations did not break down on the issue of horses, but related to hours of transportation, space, stalls and other issues on which there was no consensus in the Agriculture Council. The minimum-value regulations are British, not European, but they could have been modified by the provisions, which would have brought great animal welfare benefits.
Lord Livsey of Talgarth: My Lords, will the Minister take note of the plight of Welsh mountain ponies, which are quite used to the weather that is beating on the roof here at the moment? They are declining because they are of very little value off the hill. One of the problems is the cost of horse passports, which is often more than the value of the pony. The ponies are sold at markets. Unscrupulous dealers buy and export them, and they are slaughtered on the Continent. Many of us feel that that is totally unacceptable. Not only that, these ponies do not qualify for single farm
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payments. Will his department do something about the cost of these passports or even abolish them, or ensure that these ponies qualify for single farm payments?
Lord Whitty: My Lords, I am glad that as I stood up the Welsh weather declined. The noble Lord has brought his weather with him. The passport system for Welsh mountain ponies is a matter for the devolved administration. Within England, we have made special provision with regard to passports for those responsible for Dartmoor and New Forest ponies. I suspect that the Welsh authorities will look at that. Again, the administration of single farm payments in Wales is not a matter for me.
Baroness Trumpington: My Lords, does the Minister agree that there is not much point in us being goody-goodies when the rest of Europe is exporting its horses under extremely cruel conditions, together with an export market of horses for the meat trade in South America? Does he agree that we need a uniform effort on behalf of all the nations involved in this disgusting trade to get together and have one law for everybody?
Lord Whitty: My Lords, certainly, as far as Europe is concerned, that was our intention and that of the Commission when we proposed these regulations. It is greatly to our regret that the Agriculture Council failed to agree the legislation, which would have improved the welfare conditions of horses and other animals throughout Europe.
Lord Lester of Herne Hill: My Lords, the noble Baroness, Lady Trumpington, rightly referred to "this disgusting trade". Does the Minister agree that it is equally disgusting whether it involves the export o Clive horses or any other mature animal? The objection is to the cruelty inflicted on animals of any kind if they are transported in this way.
Lord Whitty: Yes, my Lords. There are two different aspects to consider. The first is welfare at the point of slaughter. When animals, including horses, are slaughtered within the UK, we try to enforce the very best welfare standards, which is not always the case if they are exported. There is also the manner of transportation, on which we were trying to tighten legislation for all animals in the discussions that failed last week.
Baroness Byford: My Lords, I am grateful to the Minister for confirming that the derogation has been allowed to continue. Will he tell the House exactly where the negotiations broke down? In the light of the breakdown, will more stringent rules on policing the transport of animals within the European Union be put into place?
Lord Whitty: My Lords, because of the Agriculture Council's failure to agree the provisions, neither the tighter rules nor their enforcement will be put into place. The issues on which there was disagreement included maximum transportation hours, the space

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assigned to animals, and, of particular relevance to horses, the detailed regulations on stalls. So a number of items could not be accepted by some member states and the negotiations broke down.
Lord Tordoff: My Lords, will the noble Lord tell us which member states those were?
Lord Whitty: Broadly speaking, my Lords, the further south you go, the more likely they are to object. Of course, that will be complicated after last weekend—probably, the further east you go, the more likely they are to object as well.
Baroness Strange: My Lords, does the Minister agree that even the heavens are crying because of the fate of the poor horses?
Lord Whitty: My Lords, previously I blamed the noble Lord, Lord Livsey, for bringing his weather with him, but maybe it was an intervention by the Almighty. Certainly, a lot of cruelty is involved in the horse trade across Europe. However, that applies also to other animals. It has to be recognised that the UK does permit the slaughter of horses for human consumption and there is an industry here. The important point is that the welfare provisions are of the best at the point of slaughter and the point of transportation.

Council Homes: Refurbishment
2.45 p.m.
Baroness Turner of Camden: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest. This is an issue that has arisen very sharply in Camden, where I am a resident although not a council tenant.
The Question was as follows:
To ask Her Majesty's Government whether they are refusing extra money for refurbishment of council homes in cases where tenants have voted against transferring housing management to an arm's length management organisation; and whether they object to direct council management.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the funding available for social housing, although greatly increased under this Government, is inevitably limited. We must therefore use it in ways that will most improve the lives of tenants. The Government have repeatedly made it clear that they will provide additional funding only to councils that separate their landlord and strategic functions. We believe that this provides a strong incentive to better performance, ensures a sharper focus on the two distinct housing functions, and guarantees tenants a greater role in the future management of their homes.
Baroness Turner of Camden: My Lords, I thank my noble friend for that response, which I find rather disappointing. How is his statement to be reconciled
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with the Government's desire to ensure wider choice in the provision of public services? After all, this is a case in which the tenants themselves have voted and have therefore expressed a choice. For that choice they are apparently to be penalised.
Lord Rooker: My Lords, it could be argued that they had a vote. We have made it clear that there are three options: local voluntary stock transfer, private finance initiative, and an arm's length management organisation. Under the latter two, the homes remain in the ownership of the council. We have also made it clear that we will make additional funding available only under those three options. There is no fourth way. Camden and every other council have been told that. Camden made its decision in the light of that information. The money is limited and we are directing the extra funds to one of the three options, for the reasons that I gave in my original Answer. Just in case anyone thinks that no money has gone into the decent homes standard in recent years, I should point out that, since 1997, no less than £18 billion has been spent on the decent homes standard covering the social sector.
Baroness Maddock: My Lords, I listened with interest to the Minister's Answer, but he has not really answered the Question. When local tenants choose to stay with their local council, what is the justification for penalising them? Of the local councils that have voted to stay or have not had a vote, how many have been inspected and found to be bad in their housing management?
Lord Rooker: My Lords, you cannot rig the ballot. When the ballots take place, it is known that one of the three options will bring in extra resources. If any or all of those options are voted down, the extra resources will not be available. That does not mean that nothing will happen; as I said, money has gone in. Indeed, about 100 authorities can meet the decent homes standard without selecting any of the three options. The fact is that tenants sometimes choose to stay with the council on the basis of false evidence from campaigners. Ministers are not allowed to campaign in favour of a "yes" vote because of ludicrous legal arrangements and straitjackets, and that applies even to policy enunciated and agreed by the Government.
The fact is that the consequence is known: there is no fourth way to extra money. That message has not quite got across. As I understand it, however, Camden has now accepted that that is the case. It is looking at another options appraisal and has started work on the process.
Lord Stoddart of Swindon: My Lords, as the former chairman of a housing committee and leader of a first-class local authority, I ask whether the noble Lord is aware that many people cannot understand why there has been a change in status. Good local authorities have always been able to manage their housing and their housing policy without any privatisation or assistance from outside bodies. If they had been granted sufficient resources by all governments to do

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exactly that, they would be providing, and able to provide, a much better service than the present split-personality service.
Lord Rooker: Look, my Lords, for years some local councils have operated on the basis, "Vote for us and we will keep your rents down". However, they never say that the consequence is that there will be no repairs and no modernisation. It is a con. We are doing it differently. As I said, £18 billion has gone into social housing since 1997.
I give my noble friend one example. He is a noble Lord; he was my noble friend. He still is my noble friend; I am not arguing that point. I give my noble friend one example of how the separation of landlord and strategic functions works. Today we announced the reaching of the target that was set two years ago to get all families with children out of bed-and-breakfast accommodation. Two years ago 4,000 families with 6,000 children were in bed-and-breakfast accommodation. That has been a highly targeted, highly managed process. It has been achieved with input from the public sector, the private sector and registered social landlords. Not all those families have gone into council housing. The point is that councils which have achieved that success rate of 99.3 per cent have dealt with their major strategic housing function of making sure that people are decently housed, not necessarily operating their narrow landlord function when some of them, of course, could not even collect their rents.
Baroness Thomas of Walliswood: My Lords, is the Minister aware of the recent result in Waltham Forest council? Does that result not rather challenge his assertion that housing services are inevitably better managed by an arm's length operation?
Lord Rooker: My Lords, I regret to say that I do not know the details of Waltham Forest. All I can say is that there has been success on this matter across the country. The largest stock transfer took place in Sunderland where 37,000 dwellings were successfully transferred. New organisations have been built up based on housing that are creating jobs and training enterprises going beyond the normal narrow range of the landlord function.

Government Departments: Public Spendingm Rounds
2.51 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Whether they will lay a duty on other departments entering future public spending rounds to consider the implications of their decisions for the Department for Work and Pensions.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, in past spending rounds, and in the current one, the Treasury expects government departments to consider
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the implications of their spending and delivery proposals for all other government departments, including the Department for Work and Pensions.
The 2004 spending review guidance sets out the requirement for departments to discuss proposals with financial implications for other departments with the department in question and secure its agreement before including such proposals in their submission.
Earl Russell: My Lords, I am grateful to the Minister for that Answer. He has indicated that the issue is not a dead letter, but is it a very live letter? When a large regional employer is closed, or when a decision is taken depriving old people of their weekly walk to the post office at a time when we are more concerned with the financial implications of fitness, the Government are passing to the Department of Social Security or the Department for Work and Pensions a cost that it cannot avoid. Should not that be considered always and carefully before the decision is taken?
Lord McIntosh of Haringey: My Lords, I am sure that I do not need to introduce the noble Earl, Lord Russell, of all people to the delights of DEL and AME. DEL stands for departmental expenditure limits and AME stands for annual managed expenditure, and is that part of expenditure which is demand led. The expenditure about which we are talking here is demand led. If additional expenditure is incurred by the Department for Work and Pensions as a result of decisions by other departments, that expenditure will be met. That is not to say that I condone any particular examples to which the noble Earl, Lord Russell, may refer of which I have no notice and of which I have no particular knowledge.
Lord Skelmersdale: My Lords, so far as demand-led expenditure is concerned, there is an obvious knock-on effect between activities of the Department of Health and of the Department for Work and Pensions. Is the Minister aware that Norwich Union Healthcare's ongoing survey has estimated that 9 million of the annual 22 million sick notes are suspect? Its survey of 255 GPs also found that those GPs believed that at least a third of sick notes are invalid. Surely this has a knock-on effect on sickness benefit which, of course, calls into question at the very least the Government's statistic on the number of employed.
Lord McIntosh of Haringey: My Lords, as I have no notice of that question, I have no basis on which to challenge the figures that the noble Lord, Lord Skelmersdale, puts forward, although they indeed sound extremely suspect to me. However, I repeat that if, as a result of the policies of any other government department, additional burden is put upon the Department for Work and Pensions, that expenditure is protected because it is annually managed expenditure and it is demand led. I very much doubt the figures that the noble Lord, Lord Skelmersdale, offers to the House.
Lord Peston: My Lords, why has my noble friend accepted the premise of the Question of the noble Earl, Lord Russell, which is that one department's activities place a burden on another? Surely it frequently happens, not least

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as regards the Treasury, that good economic policies actually lower the burdens on other departments. For example, the great increase in employment and decrease in unemployment has made life very much easier rather than harder for the Department for Work and Pensions.
Lord McIntosh of Haringey: Indeed, my Lords. That is why the expenditure on unemployment benefit in particular is so much less under this Government than it was under previous governments.
Earl Russell: My Lords, I wonder whether the Minister could ask the noble Lord, Lord Peston, to read more carefully the implications of the Question. It refers to the "implications of their decisions". That was intended for good or ill. It is more often for ill, but I do not think that anyone disputes what the noble Lord says; namely, that implications can be good. I just think that people ought to know.
Lord McIntosh of Haringey: My Lords, I suppose that I have to be grateful for that although the supplementary question of the noble Earl, Lord Russell, certainly went in the opposite direction.

Group 4 Falck: Sale of Global Solutions Limited
2.56p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Whether they have any influence over the proposed sale by Group 4 Falck of its subsidiary Global Solutions Limited, which operates HM Prisons Wolds, Altcourse and Rye Hill, and the Immigration Detention Centres Oakington, Campsfield House and Yarl's Wood.
Lord Bassam of Brighton: My Lords, all the contracts for prisons and immigration detention centres require the contractor to obtain the Home Secretary's consent to a change in the ownership of the contractor. We are currently considering Group 4 Falck's request for consent to the sale of Global Solutions to Bridgepoint Capital Limited.
Lord Avebury: My Lords, how was it that the Home Office appeared to know nothing about the proposed sale of GSL when Beverley Hughes answered a Question on the matter on 18 March, considering that the chief executive of Group 4 Falck had made an announcement that it was proposing to sell the company 12 days earlier? Will the noble Lord also say whether in this transfer the Government will make it a condition that the successor company implements the 29 recommendations made by Stephen Shaw in his inquiry into racism and other matters at Yarl's Wood, and that the recommendations of that report and of the Chief Inspector of Prisons are applied not only in Yarl's Wood but throughout the detention estate?
Lord Bassam of Brighton: My Lords, as I explained at the outset, the Home Secretary is currently considering the request for consent regarding Global Solutions. No final decision has been made on that, although my understanding is that a decision will be made shortly. As regards Stephen Shaw's very excellent investigation and report into allegations of racism and abuse at Yarl's Wood, given the importance of those recommendations I have no doubt that they will be studied very closely and that the important and salient conclusions which Stephen Shaw reached will find their way into improving the quality of practice across the detention centre and prison estate.
The Lord Bishop of Worcester: My Lords, I wonder whether the Minister can help us by telling us what are the criteria that operate in the mind of the Home Secretary when deciding whether to grant permission for a change of ownership or not. In particular, does he bear in mind the need to sustain patterns of regime and delivery of crime reduction objectives, or is it simply a financial consideration of viability that is in his mind?
Lord Bassam of Brighton: My Lords, the Home Secretary will have to pay very careful regard to the financial standing of the company and the way in which it responds to change in the marketplace. For that reason the Home Secretary takes very careful account of legal and financial advice that is given. Of course, the Home Secretary will have regard to other matters as it is very important that contracts which specify particular issues of importance in terms of policy are understood by the operating company and those who own the contract.
Baroness Anelay of St Johns: My Lords, can the Minister clarify slightly his response to the noble Lord, Lord Avebury, with regard to last week's report on Yarl's Wood, which is run by GSL? No doubt the Minister has, like me, read the report. The earlier remarks appeared to imply that the charges of racism had been proved correct. So far as I understand it, the initial allegations were not found to be proved by the ombudsman, and the recommendations involve additional training in race relations and cultural awareness but do not as such find an allegation of racism proved against those running the facility.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for her question. She is right to focus on the particular, because that is exactly what Stephen Shaw, the ombudsman, did. It is important that he specifically did not find that there was a general culture of racism, abuse or violence, an allegation that has been made on a number of occasions. That is not to say that the events recorded by the Daily Mirror were not deeply shocking. I am satisfied, as I am sure other noble Lords are, that those involved in the incidents no longer work in the Prison Service. One

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of them resigned and the other was sacked. I hope that that draws a line under the matter. All the recommendations made by Stephen Shaw have been accepted, and it is the Home Secretary's intention to put an action plan in place to ensure that they are very carefully followed through.
Lord Hodgson of Astley Abbotts: My Lords, in the light of the Minister's assurance that government consent has to be given for change of ownership, did the Government consent to Capita subcontracting part of its work on the Criminal Records Bureau to Hays PLC in India?
Lord Bassam of Brighton: My Lords, that is extremely wide of the Question, and I am afraid that I am not in a position to answer it this afternoon.
The Earl of Caithness: My Lords, can the Home Secretary insist on a change of terms of the contract when a sale or transfer takes place?
Lord Bassam of Brighton: My Lords, my understanding is that when it is the desire of the contractor to change ownership, the Home Secretary has to take all such points carefully into consideration. As a consequence of a change of the holding of the contract, there may well be some changes, but I suspect that those would be carefully negotiated and the subject of very careful advice.
The Earl of Caithness: My Lords, the changes have to be carefully considered by the Home Secretary, but does he have the power to alter a contract on a transfer?
Lord Bassam of Brighton: My Lords, we should deal with matters that relate to the detail of contracts carefully. I am happy to provide the detail that the noble Earl requires in writing, because that is a better way of dealing with it. He will get more precision from me. I believe in giving noble Lords the best, most truthful and most direct answer.

HMS "Trafalgar": Seaworthiness
3.3p.m.
Lord Methuen Lord Methuen asked Her Majesty's Government:
Whether recent reports on the seaworthiness of HMS "Trafalgar" are justified, particularly in the light of three or four safety specialists refusing to sail in her.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, HMS "Trafalgar" recently completed a major repair at Devonport. Rigorous checks were undertaken to validate all aspects of her seaworthiness prior to sailing. Recent press reports alleging that the vessel was in an unfit condition to proceed to sea were completely unfounded. Further claims that safety
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specialists were among those crew members left ashore for medical assessment were also untrue; none of those personnel can be described as safety experts.
Lord Methuen: My Lords, I thank the Minister for that reply. However, can he confirm: that the ship sailed with more than 250 defects; that the nose cone, which had to be replaced after the ship was grounded, was not replaced correctly; and that the radiation limits in the reactor compartment exceeded those permissible?
Lord Bach: My Lords, I am afraid that I cannot confirm what the noble Lord says. However, I insist that no Royal Navy ship or submarine would sail after a maintenance period without satisfactory completion of rigorous safety checks, a process that is always fully documented. Of course it is not unexpected for there to be minor defects following a period of maintenance. It is the purpose of the testing and training phase to ensure that all the equipment is functioning correctly, but I cannot agree with the noble Lord that there were that number of defects or that they were of the kind to which he referred.
Lord Renton: My Lords, is the Minister aware that HMS "Trafalgar" has been in Portsmouth Harbour for nearly 200 years, and is a magnificent memorial of a great victory and a fine museum? Why should it be exposed to the peril of going to sea when there is no need for that to happen?
Lord Bach: My Lords, I am afraid that I was not aware of the ship that the noble Lord mentioned, with its distinguished history. For the moment, I do not see its relevance to the Question.
Lord Astor of Hever: My Lords, following the Minister's point about minor defects, can he confirm that the crew members were specifically concerned about the safety of the nuclear reactor and the safety-hatch covers?
Lord Bach: No, my Lords, I cannot confirm that. The 12 of the crew who went to see the commanding officer were concerned about a number of issues. He thought that, in most cases, they could be suffering from some sort of stress and wanted them properly medically examined. One of the 12 stayed on board. The rest were medically examined, and five are now back on board, four have been medically downgraded for a month, and the remaining two are under investigation for disobedience to orders. However, they are not under investigation for mutiny.
Lord Redesdale: My Lords, the Minister does not seem to be answering many questions about some of the problems with the submarine "Trafalgar"—I do not believe that HMS "Victory" had a nuclear reactor on board—so will he say whether there was a problem with one of the control rods in the nuclear reactor?

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How minor was that? It has caused a great deal of concern. Are the numerous faults that my noble friend highlighted so minor? Last week, three crew members were treated after diesel fumes entered the sub's ventilation system during an exercise at Devonport. Also, breathing masks had to be worn when Freon, a refrigeration gas, escaped in another incident.
Lord Bach: My Lords, there was a minor problem with the single control rod. That is a minor defect, and the design authority that originally designed the reactor plant—Rolls-Royce, which I am sure that the House agrees is a fairly respectable UK company—agreed that the submarine was safe to sail. That decision has been agreed by the Ministry of Defence experts and, to put the cherry on the cake, independently assessed by the MoD's independent nuclear auditors. No country in the world takes more care to make sure that, when its ships sail, they sail safely.

Business
3.9p.m.
Lord Grocott: My Lords, with permission, we shall have a repeated Statement later this afternoon. It will come after the proceedings on the asylum and immigration Bill, will be made by my noble friend Lord Bach and will be on the treatment of Iraqi prisoners.

Smoking in Public Places (Wales) Bill [H.L.]
Report received.
Child Trust Funds Bill
Read a third time, and passed, and returned to the Commons with amendments.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.10 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 14 [Unification of appeal system]:
[Amendments Nos. 45 and 46 not moved.]
Lord Falconer of Thoroton moved Amendment No. 46A:
Page 13, line 22, leave out subsections (6) and (7) and insert—
"(6) Before section 104 of that Act (pending appeal) insert—
"103A REVIEW OF TRIBUNAL'S DECISION
(1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under subsection (1)—

(a) only if it thinks that the Tribunal made an error of law, and

(b) only once in relation to an appeal.

(3) An application under subsection (1) must be made—

(a) in the case of an application by the appellant made while he is in the United Kingdom, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

(b) in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

(c) in the case of an application brought by a party to the appeal other than the appellant, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision.

(4) But—

(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and

(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.

(5) An application under subsection (I) shall be determined by reference only to written submissions of the applicant.
(6) A decision of the appropriate court on an application under subsection (1) shall be final.
(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following remittal under section 103B, 103C or 103E.

(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more members.
(9) In this section "the appropriate court" means—

(a) in relation to an appeal decided in England or Wales, the High Court,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

(10) An application under subsection (1) to the Court of Session shall be to the Outer House.

103B APPEAL FROM TRIBUNAL FOLLOWING RECONSIDERATION
(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

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(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to—

(a) an order under section 103A(1), or

(b) remittal to the Tribunal under this section or under section 103C or 103E.

(3) An appeal under subsection (1) may be brought only with the permission of—

(a) the Tribunal, or

(b) if' the Tribunal refuses permission, the appropriate appellate court.

(4) On an appeal under subsection (1) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have made:

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87.

(5) In this section "the appropriate appellate court" means—

(a) in relation to an appeal decided in England or Wales, the Court of Appeal,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

(6) An appeal under subsection (1) to the Court of Session shall be to the Inner House.
103C APPEAL FROM TRIBUNAL INSTEAD OF RECONSIDERATION
(1) On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.
(2) On a reference under subsection (1) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have made;

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87;

(g) restore the application under section 103A to the appropriate court.

(3) In this section—

"the appropriate court" has the same meaning as in section 103A, and

"the appropriate appellate court" has the same meaning as in section 1038.

(4) A reference under subsection (1) to the Court of Session shall be to the Inner House.
103D COSTS ON RECONSIDERATION: LEGAL AID
(1) This section applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made—

(a) under section 103A(1), and

(b) on the application of the appellant.

(2) The Tribunal may order that the appellant's costs—

(a) in respect of the application for reconsideration, and

(b) in respect of the reconsideration,

shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).
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(3) The Secretary of State may make regulations about the exercise of the power in subsection (2).
(4) Regulations under subsection (3) may, in particular, make provision —

(a) specifying or providing for the determination of the amount of payments (which may, in particular, vary according to whether the Tribunal changed its decision on the appeal as a result of the reconsideration);

(b) about the persons to whom the payments are to be made;

(c) restricting the exercise of the power (whether by reference to the outcome of the appeal, the circumstances of the appellant, the nature of the appellant's legal representatives, or otherwise).

(5) Regulations under subsection (3) may make provision—

(a) conferring a function on the Legal Services Commission;

(b) modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (2);

(c) applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.

(6) Before making regulations under subsection (3) the Secretary of State shall consult such persons as he thinks appropriate.
(7) This section has effect only in relation to an appeal decided in—

(a) England,

(b) Wales, or

(c) Northern Ireland.

(8) In relation to an appeal decided in Northern Ireland this section shall have effect—

(a) as if the reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), and

(b) with any other necessary modifications.

103E APPEAL FROM TRIBUNAL SITTING AS PANEL
(1) This section applies to a decision of the Tribunal on an appeal where its jurisdiction is exercised by three or more members.
(2) A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.
(3) An appeal under subsection (2) may be brought only with the permission of—

(a) the Tribunal, or

(b) if the Tribunal refuses permission, the appropriate appellate court.

(4) On an appeal under subsection (2) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have macle;

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87.

(5) In this section "the appropriate appellate court" means—

(a) in relation to an appeal decided in England or Wales, the Court of Appeal,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland. the Court of Appeal in Northern Ireland.

(6) A further appeal under subsection (2) to the Court of Session shall be to the Inner House.

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(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following remittal under section 103B or 103C."

The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 47A, 50A and 52 to 59.
I am grateful to Members opposite for agreeing broadly to the procedure whereby I should move my amendments, which, in effect, put forward the structure in relation to the replacement of the existing judicial review ouster. Noble Lords have indicated that they do not intend to move their amendments so that there is a proper opportunity to consider my amendments, which is sensible.
Clause 14 is the central part of the Bill and it has provoked considerable interest and discussion. Clause 14 will create a unified appellate structure for asylum and immigration appeals but, as I said at Second Reading, we need to ensure that we have proper and appropriate judicial oversight of the system so that it is independent, thorough and fair. I agreed at Second Reading that we did not have that correct just yet, but I made it clear that any new system of judicial oversight must also ensure an increase in speed and a reduction in abuse.
For this reason I have brought forward these amendments to replace the judicial review ouster with a new system allowing oversight by the Administrative Court and Court of Appeal. Although I shall be referring to the Administrative Court and the Court of Appeal, I want to be clear that the arrangements for higher court oversight involve the higher and appellate courts in Scotland and Northern Ireland.
The amendments have been brought forward in consultation with the Lord Chief Justice. He is not here for this debate, but he has sent me a letter about the amendments, from which he has kindly said that I can quote in the debate. A copy of the letter has been placed in the Library.
It may be helpful if I set out how we intend the new system to work. Amendment No. 46A replaces subsections (6) and (7) in Clause 14 with the new system of judicial oversight of tribunal decisions set out in new Sections 103A to 103E that will be inserted into the Nationality, Immigration and Asylum Act 2002.
New Section 103A will allow a party to an appeal to the tribunal to apply to the High Court, for an order requiring the tribunal to reconsider its decision on appeal, on the grounds that the tribunal made an error of law. If the High Court judge thinks the tribunal made an error of law, the case will be sent back to the tribunal for reconsideration. We would expect cases to be sent back to the tribunal only if the judge thinks the error of law may have made a difference to the outcome of the case and we will ask the Civil Procedure Rules Committee to make this clear in the civil procedure rules.
The application must be made by an appellant within five working days from receipt of the tribunal determination, unless the appellant is appealing from abroad and then the application must be made in 28 days. If the Home Office decides to make an application, it must always lodge an application within five working days. An application will be determined by reference only to written submissions from the applicant. The decision of the High Court will be final. A person will not be able to use this review procedure to review procedural, ancillary or preliminary decisions. The review process is there to allow review of the substantive appeal determination made by the tribunal. Neither will a person be able to make more than one application to the High Court for a review. Where a case is remitted back for reconsideration, any further oversight of the tribunal's decision would be by way of appeal to the Court of Appeal.
We expect this system to operate much more efficiently than at present so that appeals in future will take a maximum of around 15 weeks—at present. although many appeals are decided quickly, those that go through every stage of the process can take a year or longer. In future, we anticipate it will take eight weeks from when the appeal is lodged until the appeal is promulgated by the tribunal. This is shorter than the time it takes for most appeals to be determined at the adjudicator stage at present and will be the result of concurrent working in the Immigration and Nationality Directorate and the tribunal—and better case management in the tribunal so the eventual hearing is better focused on the key issues. These changes will allow cases to be listed and determined quicker than at present.
We expect most appeals to be concluded after eight weeks, but for the minority of appellants who wish to challenge the tribunal decision, it may take a further seven weeks to have the review carried out and, if necessary, any reconsideration of the case by the tribunal. I should also add that during the transitional period, when the filter is operating, which I will explain later, another two weeks will be added to the later stages.
New Section 103B provides that where an appeal to the tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the Court of Appeal. They will not be able to seek a further review by the High Court. If they wish to dispute the decision, the only recourse is to appeal to the Court of Appeal. An appeal may be brought only with the permission of the tribunal or, if the tribunal refuses permission, the Court of Appeal.
New Section 103C allows the High Court to refer a case straight to the Court of Appeal if the judge thinks the case raises a question of law of such importance that it should be decided by the Court of Appeal. This could be described as a "leapfrog" procedure, as in such cases they would leapfrog straight from the High Court to the Court of Appeal without a reconsideration in the tribunal.
New Section 103D provides an enabling power to make regulations for a new legal aid scheme for both the High Court review process and reconsideration of

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cases by the tribunal. We wish to take such an order-making power because we intend to make specific legal aid provision for those applying to the High Court for a review. The amendment provides for the order to be introduced by negative resolution, but I understand that earlier today the Delegated Powers and Regulatory Reform Committee asked that we change this to affirmative resolution. I am willing to make this change and will bring forward an amendment at Report.
I am concerned that the new system has been overwhelmed by too many weak applications being made. For example, in 2003 there were 32,000 decisions taken on applications for permission to appeal to the Immigration Appeal Tribunal. Just 12,000 were allowed to pursue the case to a further level—not necessarily having the decision overturned. That means that 20,000 applications did not even have an arguable case and had no real prospect of success. We are therefore taking a new power in the Bill to introduce a new way of funding cases making a review application to the High Court and in any subsequent reconsideration proceedings. This will ensure that we arc targeting the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, we will provide the judiciary with the power to order that legal aid is paid in these proceedings.
In his letter, the Lord Chief Justice said:
"I am sure the Government will consult fully before the regulations are made, but in principle I welcome legal aid arrangements which allow meritorious cases to proceed but discourage applications without merit overwhelming the High Court".
I share the concern of the Lord Chief Justice, and I believe that the power we are taking in this Bill will enable us to achieve this aim. I should make it clear that we are not changing the initial funding arrangements for the appeal before the Asylum and Immigration Tribunal. The new arrangements, which we will bring forward in regulations, will affect the review application and any reconsideration proceedings that follow the review.
We are asking lawyers to share the risk with the taxpayer when deciding whether there is an arguable case against the tribunal determination and if it should be challenged. We believe that will lead to lawyers giving a more rigorous examination to the prospects of the case succeeding. Good lawyers will already be doing this, but we want to encourage this throughout the profession. It will enable us to focus ever more sharply on the deserving cases that merit legal aid funding. As your Lordships will understand, the legal aid budget is limited and we have to balance priorities carefully across jurisdictions.
The regulations will set out the detail of the scheme and these will be the subject of full consultation. The scheme will form part of the legal aid scheme and payments would come from the legal aid fund. We are not removing these cases from the scope of legal aid, but are proposing a new approach to evaluating the merits of seeking review and reconsideration proceedings. One could say that we are asking the legal representative to share the risk of bringing a case.
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However, to help mitigate the risk they are taking, we will pay a success fee to those cases that are successful on reconsideration of the case.
I would call the scheme "no win, no fee", but subject to exceptions. We envisage that a judge in the tribunal would order legal aid to be paid in circumstances where cases have been successful in reversing the earlier appeal decision, and cases that I characterise as "near misses". I think we all know what we arc talking about when we speak of near misses, but we have to think carefully how this is captured in the regulations.
We also anticipate that the High Court judge would be able to order legal aid to be paid if they consider there are exceptional circumstances for the review application and payment is required now—for example, a case of real general importance to the system that they are forwarding to the Court of Appeal. As for cases that have been brought to defend an appeal decision after it has been successfully challenged at the review by the Home Office, the applicant for status shall receive funding.
I am not taking this power as part of some anti-lawyer agenda. There are many good immigration lawyers, but a serious consequence of widespread bad practice is that specialist immigration lawyers are all tarred with the same brush. I wish to make it clear that I am wholly committed to keeping good lawyers within the legal aid scheme. There are a number of dedicated, highly skilled immigration solicitors and counsel. We recognise that these lawyers provide value for money to the Government and the taxpayer. They help us to process cases efficiently and to get the results right first time. They deal with difficult cases, often in difficult conditions. They enable us to be sure we fulfil our international obligations, and so perform a valuable public service. There are many good lawyers active in the Immigration Law Practitioners Association. ILPA works with my department, and with the Immigration Appeal Authority, in a way that benefits the appeals process as a whole. We are grateful for their hard work and contribution to the policy process.
New Section 103E provides that, where an appeal decision has been made by the tribunal sitting as a panel of three or more members, a party to the appeal could bring a further appeal on a point of law with permission to the Court of Appeal. Such cases would not be subject to review in the High Court; instead, they could leapfrog the High Court and go straight from the tribunal to the Court of Appeal.
If the tribunal sits as a panel with three or more members, this will usually mean the tribunal has identified the appeal as giving rise to a question of law of such general importance that it may result in a starred determination being promulgated by the tribunal. Such panels may include the president of the tribunal, who of course will be a High Court judge. In such circumstances, we think it right that the right of appeal should lie to the Court of Appeal, and it will ensure the Court of Appeal will receive the appeal more quickly than would otherwise be the case.
Amendment No. 47A introduces new subsections (9) to (11) to Clause 14. These new subsections set out a new order-making power that can be exercised by the Lord

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Chancellor after consultation with the senior judiciary. That will allow the Lord Chancellor to vary the time limits on the face of the primary legislation for lodging review applications to the High Court or Court of Session, or vary the time limits for specific categories of cases or circumstances. This is a sensible measure to take so that we can extend or reduce the time limits, depending on how the process works in practice, or enable us to vary it for particular types of cases if circumstances require it—for example, in relation to the fast-track cases, where the applicants are in detention.
Amendments Nos. 50A and 52 to 59 make changes to Schedule 2, which provides for consequential amendments and transitional provision. In particular, I would like to draw the attention of noble Lords to Amendment No. 59. It introduces the transitional measure of a filter mechanism for cases applying for a review to the High Court. This is to ensure that we do not put more cases to the High Court than it is able to deal with. The filter mechanism will operate for a limited period, until cases likely to come before it are at a manageable level. Under the filter mechanism, if a party applies to the High Court for a review under Section 103A, his application will initially be reviewed by a senior member of the asylum and immigration tribunal, who will either make an order requiring the tribunal to reconsider its decision, or refer the application to a High Court judge with his reasons for not ordering the tribunal to reconsider its decision, and notify the applicant.
For those unsuccessful review cases that are referred to the High Court, the appellant is required to write within five days to confirm they want the High Court to review the case as well, otherwise the application is considered to have lapsed. However, this opting in is not a further appeal right. There is only one review application under consideration. The appellant will not be able to introduce new grounds at that point.
The transitional provision will apply for an indefinite period until an order is made by the Lord Chancellor to bring it to an end. The Lord Chancellor will consult the Lord Chief Justice—and I will make a commitment to publish the Lord Chief Justice's advice—before making the order. If an order is made, the Lord Chancellor will also have the power later to restore the filter provision by order, if circumstances require it to be put back in place.
It is important that the appeals system is fair, but it must also provide speed and finality. A swift and final decision is in the interest of both genuine refugees and the British taxpayer, who should not have to fund those seeking to play the multiple tiers of appeal of judicial review and the costs that they incur.
I apologise for the detail of these opening remarks, but I think it is helpful in the consideration of these amendments.
Lord Clinton-Davis: Before my noble and learned friend finishes, would he like to say how and in what capacity he considers the advice given by the Select
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Committee on Home Affairs, the Constitutional Affairs Committee, and Asylum International? All of those bodies have a major role to play.
Lord Falconer of Thoroton: All of the points that they put in relation to the original Clause 14 were taken into account, and all of them had a significant part to play in the amendments we are now putting forward. I beg to move.
Lord Goodhart: We on these Benches give a qualified welcome to these new amendments. They are indeed a great improvement over the original version of Clause 14, which was highly objectionable and should never have been brought before Parliament. That does not mean that the new Clause 14 is perfect— we have a number of queries, and some criticisms of it.
Let me start with one point that is not in fact covered by the new amendment, as it is outside its scope, but it deserves to be. Under the Nationality, Immigration and Asylum Act 2002, neither adjudicators nor members of the Immigration Appeal Tribunal were required to be legally qualified. Section 81(2)(d) of the 2002 Act authorises the appointment of someone who,
"has legal or other experience which in the Lord Chancellors opinion makes him suitable for appointment",
but under new Schedule 4 to the 2002 Act, which is set out in Schedule 1 to this Bill, all members of the asylum and immigration tribunal must have legal qualifications or experience, and I would like to know the reason for that change.
I turn to the new government amendments. In new Section 103A, what is meant by "error of law", and, therefore, what are going to be the grounds on which the tribunal can be asked to reconsider its earlier decision? Does "error of law" extend to all the grounds on which a decision might be quashed by judicial review, for example irrationality, or the absence of evidence to support a conclusion of fact? If not, since judicial review is not excluded by the new Clause 14. we could end up with a situation where a decision could not be sent for reconsideration under new Section 103A(2), but could be quashed by a judicial review. That, it seems to me, would be a waste of time, and I hope the Government make it clear that reconsideration can be ordered on any grounds that would justify judicial review if there were no provision for reconsideration of the tribunal's original decision.
Perhaps the most objectionable provision of the new clause is the time limit under new Section 103A(3), to be inserted into the 2002 Act. In-country applications must be made within five days of the communication of the original decision to the appellant. While we agree that speed is important, five days seems to be seriously overdoing it. An application will require the applicant's legal adviser to receive a copy of the decision, to read and consider it and to draft and file an application to the High Court. It may well also require a meeting with the applicant at which the presence of an interpreter is needed. Any one adviser may be handling several cases at the same time, which will make his availability that much more limited. In all those circumstances, five days is wholly inadequate.

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We believe that two weeks would be the minimum in which to set the proper balance between speed of decision and justice to the applicant.
I note Section 103A(4)(b), which gives power to extend the time, but this should not be used as an excuse to make the original time unduly short. I note that Amendment No. 47A creates a power for the Lord Chancellor to vary the period specified in new Section 103A(3) by order. That order is presently under the negative resolution procedure. Such procedure is permissible for an extension of time or, once it has been extended, perhaps for bringing it back to what was originally specified in the Bill. However, given the tight time limits imposed in the Bill, I believe that any order which reduces them should require an affirmative resolution. I do not know whether the Delegated Powers and Regulatory Reform Committee has considered that.
Next, where reconsideration is ordered, there should be a requirement on the face of the Bill that it should be conducted by a panel of at least three members. If a decision has gone wrong the first time it comes to the tribunal, it is particularly important that it is corrected on the second occasion. The decision of one member of a tribunal should not be affirmed or overruled on reconsideration by a single member of equal status. I believe that reconsideration should therefore be carried out by a panel of three members.
I turn to the new Section 103D on costs. It is planned to convert the cost regime for applications to reconsider and reconsideration itself into a no-win, no-fee system. I can see some justification for that in principle. It is obviously not desirable to pay for representation in hopeless cases which should never have been brought, but many cases which do not succeed are not hopeless. In civil cases, where there is a no-win, no-fee system, that is allowed for by giving lawyers a mark-up on their normal fees in successful cases. I do not imagine that that is what is intended here, but if not, it is then surely necessary that lawyers should be paid where they have reasonable grounds for appealing but were not successful and not just in those cases described as "near misses".
3.30p.m.
Lord Clinton-Davis: I thank the noble Lord for giving way. In all the cases he has mentioned, the Law Society, or whichever body, can consider what is appropriate initially. Therefore, the solicitor making the application automatically has grounds if legal aid is granted. In those circumstances, is it not right that legal aid costs should be awarded to the applicant?
Lord Goodhart: Yes, I accept that in general it is the principle that the Legal Services Commission will provide a system in which there is initial vetting of the validity of the case. I am aware of the problem here; that that is a source of considerable delay in the system. While I would welcome an arrangement by which the justification for the application was vetted by the Legal Services Commission in the ordinary way before it was made, I am not wholly unsympathetic to the Government's view, which I assume is behind the provision, that that would delay the proceedings
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beyond what is reasonable. If that is the Government's view, they should accept the corollary that cases which are not demonstrably unreasonable should be given, ex post facto, legal aid by the decision of the tribunal.
It therefore seems to me that if the exclusion of the normal procedure for legal aid is to be applied in this case, it should be on the face of the Bill that legal aid under new Section 103D should be refused only where it should have been apparent to the applicant's legal advisers that there were no reasonable grounds for the application. If not, the consequence will be that some applications which would have succeeded and would have led to a successful reconsideration will never be brought. That may have disastrous consequences to those who are returned to their countries of origin as a result.
Lord Clinton-Davis: I apologise for intervening again. Is not the remedy the noble Lord wishes to pursue something of a gamble? Certain tribunals may not like legal aid and will therefore be averse to it. Would it not be more acceptable if the committee considering legal aid applications were to speed up its consideration?
Lord Goodhart: That would be a highly desirable conclusion, but whether it is practicable is another matter. That is a decision for the Government and if they are not prepared to do so, they must put on the face of the Bill a provision making it clear that wherever there are reasonable grounds for making an application, legal aid will be provided ex post facto.
Amendment No. 58 provides that some decisions of the tribunal are to be treated, under the direction of the president of the tribunal, as authoritative. What is the purpose of that provision? If a decision of law is treated as authoritative, the normal rule is that only a decision of the High Court, or a court at a higher level, is binding on inferior courts and tribunals. The decision, for example, of one judge of the circuit court is not binding on another. I can see no reason to change that rule. There is no justification for making the tribunal's decision on a question of law binding on some other subsequent proceedings before the tribunal when in fact there is a procedure by which questions of law can be decided at the level of the Court of Appeal. It seems appropriate that only those decisions made by the Court of Appeal should be regarded as binding on the tribunal.
If Amendment No. 58 is also intended to provide that a decision of fact can become authoritative—for example, that a particular country is safe for particular groups of applicants—that decision should not be authoritative in other cases because it should always be open to an applicant either to give evidence of a change in circumstances in that country or to introduce new evidence, which was not provided for reasons good or bad at the earlier hearing and was therefore not available to the tribunal in making the decision now said to be authoritative.
The Government are trying to have it both ways: to have a single-tier asylum and immigration tribunal but making one decision binding on another decision

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maker at the same level. In other words, all decisions in the tribunal are equal, but some are to be more equal than others. That seems inappropriate.
Finally, the Bill does not deal with the most serious problem, which is made clear by almost all organisations dealing with immigration and asylum cases. That is the -unsatisfactory quality of the first-stage decisions taken by immigration officers before the matter reaches the tribunal. If the quality of those decisions could be and improved, that would do more than anything to speed up and improve the quality of decision taking in immigration and asylum cases. Although the new clause is a substantial improvement on the original Clause 14, it is still capable of considerable improvement. We shall return with the necessary amendments on Report.
Lord Clinton-Davis: In following the noble Lord, Lord Goodhart, may I say that I agree with his conclusions about the inadequacy of the five-day rule? It is not practicably possible in five days to assume that all those practitioners can come to a proper decision. I hope that my noble and learned friend the Lord Chancellor will conclude from the submissions made to him that that period should be extended.
As I said in my intervention, the Select Committee on Home Affairs, the Constitutional Affairs Select Committee and Amnesty International have all made valuable contributions, acknowledged by my noble and learned friend. But to imply that they are without criticisms of the present proposals is not accurate. All have concluded that there are factors attached to the present amendment that are unsatisfactory in certain material respects, among them —I can see no difference of view expressed by any of the bodies I have mentioned—that the five-day rule is utterly inadequate. I hope that my noble and learned friend will come to a different conclusion on that matter when he considers what has been said in the debate.
Certainly I share the view advanced by the Law Society that it is possible to have a swift conclusion of the representations made but that a five-day rule does not have to be applied. I agree with what my noble and learned friend said. Where I depart from him is his profession that he is prepared, initially at least, to leave the matter of legal aid to the tribunal. I consider that to be a gamble. If the procedures can be speeded up with regard to asylum, why should the Legal Services Commission not be able to speed up its own procedures? It has to conclude that there is a prima facie case that the representations that are to be made to the tribunal are adequate. It is perfectly possible for it to come to the conclusion that, prima facie, it is desirable that legal aid should be extended for that purpose.
I am also worried about a matter that was touched on by the noble Lord, Lord Goodhart. The initial decision making by the Home Office is itself seriously flawed regarding the information about the countries of origin from which the asylum seeker has fled, the credibility of applicants and their allegations about torture where such allegations are made. I should like to know what has been the response of my noble and learned friend's department to those concerns.
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The second tier of appeal is supposed to provide significant protections. It does not, as my noble and learned friend suggested earlier, represent an abuse of the system. But I would like to know whether he sticks to that point of view. Is that the view of the Government about all similar systems; for example, the employment tribunal and so on? Where is the Government's evidence to justify what amounts to a radical departure from what, up until now, has been the norm?
I turn to the suggestion of legal aid in relation to immigration and asylum cases. In asylum cases there is to be a system whereby the legal representatives can provide up to five hours' advice regarding the initial decision. That can be departed from if the case is "genuine and complex". Are there to be special guidelines regarding that? What does "genuine and complex" mean? I think that there is a certain ambiguity about that. In immigration cases, the initial advice is to be undertaken in three hours. But no legal aid is available for Home Office interviews, save for unaccompanied minors, people suffering from mental incapacity and those going through the fast-track decision process. I wonder whether that is altogether fair.
Provision is also made for legal aid for immigration and asylum seekers' appeals to be diminished. Is that right? In what way is that fair? Does my noble and learned friend agree that there may be further restrictions under proposed new Clause 103D regarding legal aid?
The other matter to which I want to refer—this is my last point—is the Leggatt committee, which made certain recommendations concerning the second tier. The committee formed the view, with which I am wholly sympathetic, that there should be a right of appeal on a point of law. Will my noble and learned friend say something about that?
Finally, I entirely agree that what my noble and learned friend has put forward today is rather better than what was put forward in the past—something that I wholly rejected. On the other hand, I believe that some vital matters still require the consideration of this House and of another place.
Lord Thomas of Gresford: I agree with every word that my noble friend Lord Goodhart said, but perhaps I may also focus on the decision by the High Court judge to return the matter to the tribunal. Subsection (6) of proposed new Clause 103A states that a decision of the High Court judge,
"on an application under subsection (1) shall be final".
Subsection (5) states:
"An application under subsection (1) shall be determined by reference only to written submissions of the applicant".
Therefore, the respondent—presumably the Home Office—will not be represented and will not make written submissions.
However, the High Court may make an order to return the matter to the tribunal only if it thinks that the tribunal made an error of law. In the field of judicial review, the customary position is that the High Court judge who is considering an application for leave will grant leave if he believes there to be an arguable case—not if he makes a subjective decision that the particular tribunal with which he is concerned made an error. That provision requires the

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High Court judge, without any representations from the respondent, to come at least to a provisional conclusion, which must have some influence on the tribunal to which the matter is returned.
When the word "tribunal" is used in subsections (1) and (2), is the thinking that the High Court judge will order the matter to be reconsidered by the member of the tribunal who heard it in the first place? In other words, does the application go to the High Court and, if the judge thinks on written representations only from the applicant that the original decision was wrong, does he then send it hack to that person telling him that, in his view, he has made an error? If that is the case, it is hardly an appeal to any degree at all. I want to underline the point made by my noble friend Lord Goodhart that, if the matter goes back to the tribunal, it should be heard by a different member of a different panel of three members of the tribunal.
The Lord Bishop of Newcastle: At the end of the debate on Second Reading, the noble Lord, Lord Kingsland, set out three conditions that any replacement of Clause 14 should fulfil. They were: the right of appeal to the Court of Appeal and onwards; the reinstating of the supervisory powers of the higher courts; and improving quality so that any new system is better than the present one.
I, like other noble Lords, very much welcome the reinstatement of the right of appeal. It is important for refugees, whose causes may throw up very complex cases of law, fair procedure and, indeed, the interpretation of the convention relating to the status of refugees, that the right of appeal should be reinstated.
However, I also share the concerns of other noble Lords about the practicality of the five-day time limit. It seems to me to be far too short. No one knows when the decision will come through. The decision must be read, instructions must be taken from the appellant, interpreters must be found and an application to the High Court prepared. I fear that submissions will be very hastily prepared, and that is a recipe for neither good quality nor efficiency. In any case, children's charities and those working with refugee children already report difficulties in finding good legal aid representatives. The demand far outstrips the supply, and many hours are already spent trying to find a good lawyer who is willing to take on the case. This very tight time limit will simply make things even more difficult, and I hope that the measure will be reconsidered.
I also worry about the no-win, no-fee scheme of payment, if that is how it is to be described. Or is it a no-win, no-fee but near misses will be funded as well scheme? Surely making people ineligible for the funds to pay for an appeal when they are already destitute could have the simple effect of preventing them appealing altogether.
Of course, I acknowledge that the whole asylum system is difficult. and we have many concerns about its present quality. At a recent tribunal hearing, the then Dean of Newcastle, who was there in support of
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a regular worshipper at the cathedral, was asked by the chairman of the tribunal, "Tell me, is the cathedral mainstream religion or is it some kind of way-out sect?". Such incidents do not fill me with much confidence in the quality of the system that we have at present.
I have real concerns about the five-day limit. I have concerns about the no-win, no-fee arrangements, which will make immigration and asylum an even less attractive area for lawyers to practise in. We know that the best protection against bad representatives is a sufficiency of good representatives. Of course, the Government are working very hard to ensure proper regulation in this field. That seems to me to be the best way to go rather than using conditional fee arrangements.
I want to make one last comment on the subject of supervision. Why is it necessary for the application for review to be by written submission only? Why not allow the court to determine whether it wishes in exceptional cases to hear oral arguments? Surely we can trust our judges to exercise such a power both wisely and well.
4p.m.
Lord Donaldson of Lymington: It is necessary to consider the Government's amendments both for their own merits and because this is a very important occasion when an ouster clause was taken far beyond any limit that anybody in the past had considered. That clause has now been reconsidered by the Government and we have these amendments. I want to underline the fact that this is not a trifling change; it is something almost and possibly actually historic.
I shall deal with three points raised by the noble Lord, Lord Goodhart. First, I shall comment on error of law. I hope that there will be no attempt to define an error of law, cynically perhaps because I have always thought that the ability of the judiciary was to regard what others might ignorantly regard as an error of fact as being an error of law. Such a definition would deny a degree of flexibility which is highly desirable.
The second aspect is that I have never understood it to be suggested that any of the grounds upon which the Administrative Court—as it is now called—has acted in the past was other than an error of law. I served for quite a time in that court and I never thought that there was any doubt about that. Wednesbury springs to mind. In the early days of Wednesbury, and comments about it, the logical basis for Wednesbury was that the Minister concerned was of course a very reasonable man. All Ministers of the Crown are irrebuttably reasonable men. So if he reached an unreasonable conclusion it must be because he failed to take account of something which was relevant, or took account of something that was irrelevant, and that was necessarily an error of law. Subsequent cases have said that you do not need to go through that rigmarole—it is sufficient that unreasonable decisions can be set aside or omitted. I hope therefore that that will be left like that.

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The question of reconsideration has caused me some surprise because I had assumed that any remission to the "tribunal" would be a remission to the same tribunal—whatever kind of tribunal it is: whether three men, one man, or whatever. While I can see the advantages or merits of the suggestion of the noble Lord, Lord Goodhart, that the appeal should go back to a different tribunal, that would be a very different proceeding because the new tribunal would have to start again. In a typical situation, if the reviewing body sent the decision back for reconsideration, it would be on the basis that the tribunal has omitted to look at something or failed in some other respect. That could well be a Wednesbury situation. But the man who made the original decision would be in the best position to correct it, in the light of direction and advice from the reviewing body. If the appeal goes to an entirely different tribunal then that is a different animal. There would have to be rules or procedural arrangements to enable that new body to start again, with the awful possibility that, having started again, there might be entirely fresh grounds for objection or asking for review. It would be quite impossible to say that there could not be a second review or anything of that sort.
The other point concerns Amendment No. 58. I agree with the objections and criticisms of the noble Lord. Lord Goodhart, that you cannot have a tribunal deciding at its own level that decisions shall be authoritative, short of the much higher level of the Court of Appeal, where that does apply—although there are devices for distinguishing earlier decisions on the grounds that perhaps it was a two-judge court. I once had the privilege of sitting with Lord Denning in just such a case, who said, "I have decided that, on an interlocutory matter, in this particular appeal, but I do not think I was right. We will therefore ignore it". It seemed to me, as a junior member of the court, to have a lot of merit on those particular facts. I assumed that it was not going to become part of the jurisprudence of the court.
Amendment No. 58 has a point, obviously, that where you have multiple tribunals—which will inevitably be the case—and parallel courts, as far as possible they should sing from the same hymn sheet. I assume that Amendment No. 58 is intended to produce that result. The amendment could produce that result if it had a persuasive rather than a binding provision so that it would be open to other tribunals to depart from it to some greater or lesser extent.
There is a lot to be said against matters of fact being even of persuasive authority, although it is not as objectionable as a binding authority would be. But that could be ameliorated to some extent if one considers what question of fact will be of binding authority. It cannot be a fact peculiar to the applicant, because it would never be the same. On the other hand, it could be a matter of enormous importance, such as
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what is a safe country. I do not know the answer to that dilemma. I merely support the suggestion that there is a dilemma.
Lord Mackay of Clashfern: I certainly warmly welcome the fundamental change of stance which the amendment, moved by the noble and learned Lord the Lord Chancellor, signals in respect of Clause 14. Nothing that I will say hereafter is intended in any way to detract from that. These amendments are a huge improvement on what went before, but perhaps they are capable of some further improvement.
I will look first at Amendment No. 46A and Clause 103A, which it is proposed to put into the Act. I do not intend to raise the question of the time limit—that will have to be the subject of an amendment. The noble Lord, Lord Goodhart, indicated that he will table such an amendment at a later stage. However, I can see arguments that are important in that connection.
Subsection (5) of the amendment states:
"An application under subsection (1) shall be determined by reference only to written submissions of the applicant".
Obviously, a decision under review would require to be referred; it cannot just be a matter of the submissions of the applicant. When it states,
"reference only to written submissions of the applicant",
that is a slightly over-emphatic way of saying what is intended. It must be right to allow written submissions from the respondent; otherwise, a court may overlook a fundamental point. It is exceptional to hear only one side in a judicial process. I know that it happens in relation to leave in the ordinary case. But I would have thought that the court should have power to have, if it wanted, written submissions from the respondent.
That brings me to mention the very moderate statement made recently about judicial decisions by the Home Secretary. I was wondering whether he was aware that the difficulty that he had was because the Home Office, or whoever in government was responsible for these matters, was seeking to oust the jurisdiction of the court to deal with interim matters such as bail. That was so successful that apparently no appeal was left unless judicial review was opened. I just wondered whether the Home Secretary was aware that that is how the situation was brought about.
I assume also that the application under subsection (1), referred to in subsection (5), may well be dealt with by a reasoned decision, so that the judge's reasons for sending the case back will be before the tribunal. I hope that it would be within the power of the judge to decide whether the case should go back to the same or a different tribunal. For example, if the error in law concerned the bias of the tribunal member who decided the case, it would be unsatisfactory for the matter to go back to him or her. So, I think that it would be right to leave the judge the power to decide the issue in relation to the circumstances of the case.
I also welcome in principle the filter mechanism in Amendment No. 59, to which the noble and learned Lord the Lord Chancellor spoke. If I heard him right, he said that the review would be entrusted to a senior

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member of the tribunal. I do not notice that in the clause, but it may be that seniority is to be inferred without reference in this situation, as in some others.
So far as concerns treating a decision of the tribunal as authoritative in respective of a particular matter, I am not clear what is intended by that. Is it authority for the tribunal itself? If so, it must be only so long as it stands because it is open to be set aside by the Court of Appeal. I cannot remember a previous example of that. The noble and learned Lord may have some examples in mind, but there are none in my mind at the present moment. That may be due to lack of recollection rather than to absence of fact.
I should like to say a word or two about the legal aid provisions, which are supposed to be a no-win no-fee type of arrangement. My understanding of the no-win no-fee type of arrangement is that where it applies and there is no win, there is in fact no fee. In other words, in that situation the lawyer is not in a position to charge his client. This arrangement is not of that kind. So far as I can understand it, it is a legal aid arrangement. Therefore, even if the lawyer loses, he may still be entitled to charge his client. What the right reverend Prelate said about that must be relevant.
The other point about the lack of uplift, referred to by the noble Lord, Lord Goodhart, is of course relevant. One purpose of the uplift is to enable genuinely borderline cases to be taken, so that the lawyer would not refuse to take a case simply because the chances of success were not greater than 50:50.
Incidentally, the legal aid position, as far as I can understand the section, does not apply to Scotland. There must be some extremely good reason for that. I expect that legal aid is a devolved matter. I am not certain what the reason is, but the section does not apply to an appeal decided in Scotland. One can envisage certain types of appeal in which there might be some pressure to go to that beneficial jurisdiction to have the case decided.
The provision that troubles me, although I can see the reason for it, is that there can be only one application to the High Court in any appeal. As a result of the decision to refer the case back to the tribunal, one can see that a different line might be taken than was taken on the first occasion. The judge's reasoned decision might well aid that, or help to cause that to happen. If that happened—in other words if the grounds of the decision of the tribunal were very substantially different from the grounds of the first decision—I think that it would be unfair to prevent a second application. I can see the trouble that would be caused by a number of applications being taken in the same appeal. I can see the desire to stop that. I can also see occasions in which restricting the number of applications to one might create a manifest injustice. I hope that it would be possible to leave the court to deal with that. The review mechanism—that is the filter mechanism—so long as it lasts might produce one way to handle that.
As l said, this provision is a great improvement on what we have had before, but I hope that the noble and learned Lord will be prepared to improve it further. I
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am particularly glad that the amendment confers powers on the Lord Chancellor rather than on the Secretary of State for Constitutional Affairs.
4.15 p.m.
Earl Russell: When Sir Henry Slingsby, MP for Knaresborough in the Long Parliament. sat down to write his memoirs, the rudest thing he could think of to say about the time he had lived through was:
"These be times for historians to write".
The noble and learned Lord, Lord Donaldson of Lymington, when he said that the original version of this amendment was "almost historic", I think could safely have cut out the qualification. If it had gone ahead it would have been. I am immensely grateful to all those concerned who have put a great effort, both public and private—and I suspect the private in some cases is more important than the public—into ensuring that we did not have a historic battle. I welcome the body of these amendments in that spirit. However, that does not mean that we are not subject to the ordinary disagreements of parliamentary life as this needs to be considered, as my noble friend Lord Goodhart suggested, very much in the spirit in which we consider any new legislative proposal.
I always enjoy listening to my noble friend. I do not think I have ever heard him speak quite as well as he has today. The five days is a point on which practically the whole House seems to be agreed. Two recent developments have made the five-day limitation a great deal more unreasonable than it would otherwise be. The first is the relic of the policy of dispersal. We have all heard my noble friend Lord Greaves talking about the difficulties of attending at Croydon at 9.30 when one has to travel down from Lancashire and one has no money for fares.
The other reason why five days has become more unreasonable is the rapid decline of the postal service. We do not have to believe the "Despatches" programme for that. According to Sunday's business section of the Observer, the Post Office is liable to face fines of £80 million for having missed almost every one of its performance targets. My own record is the time when my whip took 16 days to travel from Westminster to Kilburn. Under these circumstances, requiring the lodging of an appeal within five days does in many cases fall foul of the maxim that the law does not compel the impossible. We really are going to have to think again about that.
I will say just a little bit about what was wrong with the initial amendment, not in any critical spirit, but because I am sure that all of us, including the Home Secretary, do not want to end up here again. In fact, it is important that we should not. The original amendment, in words that reversed the judgment in Anisminic, said that one could not condemn a decision of a tribunal by reason of lack of jurisdiction, irregularity, error of law, breach of natural justice, or any other matter. It is the definition of a sovereign power that it can do what it likes, and it cannot be corrected but by itself. Those words conferred something similar to the powers of a sovereign power on the court in that particular matter. It is by claiming powers

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like this, in what used to be described as lex parliamenti, that parliaments in the past have found the power to condemn judges, Ministers, Privy Counsellors and even Lord Chancellors for offences as severe as treason.
Sir Thomas Wentworth had a point when he said, "they say God deliver us from his arbitrary government; I say God deliver us from their arbitrary treason". It is not in the Minister's interests to encourage courts to think that they are capable of taking powers as arbitrary as this. Purely in their own interest, I hope that they will never do it again.
I was interested in some of the points made by my noble friend Lord Thomas of Gresford. The difference between believing a case is probably right and believing that it is arguable is like the watershed between the St Lawrence and the Mississippi. It is very flat ground; it may be almost invisible; but it makes a difference of many thousand miles to where the water ultimately flows. I hope that the remarks made by my noble friend will be taken with the seriousness that they probably deserve.
I was also taken by his point about whether the case is to be referred back to the same person. When one is asked to review one's own decision, one inevitably bears the appearance of being judge and party in one's own cause. Purely casually, I happened to find in the course of reading, rather late last night, a case where that was roundly condemned from as early as 1220, and it was stated as a long-established principle that it was assumed everyone already knew. The reflexive character of that was one of the things that was wrong with the original Bill. I do not want it coming into the amended version by the back door. James Bond once turned to swear at Goldfinger, and got the reply, "Even I am incapable of that, Mr Bond". We do not want to get into that situation either.
I share the anxiety that has been expressed about conditional fees, but I will not develop it any further. I have a lot of sympathy with what has been said on the question of what is authoritative. I remember a story that Jeremy Thorpe used to tell about a counsel who had a case that had been before that judge before, some 20 years earlier, on the basis of which counsel, most unwisely, had assured his clients that victory was certain. The judge judged the other way. Counsel, white as a sheet, said, "But these facts have been before you before, my Lord". "I know, but they do not appear to me now as they appeared to appear to me then". Statutory provision that a decision shall be authoritative will cause very great difficulties to our present judges' successors. We should be wary how we do it.
With those reservations, I should like to join the universal gratitude to Ministers, intermediaries, senior persons, Members of the Opposition Front Benches— in fact to everyone—for showing the spirit of moderation and compromise for which this House is justly famous and for which I am extremely proud to have the privilege of belonging to it.
Baroness Carnegy of Lour: I wonder whether, as a complete amateur in these matters, I might ask the noble and learned Lord a question concerning
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Amendment No. 47A, and how the five-day period might be varied. As I understand it, it would be done by an order subject to annulment, after consultation by the Lord Chancellor with the head of the judiciary of the part of the country concerned.
I was not able to be at the meeting of the Delegated Powers and Regulatory Reform Committee this morning, but looking at the manuscript report, it seems that the committee accepted that this order should be subject to annulment, not after agreement by both Houses. I wonder what the problem is with this. Is it the case that the Lord Chancellor intends that the variation of, say, the five days might be different in different parts of the country in different circumstances? In his letter to the Delegated Powers and Regulatory Reform Committee, he pointed out that this order will interact with the rules of court. I am not sure whether the rules of court are different in Scotland and England. Perhaps I should know that.
Is the problem that, say, for Parliament discussing this matter, different periods might relate to different circumstances—for example, whether the asylum seeker was in detention or not, but also for different parts of the country, and how the courts were working? I can see that the head of the judiciary would know whether there is a problem about five days in one part of the country, whereas another head of judiciary might not know about that particular problem. I wonder if the noble and learned Lord, when he replies, could clarify that point. I hope that I have explained it properly. It is slightly difficult for me to do it concisely.
Lord Ackner: One should not overlook, in the congratulations that have been referred to, congratulating the former Lord Chancellor. It was, after all, his initiative to put his name down to fight the ouster clause that caused this Government to think again.
I know no more powerful argument for the retention of the Lord Chancellor than what happened in relation to the ouster clause. The existing Lord Chancellor was prepared to back it. It was only a former Lord Chancellor who decided to break his vow of silence and speak against it that caused this Government to repent. The previous Lord Chancellor did not even have to open his mouth. He merely indicated that he would open his mouth unless the Government thought again. That shows how essential it is that there is some power concentrated somewhere in order to make the appropriate resistance to what was a perfectly monstrous proposal to deny the public a right of access to the courts.
I make a number of points. As regards the reference throughout to "the Lord Chancellor", what happens if and when there ceases to be a Lord Chancellor? Is all decided by the Secretary of State for Constitutional Affairs when it is accepted that he could well not be a lawyer and that he ought to be in another place? Where is the independence which is assumed to exist here? The Lord Chancellor is the person who makes the serious decisions. What happens when he goes?
I turn to a point of law. Do the Government accept that, for instance, a failure to comply with the rules of natural justice is a point of law? The rules of natural

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justice have been defined as being merely the elementary rules of fair play in action. Technically, that does not sound like a point of law although I appreciate that it has often been so treated. If the Government accept that it should continue to be so treated it ought to be said clearly.
I fully appreciate and support the speeding up of the processes. That is best achieved through the filter system. We in this country do not realise how fortunate we are with the degree of tolerance which has been shown as regards filters. It does not exist on the Continent. Some time ago, Italy was aghast at the time it took for appeals to be heard. It decided that it would bring in a very moderate filter system. It was thrown out with indignation. It was said that everybody who wants to appeal should have the right to do so. But our system is rightly shot through with filter systems. I do not object to them in any way, as long as they are fair.
On that subject, I do not accept, as others have said, that the court must think that the tribunal made an error of law. That really requires the "court of appeal", to reach a firm decision when it is accepted that the respondent has not entered any material on his behalf and when at that stage it has always been accepted that a good, arguable case is wholly sufficient. There is a distinct difference between saying, "I consider that there has been an error of law" and saying, "It is fairly arguable that there has been an error of law". It may not be workable, but there should be situations where, for example, the "appeal court" could say that, as the suggested error in a case is lack of jurisdiction, it would like to hear what the respondent says. On that kind of point, having heard the applicant and respondent, the court should decide that there has been an error of law; the matter should not be sent back to the tribunal for it to reconsider what is a pure point of law that should be easily definable in those circumstances.
I do not repeat what has been said about five days being too short. But, for my own education, I invite the noble and learned Lord the Lord Chancellor to give us a short snapshot of where legal aid begins and what are the earlier decisions when it is refused so that the prospect of getting forensic help is unlikely to have been achieved. That is all I have to say at this stage.
4.30p.m.
Lord Kingsland: It is not often that a Member of the Opposition Front Bench congratulates the noble and learned Lord on one of his amendments—but that I do.
As the noble and learned Lord rightly pointed out to the Committee, we did not move our amendment for a very simple reason. The three fundamental criticisms that we had of the Government's original Bill are met by the noble and learned Lord's own amendment. First, the Government have rightly and thankfully expunged the ouster clause. Secondly, they have restored the right of appeal to the Court of Appeal and then on to the Judicial Committee of your Lordships' House. Thirdly, and perhaps more controversially for some Members of the Committee, they have taken the two stages of adjudicator and tribunal and reduced
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them to one. We support all those components of the Government's amendment. But we do have things to say about it.
I start with a point which has troubled a number of Committee Members and that is the distinction between an error of law and a point of law on which normal appeals are based.
I do not know whether it is true, but there may have been an element of confusion in translating the old Section 101 of the Nationality, Immigration and Asylum Act 2002 into the new Bill.
The new Section 103A states,
"A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appear".
Under the 2002 Act there was an additional stage of appeal. It was not just an appeal from the tribunal; hut, first, from the adjudicator to the tribunal and then an appeal further from the tribunal. The former appeal was dealt with in Section 101 of the 2002 Act. I make no apologies to the Committee for quoting from it. Subsection (1) states,
"A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law".
Subsection (2) states,
"A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law".
So in the 2002 Act the issue of error of law arose only if the tribunal, itself, refused an appeal to itself from the adjudicator on a point of law. The issue is whether the Government have now deliberately substituted "error of law" for "point of law"; or whether there is some other reason, which I have not yet fathomed, to explain why the translation of the first two subsections in Section 101 has not taken place in the way in which the Committee would have wished.
I turn now to the second question that I wish to raise, which is about the transitional provisions. I know that the noble and learned Lord the Lord Chancellor has been under a certain amount of pressure from the noble and learned Lord the Lord Chief Justice and the Administrative Division of the High Court to introduce into the Bill a filter stage. The reason for this is that the judges, in my view rightly, discern that, without this filter, the administrative court would be engulfed with applications from the tribunal now that there is only a single stage.
My concerns are not about the principle but about two aspects of the way in which the noble and learned Lord intends to implement the filter. The first aspect has been referred to already by the noble Lord, Lord Goodhart, and a number of other Members of the Committee—that is, exactly what are the arrangements internal to the tribunal which will ensure that the principles, to which the Committee rightly adheres in matters of appeal, are properly respected'? The noble Lord, Lord Goodhart, was quite right to ask the noble and learned Lord the Lord Chancellor to give as much detail as is necessary to reassure the Committee that these principles will be respected.

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On the issue of reconsideration, I share the view of the noble and learned Lord, Lord Donaldson. In normal circumstances—for example, where the tribunal has misdirected itself in law—I see no reason why the matter should not be remitted by the High Court to the same tribunal to reconsider it. However, there may be circumstances in which, for example, a member of the tribunal had certain characteristics which ought to have led to his or her standing down rather than hearing the case. In those circumstances, clearly the tribunal that rehears the case would have to be a different one. In sum, in my submission, the Committee will need to see more on the face of the Bill about the way in which the process of reconsideration will operate in practice.
My second concern about the filter is its open endedness. In my view, it is very important that pressure is brought to bear on the system to improve the quality of decision making at lower levels. If the filter is there indefinitely, in my submission, that pressure on the system will not be there.
We all know that the reason why there is such a high volume of appeals throughout the system is because of the poor quality decision making at the Home Office interview stage and at the adjudicator stage. If no changes are made in those areas, the filter will be there permanently. So I think it is desirable that the House should have the opportunity, every two or three years, to look at how the system works to ensure that the filter is not simply used as an excuse for not committing appropriate resources at the interview and tribunal stages to get better quality decision making.
The Committee is familiar with the issues and I do not intend to go into them in detail today. I simply propose to remind the Committee that at the interview stage we believe it important that not only is a tape-recording made of the interview but also that a transcript of what is said is subsequently produced and that the legal aid provisions are a great deal more generous than those recently implemented by the Government.
I have equal concerns about what is likely to happen at the new single tribunal level. I hope that I am wrong—but I cannot resist the temptation to say it— in suggesting that I fear that the new single tier tribunal will simply mimic the existing adjudicator system; in other words, the Government are saying that they are merging the adjudicator into the tribunal but what they are really doing is merging the tribunal into the adjudicator system. In my submission that would be unacceptable.
It is especially unacceptable to have in any future tribunal a single legally-qualified person taking the tribunal decision. Such a decision will be the only occasion in the immigration and tribunal system when the credibility of an asylum applicant is examined objectively. There is to be no appeal on the facts. There is clearly not an objective analysis at the Home Office stage because the Home Office has a particular view about the way in which the system should operate. So the tribunal stage is the only moment when the facts are objectively considered.
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In my submission, it is essential that the Government ensure that each tribunal has at least two, and normally three, members to consider all the factual aspects of an asylum seeker's application. The issue of credibility, more than any other issue, determines the outcome of tribunal decisions. In this regard, I support what I take to be the proposals of the noble Lord, Lord Goodhart, that at least one, and preferably two, lay members should always sit when a tribunal decision is taken. Lay members are at least as well qualified as judicially qualified members to assess issues of credibility and it is unacceptable that only one adjudicator should undertake that responsibility.
My third concern is the lack of anything in Clause 14—or, indeed, in other parts of the Bill—to deal with matters of expedition outside the tribunal process. The biggest delays in the immigration and asylum system are those that occur between the time that an asylum seeker makes his application and the time it is determined by the Home Office. There is nothing in the Bill to impose time limits on this phase. It would be, in my submission, an enormous improvement to the operation of the system if such a provision were made.
Equally, there is no time limit imposed between the moment when the tribunal phase, and any appeals from it, is finally terminated and the moment of deportation, if, indeed, the result of the judicial process is adverse to the asylum seeker.
I sought, in my amendment, to provide a solution to this problem. I had at the time some doubts about the degree to which it fitted the Bill, and so I was not surprised to be criticised by the noble and learned Lord for it. He kindly sent me a letter on 27 April and I cannot resist quoting part of the final paragraph to the Committee. The noble and learned Lord stated:
"In particular, it is meaningless for the tribunal to set a date—
I say, parenthetically, that I sought in my amendment to set a fixed date after the tribunal decision was made for a person to be deported if the tribunal decision was adverse. I repeat:
"In particular, it is meaningless for the tribunal to set a date, as a person may assert there is new evidence that has come to light and needs to be considered, otherwise their removal is unlawful. The claim of new evidence can be made by way of judicial review against the removal directions or in further representations to the IND who have to make a decision on new evidence".
I accept that my amendment was imperfect; but I do not accept that it is beyond our joint abilities and imagination to find a statutory solution to this problem. We opposed the ouster clause; but we support a general approach to these matters that sets in place a statutory regime which covers all eventualities in the immigration and asylum system.
I understand what the Government are saying to me—that judicial review is inevitable at the deportation stage and there is nothing we can do about it. The Government have certainly said nothing about the deportation stage in the Bill. It is almost inevitable that every decision by the statutory system which results in deportation will, in a very high number of cases, lead to a further judicial review when the moment for deportation arrives. Surely it is much better to devise a scheme within the Bill which covers all the issues likely to arise on deportation by 1017 Asylum and

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statutory measures. In that way, judicial review will become otiose. Otherwise, all the problems that all political parties have been concerned with, over all these years, will re-emerge in the old way.
I shall be most interested to hear from the noble and learned Lord the Lord Chancellor whether the Government, having thought further about the matter, propose to introduce an amendment on Report which would draw all these deportation issues into the mainstream of their statutory approach. Perhaps the statistics exist and I have negligently overlooked them; but I would be interested to know whether there are any which establish the ratio between the number of orders made for deportation and the number of individuals who have actually been deported. I do not know whether those statistics exist, but if they do, it is important that your Lordships are made aware of them.
I find myself in some difficulty over the question of five days. In my amendment I recommended that the time period should be seven days, which is not a great deal longer than five. I understand the arguments about a longer period; perhaps the matter ought to be further canvassed on Report. But I, for my part, think the period should be short—whether it is five, seven or 10 days can be a matter for further investigation.
As to the point about legal aid, I respectfully share the view expressed by the noble Lord, Lord Goodhart, which I seek to summarise—I hope not incorrectly, but, I am sure, inadequately—by saying that if an advocate were reasonably satisfied that there were reasonably arguable grounds for believing that an error of law had been made, then that, in principle, ought to be enough to ensure a grant of legal aid.
While I support the efforts of the noble and learned Lord the Lord Chancellor to remove wholly inappropriate cases from the scene by limiting legal aid, nevertheless it is, in my submission, important for your Lordships to bear it in mind that at the end of the day, for some of these individuals, the decision whether or not they go home is a matter of life and death. Given that that is the background, I think that the Government ought, on balance, to err on the side of generosity in dealing with legal aid. However, we shall return to that on Report.
In the mean time, I should like to say, once again, that in broad terms the Opposition support the Government's amendment.
Lord Ackner: Before the noble Lord sits down, could he help me on one point which he has made? I take his point that there should not be a tribunal of one; I accept that the tribunal should consist of three people. However, he also said that the tribunal might consist of two. Does he agree that that would open up a new danger?
I have always taken the view that a tribunal of two is very unsatisfactory. The risk of a compromise decision. which is an undesirable decision, is always on the cards. If you sit as a tribunal of two and are the more senior of the two, you go through a period of anxiety wondering whether your colleague might
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suddenly roar off on a frolic of his own and how on earth to get him back. I ask the noble Lord to reconsider his choice of two as appropriate.
Lord Kingsland: I have, on occasions, appeared in front of tribunals of two, both at the Divisional Court and Court of Appeal level. In most cases, since both judges were against me, the addition of a third person would have been academic.
I, of course, agree with the noble and learned Lord about the desirability of a tribunal of three. The only reason that I suggested a tribunal of two was to try to help the noble and learned Lord the Lord Chancellor on this issue. I understand that sometimes immigration and appeals tribunals sit as tribunals of two, with one legally qualified and one lay member. I know that one aspect of the Bill that the noble and learned Lord the Lord Chancellor will be bearing in mind is that of cost. I was trying to help him in coming to a view about what I regard as an extremely important matter by saying that it might, in certain circumstances, be acceptable to have a tribunal of two. I am trying to avoid a tribunal of one; but I of course, accept that in an ideal world, the number is three.
5p.m.
Lord Falconer of Thoroton: I am very grateful for the welcome from all sides of the Committee for our proposals to amend Clause 14. I am also very grateful for the many constructive points that have been made. Although this is similar to a Second Reading debate in some respects, I think it is right that I should reply in detail, without taking too much time on the individual points made.
The noble Lord, Lord Goodhart, asked why there was a difference between the legal qualifications required for the single-tier tribunal and that which was in place under the Nationality, Immigration and Asylum Act 2002. He rightly drew attention to the fact that the requirement for legal qualification was not there before, whereas it is now. However, the Bill provides that, for someone to be a member of the single-tier tribunal, the equivalent of seven years' legal qualification can also be sufficient. The reason is that we think in very many cases, contrary to what the noble Lord, Lord Kingsland, suggests, some decisions made by the single-tier tribunal will be decided by a member of the tribunal sitting alone. We therefore think that the higher qualification level should be set.
The noble Lord, Lord Goodhart, also asked what is meant by an error of law for the purposes of the statutory review. It is the same as is meant by "error of law" in Section 101 of the 2002 Act—not point of law, but error of law. That is the approach that is currently taken in relation to statutory review. It allows the statutory reviewers in effect to apply the same approach in determining whether there is a relevant error of law, as would be applied in relation to judicial review.
I rather agree with the noble and learned Lord, Lord Donaldson of Lymington, that it would be unwise to try to be too precise in the definition. However, could it include lack of jurisdiction? Could

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it include failing to apply the rules of natural justice? Could it include having no evidence at all on which the conclusion could have been reached? Yes, it plainly could—all those factors would be regarded as errors of law. The distinction that we have sought to draw is that statutory review is based on a legal error, not simply an attempt to re-hear the facts again a second time. That distinction is well understood.
On the five-day period, in the majority of cases, legal aid will have been available to the applicant in relation to the conclusion of the hearing before the single tier. That legal aid would include a determination of whether there were any grounds for appeal. Five days will mean five working days, so there will be a week within which lawyers can consider whether there has been an error that justifies an application for statutory review. We believe that that is sufficient, because there is specific provision in the amendment for extensions of time to be granted when it is not reasonably practicable to put in the notice.
The five-day period begins when the appellant or applicant receives notice of the determination. I take the point about the post, but all such matters can be dealt with in the tribunal's discretion. We think that a short time limit is very important because these matters should be dealt with with reasonable expedition. In effect, it will be for the High Court or the filter to determine whether the five-day limit proves to be adequate, but we think that it will.
Reconsideration by three members of the tribunal was mentioned by several of your Lordships. If statutory review is granted and remitted to be heard, who should hear it? Should it be heard by the same individual who heard it before, should it always be heard by a different tribunal, or should there always be more than one member on the rehearing tribunal? The answer will depend on the circumstances in each case.
The president of the single tier has the power to direct whether there should be a reconsideration. If the statutory review indicates that a hearing should be by a different tribunal, then so be it. If he or she indicates that it should be heard by a tribunal sitting with more than one member then, almost invariably, the president of the tribunal will comply or follow that recommendation. If the president thinks that something else should happen, he can determine that. I do not think it would be right to say that it must be one or the other, such as, "It must always be a different tribunal" or, "There must always be three members". That would not be appropriate. It would not lead to the most just or expeditious result.
What we are aiming for in relation to the costs regime is some appropriate measure that ensures that only meritorious cases get legal aid. If there is no win or no near-miss, then there is no fee. Who will determine whether that is the position? It will be determined by the person at the end of the process who sees all the material. In effect, it will not be the Legal Services Commission—some body that is in some way related to the Government—but independent judges who will determine where the line is to be drawn.
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I agree that we need to debate quite carefully how we define "near-miss". We are not that far apart in the House. The measure is intended to deal with those cases that have a sufficiently high degree of success to justify support being given. However, that support will be given at the end and I recognise that risks will be taken. Contrary to what the noble Lord, Lord Goodhart, said, I take the view that we may well need to consider success fees for those who are successful because there must be enough good lawyers in the field to ensure that every meritorious claim will receive representation.
Lord Goodhart: Since the matter can go back to the tribunal for reconsideration only after a High Court judge has taken the view that he thinks—or, if the provision is amended as we have suggested, that there is at least a good arguable case—that there has been an error of law, is that not enough on its own to justify extending legal aid to the application when the case goes back to the tribunal for reconsideration?
Lord Falconer of Thoroton: I accept the implicit premise in the noble Lord's point. Plainly, in ordering reconsideration, the High Court is bound to be setting the test lower than one that it is bound to win and there must be some degree of arguability about it. However, that does not lead to the conclusion that the moment one gets past that point one immediately gets legal aid. It may often be apparent that, even though an error of law can be identified, if the facts are re-examined, the case still has little merit. I do not say for one moment that that would happen in every case. However, we could frequently be in possession of facts that broadly indicate that time has been wasted in relation to an application.
I am not saying that that is the position in every case. However, an error of law could be identified because the wrong test was applied. If one knew from all the facts available that, even if the right test were applied, there would be little prospect of the application being granted, should public money be spent on that sort of claim? I believe that it should not.
Lord Clinton-Davis: Is what the noble and learned Lord advocates totally unprecedented, or can he point to some example of the provision being applied?
Lord Falconer of Thoroton: Several examples could be provided. The proposal was first put to the Government by the judges. It was their proposal because they were keen to ensure that there was a sufficient degree of filter on cases. The original example given was in relation to criminal appeals where the Court of Appeal Criminal Division makes decisions in relation to criminal legal aid. That is not a direct parallel because, although there are similarities,

1021
it is not completely the same. However, whether the scheme works depends on the judgments that have been made to ensure that enough people are in the field. I believe that the judges would be right. Sufficient discretion will be given to ensure that the flow of legal aid is focused on the winning cases and on those cases that do not win but were sufficiently meritorious to justify consideration at another level.
Amendment No. 58 relates to giving some tribunal decisions authoritative status—that they would be binding on other tribunal decisions. That is a sensible and right approach. It allows certain decisions to be binding in other tribunals to ensure consistency in relation to practice in law. If there is an issue about whether the decision is right, either new facts could be presented or there could be an appeal to the Court of Appeal.
I agree with all those who said that there should also be improvements to the way in which the original decisions are made. As noble Lords know, the Government are committed to much higher-quality asylum decisions at all stages. This is not the time to go through the list of provisions, but they include setting specific targets for decision quality, introducing quality assurance systems involving internal and external assessment, enhanced training and other such matters. We all accept the need for the highest possible decision-making at the IND stage. However, that is not t reason for not dealing with the appeal arrangements, or the relationships between the appeal arrangements and the High Court.
My noble friend Lord Clinton-Davis mentioned the latest proposals. It is important to recognise that the Leggatt report did not propose a one-size-fits-all approach for asylum where there is incentive to delay. It is important to design a system for the needs of this particular jurisdiction. The arrangements that are now being put forward do precisely that.
I have considered the points made by the noble Lord, Lord Thomas of Gresford. He is concerned about the error of law, which I have dealt with. He believes that matters should always be dealt with by a different member of the single tier. I dealt with that by saying that everything will depend on the facts.
The right reverend Prelate the Bishop of Newcastle mentioned the five-day appeal period, "no win, no fee" and good decision-making, with which I have already dealt. He also mentioned written submissions. He asked whether the statutory reviewer should have the opportunity to order an oral hearing. That issue also has been discussed with the judiciary. The statutory review process currently does not involve that. We believe that the most effective system to balance justice and reasonable expedition is that which allows for cases to be dealt with on the papers. If further submissions are required they can be dealt with by the body to which the matter is remitted.
The noble and learned Lord, Lord Donaldson, raised the issue of errors of law. I have already addressed that. I have also addressed the issue of
1022
remission. He opposes the idea of Amendment No. 58, but I think that it is a good and sensible course. Consistency in these matters is quite important.
Lord Donaldson of Lymington: On the question of remission, it is clear that I took one view and the noble Lord, Lord Goodhart, took another as to what was meant by reconsideration. Perhaps the noble and learned Lord would like to give us some assurance that that will be looked at with a view to making it quite clear that his flexible approach will be open.
Lord Falconer of Thoroton: I certainly agree to make sure that that is made clear in the most appropriate way—which may be by including it in the rules rather than placing it on the face of the Bill.
The noble and learned Lord, Lord Mackay, raised the issue of the five-day time limit. I think I have addressed that issue. He also raised the issue of legal aid in Scotland. He is absolutely right that legal aid is a devolved matter. It is therefore not for your Lordships' House to determine what happens in relation to legal aid in Scotland. My understanding of the position of the Scottish Executive is that it would like as much as possible to follow the approach that England takes to legal aid and asylum cases, although, obviously, to do so consistently with the provisions of all their relevant legislation.
The noble and learned Lord, Lord Mackay, referred also to written submissions, reasons for remission, filter mechanisms and the authoritative decision of the tribunal. I think that I have dealt with each of those points. He made an additional point in noting that the amendments provide for only one remission. That is absolutely right. We believe that a balance has to be struck between ensuring that there is proper jurisdiction while not allowing an endless series of loops round and round the system.
Lord Mackay of Clashfern: I believe the amendment says that one application, not one remission, is allowed. However, the point is really the same. I can see the force of that, hut the situation could change on a rehearing. I just wonder whether that is completely fair and whether it might not be wise at least to consider that.
Lord Falconer of Thoroton: I will certainly consider it. However, I am sure that the noble and learned Lord can see the balance that we are seeking to strike by allowing only one application. He is right; I stand entirely corrected in that respect.
In answer to the noble Baroness, Lady Carnegy of Lour, our intention is not to say that a different time limit would apply in different parts of the United Kingdom. We recognise, however, that there is a very strong possibility that there could be certain categories of case where a different time limit might apply. The category we have in mind consists of cases where the applicants are detained, legal advice is effectively available to them round the clock and special fast-track procedures have been applied. The answer to the basic point is that we would not envisage different times for different parts of the country.

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I am grateful to the noble Lord, Lord Kingsland, for his welcome for the proposals. I have dealt with his points on errors of law and transition. I hope that I have made it clear that I do not agree that every tribunal hearing should be conducted by three people. I do not believe that that provides the right degree of flexibility or is the right approach to the tribunal. I do not accept the implication that it would be good to have laymen sitting on the tribunal. I think that our proposal will make for a fair but expeditious arrangement.
Lord Kingsland: I am astonished to hear the noble and learned Lord the Lord Chancellor say that. The biggest single criticism of the way in which the system works at the moment is the unevenness of the adjudicator decision. If one has a single lawyer sitting at the tribunal level, all one is doing is replicating the adjudicator system.
The fundamental issue in most of these cases is that of credibility, which is an issue of fact; in my submission, the noble and learned Lords needs at least two people in order to make the system secure. There is no appeal from the decision of this tribunal excepting on the basis of an error of law. The issue of credibility is not covered by that. I am astonished at the noble and learned Lord the Lord Chancellor's reaction, and dismayed that he intends to continue with the adjudicator system in the disguise of a tribunal.
Lord Falconer of Thoroton: I have complete confidence that judges sitting alone, which will include those in the single tier, are well able to form judgments on facts.
I think that that deals with every point that has been raised. I therefore commend Amendment No. 46A to the Committee.
On Question, amendment agreed to.
[Amendment No. 47 not moved.]
Lord Falconer of Thoroton moved Amendment No. 47A:
Page 16, line 19, at end insert—
"(9) The Lord Chancellor may by order vary a period specified in—

(a) section 103A(3)(a), (b) or (c) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (review of Tribunal's decision) (as inserted by subsection (6) above), or

(b) paragraph 30(5)(6) of Schedule 2 to this Act.

(10) An order under subsection (9)—

(a) may make provision generally or only for specified cases or circumstances,

(b) may make different provision for different cases or circumstances,

(c) shall be made by statutory instrument, and

(d) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

1024
(11) Before making an order under subsection (9) the Lord Chancellor shall consult—

(a) the Lord Chief Justice, if the order affects proceedings in England and Wales,

(b) the Lord President of the Court of Session, if the order affects proceedings in Scotland, and

(c) the Lord Chief Justice of Northern Ireland, if the order affects proceedings in Northern Ireland."

On Question, amendment agreed to.
Clause 14, as amended, agreed to.
[Amendments Nos. 48 and 49 not moved.]
Schedule 1 [New Schedule 4 to the Nationality, Immigration and Asylum Act 2002]:
[Amendment No. 50 not moved.]
Schedule 1 agreed to.
Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Falconer of Thoroton moved Amendment No. 50A:
Page 34, leave out lines 6 to 12.
On Question, amendment agreed to.
[Amendment No. 51 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 52 to 59:
Page 35, leave out line 42 and insert—
"(b) for subsections (3) to (5) substitute—
"(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c. 41) shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82 or 83 of that Act—

(a) section 103A (review),

(b) section 103B (further appeal),

(c) section 106 (rules), and

(d) section 107 (practice directions).", and.

(c) omit subsections (6) and (7)."
Page 38, leave out lines 23 and 24 and insert "—

(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c) an appeal has been remitted to the Tribunal and is awaiting determination,

(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e) an appeal under section 103E or 103E is awaiting determination, or

(f) a reference under section 103C is awaiting determination.", and"

Page 38, line 27, leave out "105A"." and insert "103A"."

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Page 38, line 31, leave out "a review under section 105A has been requested and not completed."," and insert "—

(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c) an appeal has been remitted to the Tribunal and is awaiting determination,

(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e) an appeal under section 103B or 103E is awaiting determination, or

(f) a reference under section 103C is awaiting determination.","

Page 39, leave out lines 30 to 41 and insert—

"(w) may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);

(x) shall provide that a party to an appeal is to be treated as having received notice of the Tribunal's decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;

(y) may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal);"

Page 39, line 48, leave out "or a request for a review"
Page 40, leave out lines 7 to 11 and insert "require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter."
Page 41, line 14, at end insert—
30 (1) This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made'—

(a) during the period beginning with commencement and ending with such date as may be appointed by order of the Lord Chancellor, and

(b) during any such later period as may be appointed by order of the Lord Chancellor.

(2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (c.41) (inserted by Schedule 1 above)).
(3) For the purposes of sub-paragraph (2)—

(a) references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application,

(b) rules of court made for the purpose of section 103A(4)(a) in relation to the court to which an application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and

(c) section 103A(6) shall be subject to sub-paragraph (5) below.

(4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph'—

(a) he may make an order under section 103A(1) or grant permission under section 103A(4)(b), and

(b) if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant.

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(5) Where notice is given under sub-paragraph (4)(b)—

(a) the applicant may notify the appropriate court that he wishes the court to consider his application under section 103A(l) or 103A(4)(b),

(b) the notification must be given within the period of 5 days beginning with the date on which the applicant is treated, in accordance with rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (C. 41), as receiving the notice under sub-paragraph (4)(b) above, and

(c) the appropriate court shall consider the application under section 103A(1) or 103A(4)(b) if—

(i) the applicant has given notice in accordance with paragraphs (a) and (b) above. or

(ii) the applicant has given notice under paragraph (a) above outside the period specified in paragraph (b) above, but the appropriate court concludes that the application should be considered on the grounds that the notice could not reasonably practicably have been given within that period.

(6) Rules of court may specify days to be disregarded in applying sub-paragraph (5)(b).
(7) A member of the Tribunal considering an application under section 103A(1) by virtue of this paragraph may not make a reference under section 103C.
(8) An order under sub-paragraph (1)(a) or (b)—

(a) shall be made by statutory instrument,

(b) shall not be made unless the Lord Chancellor has consulted such persons as he thinks appropriate, and

(c) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
House resumed: Bill reported with amendments.

Iraq: Treatment of Prisoners
5.17p.m.
Lord Bach: My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Minister for the Armed Forces in another place earlier this afternoon. The Statement is as follows:
"I am grateful for this opportunity to speak to the House following the serious allegations that have been made in recent days about the conduct of some British soldiers in Iraq.
"Any decent thinking person will have been disturbed by photographs published in the Daily Mirror on Saturday which appear to show the mistreatment of Iraqi prisoners by British soldiers.
"From the outset, we have taken the allegations seriously and taken the photographs at face value and will continue to do so unless there is evidence to the contrary. The Special Investigation Branch of the Royal Military Police was immediately informed, and an investigation was launched.
"The Royal Military Police Special Investigation Branch teams are currently following up lines of inquiry in Iraq, in the UK and in Cyprus, where the

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1st Battalion, the Queen's Lancashire Regiment, is currently based. Investigating officers are in touch with the Daily Mirror, to see what further information it has that might help get to the bottom of the incident. To date, the Daily Mirror has handed over a total of some 20 photographs.
"It would be wrong for me to speculate about the outcome of this investigation, which must be allowed to take its course. As right honourable and honourable Members will be aware, it is not appropriate for Ministers to intervene with police investigations. I can assure the House, however, that if British soldiers are found to have acted unlawfully, then appropriate action will be taken. But our immediate priority is to establish the truth as quickly as possible. That is why I would urge individuals with relevant information to come forward. We are determined to leave no stone unturned.
"The House will know that a number of other allegations have been made concerning the treatment of Iraqi prisoners and Iraqi civilians, some of which have resulted in fatalities. These are also serious matters which, where necessary, are being thoroughly investigated. There have been suggestions that such investigations are not being pursued properly or are unduly slow. This is unfair to investigating personnel. Many of these investigations require detailed work to be undertaken in difficult and often dangerous circumstances. They cannot and should not be rushed. I am confident that they are being carried out properly. It is my intention to release as much further detail on all of these incidents as possible, bearing in mind the rights of all those involved. It would be quite wrong to prejudice this process by applying undue pressure for haste or, indeed, to point the finger of guilt outside the due process of law.
"The Daily Mirror article will have caused some people to question the integrity of British soldiers and the validity of their mission in Iraq. Thousands of service personnel have served in Iraq over the past 14 months. They have done an exceptional job in testing circumstances, and in turn have secured the support of the majority of Iraqis. I hope that right honourable and honourable Members will join me in paying tribute to the superb work that our Armed Forces are doing both in Iraq and elsewhere around the world. While treating these allegations with full seriousness, we should not allow them to colour our judgment of the quality or integrity of our troops, or of the Army as a whole.
"Very grave allegations have been made. They challenge the reputation of the British Army here, in Iraq and elsewhere. We must ascertain the truth or otherwise. At best such allegations undermine the excellent work that our Armed Forces are doing under the most difficult conditions today in Iraq. They undermine the progress that we have made with our coalition partners in moving Iraq forward from the tyranny that the Iraqi people suffered under Saddam Hussein. Our forces serve with distinction throughout the world, whether in Iraq, Afghanistan, Sierra Leone, the Balkans, Northern
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Ireland or elsewhere. Their achievements and professionalism are rightly praised worldwide. That is why we must establish the truth or otherwise of these allegations".
My Lords, that concludes the Statement.
5.22p.m.
Lord Astor of Hever: My Lords, I thank the Minister for repeating the Statement. The allegations in the Daily Mirror are extremely serious. This is a public relations catastrophe. The damage caused by the photographs continues to do untold damage to the coalition's image and will put the lives of British soldiers serving in Iraq at even greater risk.
These allegations must, of course, be thoroughly and very swiftly investigated, but they are the more shocking because of the outstanding reputation of the British Armed Forces not only for their remarkable war fighting capabilities but also for their abiding humanity and decency in peacekeeping operations. I have no hesitation in joining Her Majesty's Government in paying tribute to the superb work that our Armed Forces are doing in Iraq and elsewhere.
A very great deal is expected of our soldiers. They are required, sometimes, to deploy on operations that are extremely dangerous, to obey orders which may put their lives at risk, and to live and work for long periods under the most challenging conditions.
This House, the country and the media need to understand that military service is like no other in the demands that it places on individuals. Soldiers exist to engage in war, and war places unique demands on them. They overcome these challenges only if morale, discipline and training are of the highest order. From every soldier is demanded exceptional levels of commitment, self-sacrifice and mutual trust. We therefore support the most vigorous and detailed investigations to restore the good name of the British Army.
I should be grateful if the Minister could clarify the following. What representation has his department received from Bertrand Ramcharan, the acting United Nations High Commissioner for Human Rights, regarding the alleged abuses of Iraqi prisoners by British forces in Iraq? Has his department's investigation been able to confirm the authenticity of the photographs published by the Daily Mirror? Military analysts have expressed reservations. They do look very contrived, as does the timing of these allegations straight after reports of American ill-treatment of prisoners. Indeed, there is speculation that these images may be a dangerous hoax.
When were the specific incidents alleged to have taken place? How many alleged incidents of the abuse of Iraqi prisoners by British soldiers were reported to senior officers at that time? Finally, is the Minister satisfied with the training given to our troops for the handling of detainees prior to deployment and when they are in theatre?
The allegations centre around the Queen's Lancashire Regiment. This regiment is over 300 years old and carries more battle honours on its regimental

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colours than any other infantry regiment of the line. In the recent campaign in Iraq its commanding officer was awarded the DSO. The RSM was awarded the Military Cross and the regiment received several distinctions. If wrong has been done, then clearly it must immediately be dealt with. But let this House and the wider country keep in perspective 300 years of the most loyal and distinguished service to the Crown and the nation.
5.26p.m.
Lord Redesdale: My Lords, I, too, wish to thank the Minister for repeating the Statement. It is important that the veracity of the photographs is ascertained. However, the damage has already been done in publishing the photographs. They have been flashed round the world and the smear on the British Army's reputation—a reputation so hard won—has already occurred in the minds of many. In that respect the photographs have lost some of the hearts and minds that have been won over.
Although I speak only in my own right, I question the veracity of the photographs. The American photographs were taken as trophy photographs. The American soldiers were not scared to show their faces. Those photographs were taken to show those American soldiers committing horrendous acts. However, the soldiers in the photographs that we are discussing, despite the question marks regarding their uniforms, were photographed in such a pose that their identity was hidden, which is slightly strange. Many trophy photographs are taken by soldiers in the field, for example, in Basra, although obviously not in such a situation as the one that we are discussing. However, that is a question that has to be answered.
I refer to the pristine state of the uniforms in the photographs. Having served in such uniform, I know that it is incredibly difficult to keep it in such a pristine state. Anyone who had been involved in the activity in which it was alleged the British soldiers in the photographs had been involved could not have kept the uniform in such a pressed state.
The work of British soldiers abroad is of the highest standard. However, the MoD stated recently that the European Convention on Human Rights does not apply to soldiers in Iraq. Can that really be the case, and should it be the case, especially after the questions being asked about other outstanding cases, which I shall not raise today but which are obviously being processed under the due process of law? As the UK has signed up to the European Convention on Human Rights, is it not the case, as many courts believe, that the agents of the state are bound by the rules of the convention wherever they act for the state?
However these photographs are to be viewed, they have made the work of British soldiers in southern Iraq even more dangerous than it was previously. Noble Lords on these Benches support that work which is necessary. We hope very much that the consequences of the publication of these photographs will not be the loss of British life.
5.29p.m.
Lord Bach: My Lords, I am very grateful to both noble Lords for their support. There is very little with which I could disagree in what they said, and the House would feel the same way. I told noble Lords that I was briefly in Iraq last week and in Basra last Wednesday. Like everyone else who has been there, including many Members of this House and the other place, I was immensely and immediately impressed by the conduct of the British troops whom I came across. They have an incredibly difficult task and, from what I saw, perform it with skill, humour and understanding, and are indeed a credit to this country.
I shall come to the questions in a moment, but I shall make a point that both noble Lords made without stating it obviously. The matter is serious either way. If the allegation made in the Daily Mirror is proved, it speaks for itself how serious that is for the reputation that the British Armed Forces enjoy—rightly, in my view. Of course I shall not comment on whether the photographs are authentic, but if it turns out that they are not, that is pretty serious for all kinds of reasons, not least that it will potentially have put British lives at risk.
I am not aware of any representations made from the relevant United Nations official, but I shall check that out for the noble Lord and let him know. I stress that the authenticity is absolutely a matter for the Special Investigations Branch, which along with others is looking into the issue at present.
I reassure the noble Lord and the House that all in the Armed Forces are given thorough mandatory training courses, which include specific guidance on handling prisoners of war. All personnel must attend refresher training every year. The House will not be surprised to hear that, before going to Iraq, all personnel are briefed on the rules of engagement and on procedures for dealing with prisoners of war and other detainees. It may not be so widely known that each combat unit is required to have eight senior noncommissioned officers trained in handling prisoners of war. Units responsible for the routine handling of detainees conduct further specialist training.
I was delighted by what the noble Lord, Lord Astor, said about the Queen's Lancashire Regiment. Indeed, it has a very proud history, as was well said in this House and earlier this afternoon in another place.
I hear with interest the view of the noble Lord, Lord Redesdale, on authenticity. He will forgive me if I do not comment on it; he would not expect me to. The Ministry of Defence has given some attention to human rights legislation. It is our belief that. strictly speaking in law, it does not apply in Iraq. Whether it does or not may one day be tested. The important point to make is that the Armed Forces are fully aware of their obligations under international law, and training in the Geneva Convention is given to soldiers. The suggestion made in some quarters that our troops are not subject to the rule of law is not true; CPA order 17 sets out the jurisdiction that applies to the personnel of the multinational force and others. UK personnel are subject to UK law, as they would be in the United Kingdom.

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Even at this early stage, this episode tells us how important it is for there to be caution and good, sensible comment on all sides, rather than for anyone to rush to judgment.
5.35 p.m.
Baroness Trumpington: My Lords, would the Minister agree that the editor of the Daily Mirror must be either the stupidest or the most avaricious man alive to have published the photographs in question, whether they be real or fake? Will he tell me whether the soldiers who are alleged to have taken the photographs were paid? Bearing in mind the damage that the editor may have inflicted on allied captives in future, will the Minister tell me whether the law permits him to be charged with an offence?
Lord Bach: My Lords, I understand the strong feelings expressed in those questions, but I am afraid that I am not able to make any comment on them from the Dispatch Box. We very much hope that the Daily Mirror will give the investigators the fullest co-operation. Indeed, the leader in that newspaper last Saturday stated that,
"for the sake of the British Army's reputation and the integrity of every decent member of our forces, those who carried out this and other savage acts must be court-martialled".
Those are sentiments that we can all understand. However, the newspaper claims to know the identity of one of the attackers and says that he and a colleague provided the photographs. That information has been the basis for the allegations on which the noble Baroness commented.
Nevertheless, the Mirror appears intent on protecting the identities of its informants because the soldiers fear reprisals by the Army. That is not a concept that I understand very clearly in this context, or at all. I have every confidence, as I suspect that the House will, that anyone who has relevant information will be treated fairly and lawfully, and that his or her rights will be fully respected. We hope that the Mirror will reconsider its position on that matter and assist the investigating authorities in getting to the bottom of the allegations as quickly as possible.
The Lord Bishop of Oxford: My Lords, those of us who served in Her Majesty's Armed Forces, have had contact with them over the years and know the very high standards inculcated—standards that we have experienced ourselves—find the allegations extremely difficult to believe. Nevertheless, we live in a very wicked world and, as my friend, the right reverend Prelate the Bishop of Worcester, reminded me, war brutalises. I very much welcome the Government's Statement that our immediate priority is to establish the truth as quickly as possible.
If, as I very much hope, the allegations are discovered to be unfounded, will Her Majesty's Government think seriously about what can be done to rehabilitate the reputation of the regiment concerned? If, very sadly, they are discovered to be well founded, will there be wider lessons to learn from them? It will not be enough simply
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to court-martial a few soldiers. Something fundamental will have gone wrong with the whole system of checking and training, and that will need to be looked into.
Lord Bach: My Lords, I am grateful to the right reverend Prelate for what he said; no one could disagree with his comments. However, he will understand that I am not really in a position to answer his questions. If the allegations are proved, that will be a serious matter that of course goes beyond the regiment in question.
Lord Wright of Richmond: My Lords, as one who has been very critical from the beginning of our decision to go to war in Iraq, I nevertheless endorse very warmly the tributes paid to the performance of our troops. I am afraid that the noble Lord, Lord Redesdale, is right in saying that, whether the photographs are proved to be fakes or genuine, the damage has been done—very serious damage in the Middle East. I was originally going to ask precisely the question asked by the noble Baroness, Lady Trumpington. The House should be told whether the Daily Mirror paid for the photographs.
Lord Bach: My Lords, I am grateful to the noble Lord, who has vast experience in the Middle East. I was in Jordan before going to Iraq last week and learnt a lot. I dare say that if I had been there after the photographs had been shown, I would have learnt a lot more. The question of whether the Daily Mirror paid money to whoever provided it with the photographs is of equal fascination to me, but I am not in a position to be able to answer it.
Lord Gilbert: My Lords, has it been drawn to my noble friend's attention that the wording used on the front page of this morning's Daily Mirror and the wording used in several BBC programmes over the weekend made it clear that in the eyes of the people responsible for those programmes the charges have already been proved? It is not a scandal that language of that sort should be used and will my noble friend make representations to the chairman of the BBC and the editor of the Daily Mirror to that effect? Will he tell us what response he receives?
Lord Bach: My Lords, it was for precisely that reason that I said at the end of my reply to my fellow Front Benchers opposite that we all need to approach this matter with considerable caution and care—and perhaps that includes particularly the press and the media. Of course I have seen the Daily Mirror headline today. I have not had the pleasure of listening to what the BBC has said about the matter today, although I listened to it over the weekend. What I can say to my noble friend is that I will take back his request and see what can be done.
Lord Avebury: My Lords, can the Minister clarify matters regarding prisoners of war? In the articles in the Daily Mirror it was alleged that the individuals who had been ill-treated had been arrested on ordinary

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criminal charges and that they were not handed over to the Iraqi police because they knew that they would immediately be released. Can the noble Lord say what instructions have been given to the forces about people who have been arrested since the cessation of hostilities, who, presumably, he would not classify as prisoners of war?
Does the Minister not think that, irrespective of the outcome of the investigations that are now being conducted, there should be some independent authority to which Iraqi civilians could complain when there are allegations of ill-treatment by coalition forces? Will the Minister reply to the suggestion that I made on 20 April, before this matter blew up, that we should consult our allies on the possibility of inviting an independent authority, appointed under Article 90 of Protocol 1 of the Geneva Conventions, to go to Iraq and conduct an independent international investigation of any allegations that have been made against either the British or the American coalition forces?
Lord Bach: My Lords, I am not sure that I did use the expression "prisoners of war".
Lord Avebury: The noble Lord did, my Lords.
Lord Bach: My Lords, if I did then I accept what the noble Lord is saying—that we are not talking just about prisoners of war but about Iraqi citizens who are in the custody of the coalition forces. I understand that. Regarding all of the questions and points raised by the noble Lord as to how we might progress, I shall take them back with me and give him an answer. All of those matters are now of distinct relevance.
Lord Campbell of Alloway: My Lords, strictly speaking these are not prisoners of war because they can be referred to as such only if there has been a formal declaration of war between states. In such cases there is a protecting power, a neutral power who has access to the prisoners and where they are detained. That cannot be so in this case. All that can happen is, as was suggested by the noble Lord, Lord Avebury, that there should be appointed—and appointed soon—an independent power that will have the same access as a protecting power under the Geneva Conventions. That is the only way that one can cope with a situation where there are armed hostilities between those seeking to occupy and pursue peacekeeping duties and the others seeking to oppose them by arms. There must be some diplomatic effort soon to establish an independent person, body, state or arbitrator.
Lord Bach: My Lords, I am advised that we are entitled to arrest and hold people who are, in our view, a serious security threat. Internees are told of their right to have their status reviewed. An independent military body reviews the status of internees after 28 days. UK forces in turn inform the ICRC, which informs families, and a list of internees is held by the local police. As I have said, there is considerable
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training of the Armed Forces regarding their obligations under international law, not least the Geneva Conventions.
Lord Thomas of Swynnerton: My Lords, during the Second World War the Daily Mirror published a cartoon drawn by the caricaturist "Zec" showing a sailor dying on an oil ship. The Prime Minister, Churchill, summoned the general manager and the editor of the Daily Mirror, Mr Cecil Thomas, who happened to be my uncle, and told them that if that sort of thing occurred again the Daily Mirror would be closed down. Can the Minister say whether, even with the present uncertain, illegal or undefined war, any consideration has been given to the possibility of some kind of censorship?
Lord Bach: My Lords, my understanding is that the answer to that question is "no". That is certainly true of the prospect of closing down the Daily Mirror or any similar newspaper. That would be a brave, indeed foolish, course for any Government even to consider. I have to say that however difficult we may find this— which we all do; and I find it difficult to stand here and understand why the articles appeared when they did—we have to recognise that what we and our troops in Iraq and elsewhere in the world stand for is a press that says things that we do not always like.
Lord Campbell-Savours: My Lords, can we he assured that International Committee of the Red Cross personnel have total and unrestricted access at all times to all prisoners at the Basra detention centre? Can we impress upon our American coalition allies that they should allow precisely the same level of access to the ICRC at the Abu Graib prison in Baghdad?
Lord Bach: My Lords, the UK currently holds about 80 security internees in southern Iraq. Of course we have no interest in holding anyone unless they pose a serious threat to security. The noble Lord will know that the right to hold such people derives from the 4th Geneva Convention and, as I have tried to say this afternoon, we take our responsibilities very seriously under that convention. I am happy to be able to tell the noble Lord that the International Committee of the Red Cross has full and unrestricted access at the detention facilities.
Lord Campbell-Savours: My Lords, is that at all times and to all prisoners?
Lord Bach: My Lords, "full and unrestricted access" is the phrase that I have here. Whenever the ICRC asks for it, it has that access. Those are the words that I use. I would remind all noble Lords that the reason why we have to hold people at all is because our forces are so often in danger of lethal, deadly attacks. It is right and proper that we arrest those who pose such a threat. It is equally right that we allow the full access that we do.
Lord Carlisle of Bucklow: My Lords, returning to the question asked by my noble friend Lady Trumpington, I wish to ask the Minister three questions which I think that he can answer without prejudicing the outcome of this inquiry. First, in view of the obvious sensitivity of the photographs, what information, if any, was given by the Daily Mirror to the Government of its intention to publish the photographs beforehand? Secondly, what attempts have been made by the Government to obtain from the Daily Mirror the evidence on which it bases its claim of the accuracy of the photographs? Thirdly, what has been the Daily Mirror's reply?
Lord Bach: My Lords, I can certainly attempt to answer all three of the questions put by the noble Lord, Lord Carlisle. First, as I understand it, the Daily Mirror informed the Ministry of Defence of the existence of the photographs before they were published, but not very long before. The noble Lord will recall they were published in Saturday morning's edition of the newspaper. I understand that it was some time on Friday afternoon, the day before, that we were first informed. If I am wrong about that, then of course I will let him and the House know in the usual way.
Secondly, as to the investigation taking place, I think I have already said that the Special Investigation Branch of the Royal Military Police, is "in touch"—the expression I used—with the Daily Mirror, and I have already expressed our hope that the newspaper will give the fullest co-operation. As to the third question, I am afraid that it is too early to be able to tell the House whether it has given the fullest cooperation.
Lord Judd: My Lords, would my noble friend accept that many of us were deeply impressed by his words when he said that the outcome of this issue either way would be a grave and serious matter? Does he agree that ultimately stability, peace and the future of Iraq depend upon the battle for hearts and minds, and that therefore, in any security operations, only the highest exemplary standards are acceptable? Does he further agree that the message that should go out from this House today is: first, that we have nothing but unqualified respect and admiration for all those in the armed services who are determined at all times that the highest standards will be maintained; and, secondly, that anything of the kind alleged ever happening within the British services simply will not be tolerated?
Lord Bach: My Lords, I can agree with what my noble friend says. The "highest exemplary standards", to use his expression, is exactly what we expect and look for from our British Armed Forces, and that is what we receive. Of course, it would be a sad blow if these allegations were proved to be correct.
Lord King of Bridgwater: My Lords, in endorsing the warm tributes that have been paid to the general conduct of British forces in Basra and in Iraq in recent times, is not the least of their achievements that they seem to have opened up the opportunity for freedom
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of the press in Iraq, something quite unknown under Saddam Hussein? Each one of the editors of those media organisations that are now able to communicate in Iraq will learn that with such freedom comes responsibility as well. In this exceptionally dangerous and volatile situation, that responsibility clearly rests also with the editor of the Daily Mirror, to ensure that whatever information can help to reach the truth of this matter is made available, not just after prolonged legal proceedings or prolonged applications by the Government but immediately to those responsible for this investigation. The fact of these revelations has undoubtedly made the life of other British troops in that region and elsewhere more dangerous, and the editor of the Daily Mirror now has a duty to give every co-operation to that investigation.
Lord Bach: My Lords, the noble Lord speaks with huge experience on these matters. I agree with every word he said.
Earl Russell: My Lords, does the Minister agree that atrocity in war is as old as war itself? We have no reason for believing that sin is more original in this century than in others, though the means of publicising it are more ready to hand. Does he also agree that one of the things that distinguishes the great armies from the good ones is expedition and authority in dealing with this sort of thing, and that therefore, should these charges turn out to be proved, reprimands would be insufficient? Does the Minister further agree that when General Sir Michael Jackson said that anyone found guilty of such action is unfit to wear the Queen's uniform he was looking in the right direction?
Lord Bach: My Lords, again I agree exactly with what the noble Earl has said. The British Armed Forces have the respect of the world, and if these matters are proved they will be dealt with extremely seriously.

Children Bill [H.L.]
5.55 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Tordoff) in the Chair.]
Clause 1 agreed to.
The Earl of Listowel moved Amendment No. 1:
After Clause 1, insert the following new clause—
"Qualifications for Commissioner

(1) The Commissioner shall have had ten years practice as either—

(a) a residential social worker;

(b) a child psychotherapist;

(c) a health visitor;

(d) a youth worker; or

(e) a child care worker;

or equivalent professional practice in direct work with children.

(2) The Commissioner shall have had experience of professional practice in direct work with children not less than one year prior to his appointment."

The noble Earl said: The purpose of this amendment is to probe the Government on the qualification and selection of the Children's Commissioner. It has been my concern, and that of some social workers I have spoken with, as well as the Royal College of Nursing, that the commissioner should have some substantial first-hand experience of professional work directly with children. This is the assurance I am seeking from the Government in this particular amendment.
I also feel it important that the commissioner has this experience of being part of the childcare workforce, broadly speaking, over many years, and that that experience is relatively current, because we recognise—and the Government most definitely recognise—that it is in the area of the childcare workforce that we have so much to do to improve outcomes for children. Perhaps this is the point to say that, when we think about children, it is good to have the focus on children; but we must recognise that most children exist within a family, or within a caring context, where they are more or less dependent and it is essential that the carers are well-supported. Regrettably, this has not been the case so often in the past.
I am very glad, if I may say so, that my noble friends Lord Northbourne and Lady Howe, among other Peers, have put down amendments to the Bill concerning the inclusion of parents and families. In previous and recent discussions, the noble Baroness has implied—and I hope I am not misquoting her—that she regrets the fact that parents were not included more in the deliberations and consultation on this Bill, and that this is a matter she is now seeking to address.
We are short of 6,000 foster carers in England. They have not been supported in the past as they should have been. Until recently, 80 per cent of residential workers had no relevant qualification for working with perhaps the most vulnerable children in our society. In the secure estate only last week, a 15 year-old boy was killed following control and restraint intervention at the Rainsbrook secure unit. There are steps forward within the secure estate and I do welcome them, but if we compare our practice in this country with that followed on the Continent we see that in most cases such a boy would not be placed in a prison in the first place, and might well find himself in a children's home where most of the practitioners would have three years' relevant qualification and training to work with such troubled young people.
When I listened to the response of the noble Lord, Lord Bassam of Brighton, in the Chamber last week to a Question on the boy's death, he said the officers working at that establishment are licensed. I thought he meant that they are licensed in childcare, but what he was actually saying was that they are licensed in the application of restraint on children. That, of course, is very important. However, prison officers dealing with 16 and 17 year-olds can be trained for nine weeks. They may then do two or three days' further training, after which the only mandatory training is in control and restraint: yet they can work with these vulnerable children. I understand that the training at Rainsbrook is similar. These examples illustrate the huge mountain we must climb as regards the childcare workforce and its neglect. There should be an assurance that whoever is charged with the post has real experience in the subject.
Perhaps I may give an example of someone who exemplifies that experience. I refer to Peter Wilson, recently retired, who for the past 10 years nurtured the YoungMinds charity dealing with the mental health of children. He trained and practised for many years as a child psychotherapist and his wife is a psychotherapist. He is totally imbued in the work. I have taken his invaluable advice on many occasions and he has instructed me on how to prioritise and choose the most important project where the interests of children are most in danger.
The commissioner needs to have that kind of experience in order to select from a range of projects presented to him those which are the most important for children. I look forward to the Minister's response and I beg to move.
6 p.m.
Baroness Walmsley: I rise to speak to Amendments Nos. 2 to 7. Amendment No. 2 seeks to involve children in the appointment of the commissioner. If the commissioner is to be someone who feels sympathetic towards children, who they will feel confident to speak to in confidence, who is able to speak to them and be understood, who uses their language and yet has credibility in their sight, children must be involved in his appointment. Experiments have been carried out by various organisations involved with children in the selection of professionals. For instance, many teachers have been appointed with the involvement of children. The NSPCC, in which I express an interest as parliamentary ambassador, has often used children to assist it in the appointment of staff. The children take the task extremely seriously and often show maturity beyond their years. Their input can be extremely valuable because sometimes they can be more perceptive than adults in getting beneath the surface that we all show at interview.
Amendments Nos. 3 to 7 relate to the appointment and terms and conditions of the commissioner. The Bill proposes that the children's commissioner is to be appointed and discharged by the Minister of State; that he will report to the Secretary of State rather than to Parliament; and that he will have his subject set by the Secretary of State. Concern has been raised that being

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answerable to Ministers will affect the independence of the children's commissioner. The Minister will know that the independence of the commissioner exercises many noble Lords.
Perhaps I may quote from the ninth report of the Joint Committee on Human Rights. It states:
"existing arrangements are insufficiently independent from Government to ensure that the rights and interests of all children in England are fully protected … independence is the key value that a Children's Commissioner would add to existing mechanisms … We favour [a commissioner] independent from but working closely with central government and other agencies".
The Government may contend, and the Minister may be about to tell us, that the Nolan principles address this concern. However, these amendments have been tabled with the aim of probing whether there is an alternative model of selection which would retain parliamentary accountability but increase independence from the Executive.
I do not propose to go into a great deal of detail about how the model might work in practice because these are probing amendments. Briefly, Amendment No. 3 proposes that the children's commissioner will be appointed not by the Secretary of State but by Her Majesty on the nomination of Parliament. Amendment No. 4 proposes that Parliament will set the terms and conditions of the commissioner. Amendment No. 5 proposes that if he resigns, he must do so in writing to Her Majesty. Amendment No. 6 proposes that he would not be removed from office by the Secretary of State but by Her Majesty after addresses from both Houses of Parliament. That would ensure that he could be dismissed only with parliamentary approval. Of course, although I have said "he", I mean "he or she".
Amendment No. 7 would mean that the Secretary of State would not control remuneration and funding. It would be done by Parliament to such an extent as may be sanctioned by the Treasury. Therefore, the system of funding would also be independent from direct ministerial control.
We have not just invented this model; it is drawn from other successful models of appointment used, for example, for the Parliamentary Commissioner for Administration, the National Audit Office and the Commissioner for Children and Young People in Scotland. The Parliamentary Commissioner for Administration is appointed by the Crown under Letters Patent on the advice of the Prime Minister. The Scottish Commissioner is appointed by the Crown on the nomination of Parliament.
The method by which Parliament would select the Children's Commissioner could be as follows, based on the National Audit Office model. That is the purest example of parliamentary accountability almost fully separated from the Executive. The chief executive of the NAO is appointed by a resolution of the Commons on a Motion which must be moved jointly by the Prime Minister and the chairman of the Public Accounts Committee. The chief executive is answerable to a non-statutory board—the Public Accounts Commission.
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This comprises the chairman of the Public Accounts Committee, the Leader of the House of Commons and seven Back-Benchers appointed by the House.
Therefore, a model such as this—I do not intend to be too prescriptive—would ensure that the appointment and the terms and conditions of the commissioner would be as independent as possible from the Executive. I hope that the amendments receive a fair wind from the Minister.
Lord Rix: In supporting Amendment No. 2 in the name of the noble Baroness, Lady Walmsley, and others, I must first declare an interest as president of the Royal Mencap Society. Furthermore, I am not certain that the amendment as currently drafted goes quite far enough. Amendment No. 2 suggests that:
"The Secretary of State must take reasonable steps to involve—(a) children".
I would have liked that to have read,
"(a) all groups of children, including those with disabilities".
Later in Schedule 1, the appointment of staff is dwelt upon. Can the Minister assure the House that there will be effective equality and disability training before such staff are allotted their various tasks?
Baroness Howe of Idlicote: I support Amendment No. 2 in particular. It is important that children are involved in what is, after all, their Bill. They should be involved in every aspect of it and certainly in the selection of the English commissioner.
Many years ago, when working for the principal of the Architectural Association School of Architecture, I discovered that students were part of the governing body and that they took part in selecting the principal of the school. In those days, that was an unusual occurrence.
Over time, there has been much more involvement of the individuals concerned with an organisation in the selection of people appointed to it. However, from the point of view of independence and its verification and the crucial need to involve children from an early age in citizenship issues, I support the amendments and that one in particular.
The Lord Bishop of Manchester: I add my voice to those who have supported the idea of children being involved in the appointment of the commissioner. However, I am aware of the difficulties and nuances which exist in appointment to any office. What do the Government have in mind in terms of guidance and training for the children who are to undertake the task?
Lord Hylton: While I understand some of the enthusiasms of noble Lords who have spoken to the amendments, I hope that the Minister will take into account the extraordinary range of ability—mental and other—and the general capacity of children to make responsible choices in such matters. We do not want to be carried away by great currents of enthusiasm; we need to consider the matter coolly and objectively.
Lord Northbourne: I agree with those who have spoken about the importance of consulting children,

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although we must not get the matter out of proportion. However, if the Government were to accept the amendment it seems to me odd that the only people to be consulted would be, on the one hand, children, and on the other, organisations; not, for example, any individual or parents who have parental responsibility and therefore frontline knowledge in relation to the child.
Baroness Howarth of Breckland: I apologise for being a few minutes late and therefore having to gather where I am in the debate and which clauses are being addressed. Perhaps someone will put me right if I find myself in the wrong place.
I have some concerns about the suggested amendment in relation to the appointment of the commissioner, possibly by Her Majesty the Queen. One of the things that has always concerned me about the existing commissioners and the present suggestions is the accountability of commissioners. I have not been able to work out to whom the Welsh commissioner is accountable. I have always thought that it might be more appropriate that commissioners worked to perhaps a non-departmental public body or a board of some kind.
I have concerns about placing so much emphasis—and faith, if you like—in one individual. I have had experience recently—and much in the past—where people appointed to very senior positions have not always turned out to be what one expected. Therefore I believe that the accountability needs to be to the Secretary of State, which may be unpopular with some of my voluntary colleagues. Such accountability will ensure that, should there be difficulties, that person can quickly be held to account; whereas in other circumstances if it comes through a parliamentary discussion, if the matter has to come back to Parliament twice as the amendment appears to imply—I may have misunderstood—it could take a length of time that could bring the institution into disrepute.
I have seen another organisation where that happened; where the whole organisation was brought into disrepute. While I am on my feet I add that I hope we will find a proper way of consulting children and young people. Can we also say "young people"? Adolescents perpetually find themselves out of the loop, not receiving the general concern and emphasis, and on the whole they do not like to be called children; they like to be called young people. On the whole we are likely to be consulting young people rather than small children, because they are likely to be able to make an assessment and take part in such an appointment system.
I am sure that we will find a way in which that can happen properly and proportionately, but I have reservations about accountability.
Lord Puttnam: I rise on behalf of these Benches. I added my name to Amendment No. 2 and I declare an interest as president of UNICEF UK, one of the organisations that will undoubtedly be involved in any such discussions with the commissioner.
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I want to make a more general point. The creation of a Children's Commissioner is a welcome move, for which people have lobbied for a long time. It is the second time in my brief career in your Lordships' House that I have been involved in such a situation. The previous time was over the formation of the General Teaching Council, for which I drew the long or short straw—depending on one's point of view—as the inaugural chair.
I chaired that organisation for two years and discovered the hard way that if one does not get the detail right in the creation of an organisation, no matter how welcome and acclaimed it might be, it can create impossible problems later. The General Teaching Council has suffered immeasurably from the poor legislation that was allowed to slip through the House six years ago. I shall be on my feet frequently during the next couple of sittings of the Committee to make that point. There are a number of ways in which this legislation could be improved. I welcome it enormously and I hope that I do not make a nuisance of myself. I am extremely keen that the same mistakes are not made twice.
6.15 p.m.
Baroness Finlay of Llandaff: Like other noble Lords who have spoken I welcome the creation of a commissioner for England and the extension of the concept of the Children's Commissioner. As noble Lords are aware, a Children's Commissioner has already been in place in Wales for some time, so there is an experience to be drawn on. It is based on that that I wish to support Amendments Nos. 3 to 7, to ensure that the England/UK commissioner functions beyond the political arena and to make the commissioner as independent as possible.
The experience in Wales has demonstrated that the Children's Commissioner needs to be independent. He has challenged the Assembly over its implementation of the Assembly's strategy on child and adolescent mental health. Such strategies are by their nature in large part political because they are often driven by the political background behind their development. The challenge laid was informed by the views of children and young people. That kind of challenge impacts on local and central government and on other agencies for the benefit of children. It is only with independence that such a challenge can be placed.
Lord Elton: May I chime in at this point with an apology for arriving three minutes late and missing the introduction to the debate by the noble Earl, Lord Listowel? I feel a passionate enthusiasm for giving the commissioner security of tenure. By all means let him be responsible or answerable to a Secretary of State or whomever, but let him not be dismissible thereby under any ordinary procedure.
I have sadly just come from the memorial service for the late Stephen Tumin, who was a great example of what a thorn in the flesh of officialdom an official in such a position can be. Were he not protected by statute I suspect that the commissioner would not long survive confrontation with a government with whom

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he disagreed about some fundamental right of children. Therefore I am in support of the principle behind the amendments that give him such security.
Lord Prys-Davies: I support the principle of Amendment No. 2. To the best of my knowledge it is not without precedent. Children were involved in the appointment of the Welsh commissioner—no doubt my noble friend can consult with the commissioner for Wales. I believe that the amendment should be supported.
Baroness Ashton of Upholland: This has already been an interesting debate that has ranged across a number of issues that will be tackled in greater depth as we proceed through the Committee stage. The group of amendments is about the appointment of the Children's Commissioner. Amendment No. 1, as the noble Earl, Lord Listowel, so ably set out, specifies the particular experience the commissioner should have. Amendment No. 2, supported across the Committee, will provide for the involvement of children and young people and children's organisations in the appointment of the commissioner. Amendments Nos. 3 to 7, tabled by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Lester, will provide for the commissioner to be appointed by and accountable to Parliament rather than to the Secretary of State.
I have a great deal of sympathy with the underlying thrust of Amendment No. 1. I believe that the noble Earl is looking for a commissioner who has a real feel for, and understanding of, the position of children and young people—indeed, the noble Earl and I discussed this point earlier today
—including, I surmise, those from the most disadvantaged backgrounds; hence, the list that appears in the amendment.
In principle, I support the idea that the commissioner must win the confidence of young people and children in many different circumstances and convince them that he or she is able to reflect fairly their views and to work on their behalf. For me, the watchword in relation to the individual and the office is "confidence". That means that the officeholder must have a certain set of skills, but I am not convinced that a list of professional skills is required—hence, I do not support the amendment. I have met charismatic psychotherapists, social workers, youth workers and many others who work with children, and I have met many other people who I believe understand how to talk to children who have different knowledge, who come from different backgrounds and who react to adults very differently.
Therefore, the premise upon which we wish to appoint the commissioner is that that individual will have the ability to win the confidence of children and will know how to listen to them and when to seek advice on how to listen to them and will ensure that children's views, ideas and best interests are taken to the heart of the work of the office. On that basis, and with an assurance that we shall be seeking credibility and approachability together with experience, I hope that the noble Earl will feel able to withdraw his amendment.
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As for the appointment process, which is raised in Amendment No. 2, it is nice to be able to say "yes". I can confirm to the noble Lord, Lord Rix, and others who are concerned about this issue that it is our intention to involve all children and young people directly in the appointment of the commissioner. That point was made to us by children and young people during the consultation process. The selection process will be in keeping with the code of practice of the Commissioner for Public Appointments.
We shall also be looking to address the point made by the right reverend Prelate based on the experience of colleagues elsewhere—particularly those in Northern Ireland and in other commissions. Noble Lords may know that we have already sought the views of children's organisations in establishing a children and young people's board within the Department for Education and Skills. We would expect that board to play a role in the appointment of the commissioner and, in that way, the matter of taking into account the views of organisations would be addressed.
I do not envisage that children's organisations will participate in the selection process of the commissioner for children and young people. As I have already indicated, the commission must take its authenticity, and indeed authority, from children and young people. Therefore, young people—rather than adults, however well meaning, who speak on their behalf—need to be involved in the appointment. I hope that noble Lords will feel content that I have answered that point appropriately and that they will not wish to press Amendment No. 2.
I know that Amendments Nos. 3 to 7, to which a number of noble Lords, led by the noble Baroness, Lady Walmsley, spoke, are inspired by the wish to see a commissioner who is independent of government. I can assure noble Lords that that is also the Government's intention, and we believe that that can be properly ensured in this part of the Bill. I know that we shall have many discussions on the issue of independence at other stages of our deliberations in Committee. However, we believe that independence will be achieved through the normal procedure of the appointment being made by Her Majesty's Government through the Secretary of State.
As noble Lords will be aware, the commissioner will be accountable to the Secretary of State, who is, in turn, ultimately answerable to Parliament for the actions and responsibilities that he undertakes. I say to the noble Baroness, Lady Howarth, that the Children's Commissioner will head a non-departmental public body. The office will be set up through the normal democratic process. We believe that propriety will be assured by the rules governing public appointments and that that is the right way to approach the appointment. Notwithstanding that, as I have already indicated, during the course of our debates there will be other opportunities to consider properly and fully the extent to which we have ensured that the theme of independence runs throughout the Bill.
I turn to the suggestion that the appointment be made by Her Majesty the Queen. In practice, the Government will be expected to carry out the

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appointment and to operate on Her Majesty's behalf. Therefore, in any event, I am not sure that the amendment would have the effect that the noble Baroness seeks. With the proviso that we are reflecting on the whole issue of independence and shall deliberate and discuss that further during the course of the Bill's proceedings, I hope that the noble Baroness will not press her amendment.
The Earl of Listowel: I thank the Minister for her helpful reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Children's Commissioner]
[Amendments Nos. 2 to 7 not moved.]
Baroness Walmsley moved Amendment No. 8:
Page 33, line 31, leave out "and on such conditions (if any)"
The noble Baroness said: I shall be very brief. This is yet another amendment which seeks to ensure that the Children's Commissioner is independent. Its intention is to probe what the Government mean by the words,
"and on such conditions (if any)",
in paragraph 7 of Schedule 1. Those of us who are exercised about the independence, and thereby the credibility, of the Children's Commissioner believe that if the Secretary of State were to impose conditions on the funding of the commissioner, that would prejudice the independence of the office holder. As all politicians know, the power follows the money. Therefore, I am most anxious to hear the Minister's response. I beg to move.
Earl Howe: I support the amendment, which highlights what, to me, is an unacceptable and unnecessary fetter on the independence of the commissioner. It seems to me to be one thing for the Secretary of State to decide what the commissioner's annual budget should be but quite another for him to dole out the budget with strings attached to it.
As expressed, the provision in paragraph 7 amounts to a blanket power of direction. One can imagine the Secretary of State wanting to ring-fence money intended to fund, let us say, a formal inquiry, but allowing him to impose conditions on the use of any or all of the commissioner's budget is, I think, over the top. I hope that the Minister can reassure us on that point and, even if she does so, I hope that she will also agree to have another look at the wording.
Baroness Howe of Idlicote: I, too, have added my name to the amendment. On the issue of independence, I believe it is particularly important that nothing in the Bill seems to limit that independence. The matter of security of tenure was raised. These are all aspects which could be used to impose conditions one way or another on the work of the commissioner.
Obviously this is a probing amendment and it would be interesting if the Minister could tell us the thinking behind inserting into the Bill the phrase that we are
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seeking to remove. It seems to go a little too far. A budget for a body or quango such as will be led by the commissioner is set in general terms and, in my view—and certainly from my experience—it should be left to the organisation to spend in the most useful way that it considers appropriate.
Lord Puttnam: I added my name to the amendment because I am fearful of our old enemy "unintended consequences". While I accept that the Bill has been brought before the House by a Government who wish to have a Children's Commissioner, I am very concerned that, 10 or 15 years from now, we may well find ourselves with a government who do not want a Children's Commissioner and who would find this rather open-ended invitation to get rid of the commissioner almost too good to resist. I should very much appreciate it if the Minister could find a way to lose the words in precisely the manner that we have indicated.
6.30 p.m.
Baroness Ashton of Upholland: I am grateful for the opportunity to explain precisely what is in our minds in the wording of the Bill. As noble Lords are aware, the Secretary of State will make regular grant payments for the commissioner, in order for the commissioner to discharge the functions conferred on him or her by the legislation.
It is a standard condition of payment that the money is spent on functions within the scope of the commissioner's legislative powers. Another example might be that reimbursement of travelling costs would be within agreed rates, which is standard practice. The reason that this wording exists is that it mirrors Schedule 2 paragraph 14 of the Care Standards Act, under which the National Assembly for Wales funds the Welsh commissioner. We have indeed thought to look very carefully at how that works.
But let me be absolutely clear and stress that there is no intention for the Secretary of State to stipulate how the commissioner should spend the annual grant paid to him, beyond the basic condition that it should be spent on the functions that have been conferred on the commissioner. It will be for the commissioner and not the Secretary of State to determine the priorities, and how the commissioner spends their time and money on different issues.
As the noble Earl, Lord Howe, said, a condition which it might be reasonable to attach to a particular payment would be if there was a supplementary payment, in order for the commissioner to undertake an inquiry under Clause 4. In that case, of course the Secretary of State would wish the additional money given for that inquiry to be spent on that inquiry. We are taking this power only in order to ensure the appropriate use of public funds. The money must be spent on the functions conferred by Parliament, not at all to limit the commissioner's independence. I hope with that assurance that noble Lords will feel able to withdraw the amendment, particularly as I have

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indicated that it mirrors what happened with the Care Standards Act in order to set up the functions of the Welsh commissioner.
Lord Elton: I do not know that I am entirely reassured by what the noble Baroness said, for the reasons which have already been given—that the intentions of the present Government may not be the intentions of a successor government.
If the main or only purpose of these words is to see that the commissioner spends his money only on his functions, it would be perfectly possible to put that on the face of the Bill rather than giving an open-ended cheque—an open-ended power to limit his expenditure to anything that the Secretary of State thinks his expenditure should be limited to. Equally there may be other formulae to deal with the other difficulties that the noble Baroness sees. I hope that this is not a point that we shall lose sight of at a later stage. Indeed, if noble Lords have been thinking about the ways in which that could be dealt with now, they might like to join in at this moment, because that is a matter of some importance.
Lord Lucas: If I wish to give a sum of money to someone to do something, I have a contract, and that seems to be the right way in which the Secretary of State should deal with this commissioner if they want them to do some extra work. They would say, "Here, you can have £50,000 if you will do this work. Sign here. All done. Tick. Off you go". To have this wording in the Bill merely to substitute for that, in a rather inadequate way—because after all it hardly specifies anything—opens up all the dangers which have been specified by my noble friend and others who proposed this amendment. The wording is so wide, it could be used for anything. It has no function. The noble Baroness has not outlined a function that cannot be easily replaced in other and safer ways. It really should go.
Baroness Howe of Idlicote: I too am rather concerned by the points that have been raised. I would like to know what there is to prevent the Secretary of State giving money for a particular purpose without putting anything about it on the face of the Bill. The point that has been raised about unintended consequences is very important. I hope that the Minister will be able to give it a little more thought.
Baroness Ashton of Upholland: I will try to give noble Lords more information if I have it, but my understanding—which has clearly been challenged, and if it is wrong then rightly so—is that that is a standard process to ensure that public money is used for the purposes in which it is taken forward, and in this case given to the new commissioner. But if there is strength of feeling in the Committee, I shall look again to see whether that wording does reflect what has happened in previous legislation and have appropriate
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correspondence or conversations with noble Lords for whom that is clearly an important issue, to see if we might resolve that.
Lord Elton: Before the Minister finishes, could I clarify something? It seems that we are agreed that the commissioner should spend public money on the commissioner's functions and no other. The noble Baroness suggests that common form requires that the Secretary of State should be able to say, "You shall spend it on this function and not on that function". In other words, the Secretary of State can prioritise the work of the commissioner. That would be the effect of what she is saying. I hope that it is not her intention.
Baroness Ashton of Upholland: It is certainly not my intention and I apologise if that was the effect. I was trying to say that the way in which one would expect public money to be used would be that it is conferred upon the commissioner within the commissioner's defined role, and not to be spent on something outside that role. Within that, it is for the commissioner to determine the priorities and the way in which the money is spent.
The only additional point I made was that if there were additional resources given for a particular inquiry, noble Lords would expect the Secretary of State to say that money is for the purpose of that inquiry. That would be the only other stipulation. However, as always, if my clarity is less than it should be, I will ensure that I correct that by correspondence and pursue that with noble Lords.
Baroness Walmsley: I am most grateful to the Minister for her efforts to clarify the situation, and particularly for her promise to have a look at whether the concerns of noble Lords can be addressed. I am grateful to all noble Lords who have supported this amendment. I felt that the noble Lord, Lord Puttnam, made a very good point about the possibility of a future government using something like that to squeeze out a commissioner that they may not want. I particularly echo the first intervention of the noble Lord, Lord Elton. He reflected exactly what was going through my mind as the Minister spoke; he was quicker to his feet than I was.
However, I am particularly heartened to hear the Minister rely on the wording of the Care Standards Act, which created the Children's Commissioner for Wales. I hope that later in our discussions she will be relying in a similar way on the Act that gave the Commissioner for Wales his powers and independence. Perhaps I may threaten the noble Baroness that those words may come back to haunt her later in Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 2 [General function of Commissioner]:
Baroness Walmsley moved Amendment No.9:
Page 1, line 8, leave out "awareness of the views" and insert "and safeguarding the rights"
The noble Baroness said: In moving Amendment No. 9, I shall speak also to Amendments Nos. 13, 14, 17, 20, 22 and 39.
We now come to a very important principle that is close to the hearts of many noble Lords. The principle that holds this whole group of amendments together is that children's rights should be enshrined in the powers of the Children's Commissioner. I will briefly go through what these various amendments do.
Amendment No. 9 is arguably the most critical of all this group. It would change the functions of the commissioner to one of promoting the rights and interests of children. As the Bill currently stands, the general function is so weak that it violates the Paris principles and the whole purpose of a children's commissioner as defined by the United Nations. In addition, the fact that the English commissioner would have a different remit from the commissioner in Scotland, Wales and Northern Ireland, would create a major inequality in the protection afforded to children in England compared to the rest of the UK, and make seamless collaboration between the commissioners and the jurisdictions rather problematic.
Amendments Nos. 13 and 14 ensure that anyone exercising functions that affect children have regard to their rights as well as their views and interests. In Amendment No. 17, rather than merely "consider" matters relating to the interests of children, the commissioner could review and report on any other matter relating to the rights, views and interests of children, which is a much more robust approach.
Amendment No. 20 means that the commissioner should indeed be able to make representations to the Secretary of State, but also any matter affecting the rights or welfare of children, and challenge government policy, or solicit government intervention where necessary. We believe that that is part and parcel of being a really powerful champion for children.
Amendment No. 22 removes any restrictions on the range of things that the Children's Commissioner may consider in relation to children.
Amendment No. 39 would ensure the Children's Corn missioner "must" rather than "may" have regard to the United Nations Convention on the Rights of the Child. This absolutely essential change is needed to ensure the proper focus on children's human rights as enshrined in the convention, including the right to freely enjoy those rights without discrimination. We are, after all, supposed to be creating a human rights institution to give life to the rights set out in the convention.
I very much regret that the Government did not decide to use the UNCRC as their blueprint for a happy, safe and fulfilled childhood. The convention signed by the UK in 1991—and by all but two countries—provides a common vision and language for securing a good childhood for everyone. It gives a detailed strategy for meeting all of children's needs. The fact that it is so widely supported is part of its strength. It does not depend on race, creed, gender or economic circumstances. It is not aspirational. It is a convention to which the UK Government are a party.
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I should have thought that this Bill, which establishes a children's champion and a new framework of duties and responsibilities in the provision of children's services, would have been an ideal vehicle to enshrine the convention in UK law.'
Many of us working on the Bill have wondered why the Government have proposed such a weak model. At Second Reading the plans for England's commissioner were criticised by noble Lords as "discriminatory". The commissioner was described as "castrated". "a government listening post" and "a public relations consultant". As a former public relations consultant I think that I should take exception to that criticism.
In an All-Party Parliamentary Group for Children seminar on the commissioners on 20 April. the Government's conception of the Children's Commissioner was characterised by one contributor as "big ears and no teeth". The proposals have been strongly criticised by existing commissioners in Wales, Northern Ireland and Scotland. The president of the European Network of Ombudsmen for Children has written to the Joint Committee on Human Rights explaining that with such limited powers and questionable independence it is unlikely that England's commissioner will be eligible to join the European network. I am sure the Minister would not wish such an indictment.
Why have the Government put forward such an idiosyncratic and weak model of a Children's Commissioner? I understand the Government's belief is that this is what children have asked for. But do children in England want a commissioner with no powers? The Government's decision to establish a commissioner was announced in the Green Paper Every Child Matters. The document contained little detail on the commissioner—just three paragraphs. There was no reference to children's rights or to the Convention on the Rights of the Child. Nevertheless, the promise of a children's champion, independent of government, was widely welcomed.
The Green Paper did not include any questions about the commissioner. There have been no specialist briefings or consultation events for children in England dedicated to exploring the children's role as, for example, there were in Northern Ireland. It is not surprising, therefore, that children have not expressed too much by way of opinion about the commissioner's powers.
During consultations children asked for a commissioner with similar aptitudes to the commissioners in Wales, Northern Ireland and Scotland. That did not stop those jurisdictions getting a commissioner with strong powers and independent of government. Children in England have not rejected a commissioner with strong powers. It is simply that discussions with children have so far focused on the commissioner's personal qualities and the issues that children hope the commissioner will work on.
If presented with the information on other UK commissioners and international standards, it is hard to imagine why children in England would choose the Government's "big ears and no teeth" model. Children in England have everything to gain and nothing to lose

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from having a commissioner who listens to them, understands them and has the necessary powers to change the way they are treated and protect their rights.
The Government seek to justify the commissioner's extremely weak powers by stressing differences in the child population size between England and Wales, Northern Ireland and Scotland. I agree that the size of England's child population presents a risk of the children's commissioner becoming swamped with formal investigations without safeguards. The potential is there for the commissioner to lose his or her strategic role.
However, instead of handing over to Ministers the power to determine when and how they can use their legal powers, strict criteria should be written into the legislation for the commissioner to follow. The current proposals suggest that the Government do not believe that the commissioner will act in the children's best interests without close ministerial supervision. That is a fundamental flaw and denies children the independent champion they were promised in the Green Paper.
All these amendments require children's rights to be enshrined in the powers of the commissioner. I and many of your Lordships believe very strongly that the Government should accept the amendments if they are really determined to give children in England the powerful and independent champion we all want. I beg to move.
6.45 p.m.
Lord Rix: Perhaps the noble Baroness will answer one simple question. Why in Amendment No. 17 is the word "all" before "children" omitted, and yet in her Amendment No. 23 the word "all" is inserted, which is two lines later?
Baroness Walmsley: I am most grateful to the noble Lord for the question. I agree with him that the word "all" would be an improvement to the amendment. However, I think that my amendment that inserts "all" would be a catch-all and would refer to all the powers and functions of the commissioner. I hope that that would cover the matter.
Baroness Massey of Darwen: Perhaps I may also ask the noble Baroness to clarify a matter for me on Amendment No. 9. I declare an interest as the co-chair of the All-Party Parliamentary Group on Children. As such, I am of course sympathetic to much of what the noble Baroness has said about children's rights.
However, I wonder why she wishes to take out "the awareness of the views" of children. A survey by the Children and Young People Unit a couple of years ago sought views on issues such as leisure and enjoyment. I do not have a copy of it here, but there was a fairly wide-ranging seeking of views. If you do not seek views, I wonder how you define what those
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rights should be. In other words, who defines the rights if you do not have the views of children to hand? I am just puzzled.
Lord Hylton: At Second Reading I tried to draw attention to the fact that in the Bill the Government appear at least—I hope it is no worse than that—to be setting up a commissioner for England with considerably fewer powers, duties and responsibilities than the comparable commissioners in Scotland, Wales and Northern Ireland. That is why I support the general thrust of the amendments.
I should just like to point out that the wording in Clause 2(2) is really quite feeble, although I agree that it is somewhat balanced by subsection (3). In passing, I would welcome subsection (3)(b), which concerns protection from harm, because I think that gives scope for covering the very great difficulties and problems surrounding children who have been trafficked into this country for purposes of exploitation.
Given the very real problems and difficulties that have arisen and still arise in England, which were well covered and extremely well brought to light by my noble friend Lord Listowel when he moved Amendment No. 1, I hope that the Government will be able to explain why a less strong measure is appropriate for England compared with the other jurisdictions.
Baroness Walmsley: May I, with the Committee's permission, answer the question asked by the noble Baroness, Lady Massey, before we have all forgotten what she asked? Is that in order? She asked why I wanted to delete "awareness of the views" and put in "and safeguarding the rights". That is in the introductory subsection of Clause 2, which talks about the general functions of the commissioner. My intention in laying this amendment was to strengthen the general functions, and to put rights at the heart of it.
Of course, I agree with her that in doing so the commissioner must gather the views of children. That is absolutely crucial. However, if the noble Baroness looks at my Amendment No. 17, she will see that it covers getting the views of children, as does subsection (4), which involves consulting children and ensuring that they are made aware of his functions. Getting the views of children is covered, and removing it from that bit provides no detriment at all to the view that children's views must be gathered.
Lord Elton: Going back to questioning the Minister, the noble Lord, Lord Hylton, referred to the apparently weaker powers for the English commissioner compared with the other commissioners. Could she explain that issue in the context of the situation as I understand it, where the English commissioner will be answerable not only for all English issues, but for those Welsh and Scots issues that

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have not been devolved? Therefore, he has even bigger responsibilities, and one would have thought that he would need larger powers.
Baroness Whitaker: In speaking to an aspect of Amendment No. 17, much of what I say also relates to the other amendments in the group, which I also support.
This Government like presiding over improvements. They have already notched up many, particularly in matters to do with the lives of children, which has much to do with the part played by my noble friend the Minister. This amendment, which safeguards the independence in action of the Children's Commissioner, should commend itself to the Government as a critical improvement in this part of the Bill.
When I was responsible for the official oversight of the Health and Safety Commission and then the Equal Opportunities Commission, their freedom of action was fundamental to their usefulness to society and hence to the Government. I say "hence to the Government" because the immediate instinct of those who make the first draft of such statutes is to think how much more convenient it would be to have departmental control over the activities of the commission or commissioner in question. I have been there. However, it is necessary to take a longer view.
The really useful commissioner is the one who can go where the Government, with all their constraints, cannot so easily go; who can bring to bear a narrow and intense focus on a particular issue; who can expose or add together what the machinery of the state has not seen or added together. We are not short of issues that merit that kind of scrutiny.
Why is it, for instance that the children of Northern Irish Travellers have 10 times the mortality rate of their settled counterparts? There are many other examples. A Children's Commissioner needs a free rein to look into things like this if he or she sees fit. Our society will be the beneficiary, and so, ultimately, will the Government, if they have the courage and the self-respect to do so —I am sure that they have. It is not such a big step, after all.
I draw my noble friend's attention to the forthcoming report on the Bill by the Joint Committee on Human Rights. I will not read out into the record the evidence that is already on the website from the Welsh, Scottish and Northern Irish commissioners. I will just say that the evidence of all three commissioners casts serious doubt on the feasibility of having a UK commissioner with such markedly less independence and fewer powers than they have. Between now and Report stage, I urge my noble friend to take account of their evidence in redrafting the UK commissioner's powers.
It is normal for the commissioners set up by statute in this country to have the independence to choose what in their appointed field they will concentrate on. I urge the Government to overcome the timidity of the Bill's concept of a commissioner, and create a real children's champion through adopting this amendment.
Baroness Howarth of Breckland: I ask the Minister whether she can help me to tease out what I am finding
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to be an intellectual conundrum. It seems that rights must be central to a Children's Commissioner. Therefore, I strongly support Amendment No. 17, and the other points made by the noble Baroness, Lady Walmsley, about including rights in the Bill.
I do not really understand the timidity of the Government about including that. I do understand, as I said on Second Reading and earlier today, that there are some issues about a commissioner in England. There are real issues about 11 million children being represented, and how those children are represented by the commissioner. That makes me believe that this person should take—let us not keep saying "he", it might be a woman—a strategic view of the issues. Only then could the kind of issues that concern me, which I want someone like this to be able to intervene in, be dealt with.
I am concerned about issues such as ensuring that children in the criminal justice system somehow get noticed; that asylum children get noticed; that trafficked children get noticed; that children lost in hospitals, particularly disabled children, get noticed. If this person is taking an individual view of children's issues, not a strategic view, they will drown in casework. It might well be that they can look at some individual issues, and of course they will have to talk to children to be a real commissioner. The noble Baroness, Lady Walmsley, talked about having some criteria whereby that can take place. However, it needs to be restricted. The English commissioner is different. The countries in Europe that have commissioners are small countries with small populations. This is a new departure in England. I want this person to be truly powerful, and truly powerful means being able to look across the whole piece.
I also want them to be able to work with others. I have said before that we place too much emphasis on one individual; they must be able to work with all the other children's rights workers in the local authorities, the children's rights director in the Commission for Social Care Inspection, social workers and rights workers in CAFCASS and other organisations. That will be a huge task in itself, pulling together the views and issues that those people will raise with the commissioner on behalf of children. They will be talking to hundreds of children, and the "big ears" need to reflect the hearing of all of that. You can only talk to five children at once, and I do a lot of it. These people can talk to hundreds of children, and presumably the commissioner can gather that.
In all that, I fail to understand why we are so loath to include the word "rights" in the Bill, which seems so important, in a way that includes that strategic view. I do not think that the two things are necessarily intellectually separated.
7 p.m.
Baroness Howe of Idlicote: I support these amendments, and I am signatory to at least one of them. The debate emphasises the concern that we all have about the weakness of this commissioner. Eleven million children will be represented, but is there any

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reason why the powers of the commissioner should be less strong than that of the commissioners of smaller countries? The word "rights" appearing throughout the amendments must show the right way of going about the matter.
A very valid point was raised about whether we should removed the words "awareness of the views". I signed the amendment myself. It is probably right that those words should remain. The views and rights of children are important for how effectively the role is carried out.
The most important change I seek is from "may" to "must" concerning the United Nations Convention on the Rights of the Child. It is crucial.
The briefings have been marvellous and detailed. We all give considerable thanks to the noble Baroness and her assistants for the attention we have received. I do not believe that any of us have had a satisfactory answer to the point I raised.
Lord Northbourne: I give notice that if the rights of children are to be included in this Bill I shall be minded to add the words "and responsibilities".
Lord Puttnam: I am one of the signatories to Amendments Nos. 9, 13, 14 and 39, the latter referred to by the noble Baroness, Lady Howe.
I grab the high ground again as the President of UNICEF UK. In the past 18 months I have visited Bosnia, Cambodia and Nigeria, looking into the issue of child trafficking, which the noble Lord, Lord Hylton, referred to just now. I cannot imagine that UNICEF would be effective in those countries were we merely to have regard to the interests of children. It is the ability to talk to governments based on the UNCRC document and the rights of children which allows one to put pressure on governments.
It is sad to say that a number of the children end up in this country. The notion that we should have less ability to tackle the issues in the United Kingdom than we have in other countries is quite ludicrous.
I am very proud of the fact that the United Kingdom was one of the drafters of the UNCRC. It is quite absurd that we would not incorporate that on the face of our own legislation. I urge the Minister most strongly to do that. As he is aware, I have had a significant amount of correspondence with the Minister of State in another place. I have received an enormous amount of sympathy and understanding on the issue from the Minister. The issue will not go away. If the Bill becomes law without the provision it will be weak legislation. I do not think it would bring much credit to this country or this House were we to allow it to happen.
Baroness Finlay of Llandaff: I concur with the noble Lord, Lord Puttnam. Amendment No. 9 is very important. It is consistent with the United Nations Convention on the Rights of the Child and with the important role that children's commissioners play
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worldwide in the promotion and monitoring of the implementation of the Convention on the Rights of the Child at national level.
Amendment No. 17 would ensure that the views and interests of children are represented. It has been said that the Children's Commissioner in England and the United Kingdom is "outcomes based" whereas those already in place in the United Kingdom are "rights based".
Human rights, as defined in the UN convention, would strengthen the England-UK commissioner, particularly as the Bill itself proposes, that he or she would be working on non-devolved issues as regards the areas already covered by the three commissioners now in place. I fear that without the champion having to work to the UN Convention on the Rights of the Child, the real role will not be achieved in practice.
Like others, I ask the Minister why the Children's Commissioner could not have an effective strategic role if these amendments were accepted. While the wording of the amendments before us today may not be perfect, the underlying principle is of fundamental importance. Like others, I do not understand why it is not on the face of the Bill.
Earl Howe: One matter was quite clear from our Second Reading and that was that most people's idea of what the role and functions of the Children's Commissioner should be was completely at odds with what the Government thought they should be. The noble Baroness, Lady Walmsley, very ably pointed out the inherent contradiction in the Government's position. In one breath they talk about having a children's champion independent of government. That was a phrase which everyone was delighted to read and hear. Yet in creating this champion they are not giving him any of the tools to do the job.
A great deal is said these days about children's rights. I believe that they most definitely do have rights and that in most situations and for most of the time those rights are defended perfectly satisfactorily by parents. But sometimes that cannot happen. Some children have no parents; others are let down or betrayed by them. Others are detained in custody. There are some children's rights which even good and loving parents are incapable of defending, which are the rights of children as reflected in legislation passing through Parliament.
In these contexts it is up to public authorities and Parliament to protect the rights of children. That principle has been recognised in Scotland, Wales and Northern Ireland in the form of a Children's Commissioner. Why on earth cannot we also recognise it in England?
Listening to what children want is obviously an important part of the equation, as the Bill suggests, but it surely cannot be the whole equation. Neither are children's interests the whole story. To be worthy of the name, a children's champion has to look beyond the fulfilment of children's wishes to defending their rights. Children need a champion because very often they are not in a position to defend those rights themselves.

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The UN convention is not about the wishes and interests of children, but about rights. As the noble Lord, Lord Puttnam, pointed out, the UK signed up to it because, not to sound too pompous about it, we believed that it was important for us as a society to make public and binding promises to our children. A Children's Commissioner is perfectly placed to be the guardian of those promises provided of course that he or she is independent. Then if ever the convention's promises appeared to becoming politically inconvenient for a government, a commissioner could ensure that they were adhered to.
As the noble Baroness, Lady Walmsley, said, having an independent person to undertake the process of monitoring, promoting and protecting children's rights is what the convention urges, if not obliges us, to do, backed up by the Paris principles.
Like other Members of the Committee, I find it baffling that the Government have opted to ignore children's rights in the context of Clause 2. The Minister may be tempted to point us in the direction of the ombudsman. He is concerned with rights, but his job is sorting out specific cases of alleged injustice. I do not believe that he has a general duty towards protecting children's rights; neither is he the guardian of the UN convention. He cannot do what Amendment No. 17 proposes, which is to,
"review and report on any other matter relating to the rights, views and interests of children".
I said at Second Reading that it is as though the Government were adopting a "tick-in-a-box" approach to the issue. Once there is someone in place called a Children's Commissioner for the UK or England, no matter how anodyne his powers and duties may be, Ministers will be able to say that they have done what was asked of them. But they are not doing what was asked of them. Bearing in mind that the Government make much of having a listening commissioner, I hope that the Minister will be in listening mode as regards the amendments, which are, in my view, of fundamental importance.
Baroness Ashton of Upholland: This has been an important debate and I am grateful to all Members of the Committee who have participated. I recognise the strength of feeling involved in our discussions. I understand entirely the desire of noble Lords to see a strong commissioner working for children, with children, acting in their best interests and rooted firmly in their views. The Government support that ambition. The debate, in a sense, is about how we can arrive at that outcome.
At this point, I wish to express my thanks to the All-Party Group for Children and to my noble friend Lady Massey for arranging what felt like daily meetings—I believe they were at one point—and for giving me the opportunity to meet other commissioners and their representatives, to hear their views and to discuss with them, formally and informally, some of the issues. We should be proud of our other commissioners. I hope that when there is a commissioner in England he or she will join that august group of people.
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I should say to my noble friend Lady Whitaker that we will of course take account of what she said about the Committee for Human Rights. I shall of course look at the evidence that has been submitted. I have not yet done so, mainly because of the opportunity I had to talk with the other commissioners.
We start from the principle that we want to focus the commissioner's work on the outcomes that have been identified in our consultations; the issues that children and young people have said for themselves are important to them. That is the principle behind our beginning to think through the role of our Children's Commissioner. In a sense, we want the Children's Commissioner to face children; to be responsible and responsive to them. As I have indicated, I believe that the commissioner must draw his or her power from the fact that he or she speaks for children, for their aspirations and for their best interests, but on the basis of that knowledge.
The noble Baroness, Lady Walmsley, asked about the consultation and how we discussed this matter with children. We ranged across a whole set of issues. I am not saying that we asked specific questions on the role of the commissioner, but we discussed the commissioner with children. It may surprise the Committee to learn that the children had a particular interest in being involved in the process of selection of the commissioner. The noble Baroness made an important point about continuing the dialogue on the role of the commissioner. I shall reflect on that and discuss it with my colleagues.
It is because we started from that principle that we have taken a slightly different direction. We understand and recognise the importance that noble Lords give to this issue and I wish to explore a little further the background. When we carried out our consultations for the Children and Young People's Unit we were keen to set the framework around which we would deliberate and discuss the way in which Every Child Matters would take forward the issues that were presented to it. The Committee will know that the genesis of that came from both the work of the Children and Young People's Unit and the Victoria Climbié inquiry led by the noble Lord, Lord Laming, who is not in his place today.
We want to make sure that this principle is at the heart of the work of the commissioner, as it should be at the heart of this legislation and at the heart of the work that we do. The outcomes are, in a sense, enshrined in this legislation and represent, as best we can in parliamentary language, what it is we are trying to achieve for children. They are of children, they were designed by children and they are critically important. The Committee will not be surprised that I find it unacceptable to delete those outcomes and that I therefore cannot accept Amendment No. 22.
I am very concerned that we do not dilute the focus on the outcomes that children themselves have addressed. From the way in which it is framed. we believe that Amendment No. 9 would do that.
I do not want to play down the importance of the UN convention. We have signed up to it—albeit with the reservations that noble Lords know about—and we believe that no commissioner could take sensible

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decisions on what constitutes the interests of children without being aware of its principles and applying them to his work. That is why the Bill ensures that the Children's Commissioner can have regard to the convention when doing so.
Amendments Nos. 13, 14, 17 and 20 all seek to add a specific reference to "rights". Amendment No. 20 also seeks to add "welfare" to other parts of the commissioner's remit. I have great sympathy with what noble Lords are seeking to achieve but I do not believe the amendments are necessary because, under subsection (7), we expect the commissioner to have regard to the convention in considering what constitutes children's interests. We believe that "rights" are already encompassed within "interests". Noble Lords may disagree but, as far as we are concerned, "rights" are encompassed within "interests". The Committee will also be aware that "welfare" is covered by the five outcomes. So, in that context, we do not believe that we need to refer to it specifically.
As regards Amendment No. 17, as I have confirmed, the commissioner will have the ability to review any issue that relates to the views and interests of children. Nothing in Clause 2 will prevent the commissioner from issuing ad hoc reports and taking other action. We are trying not to circumscribe the functions under the clause by being too prescriptive in the way in which we design and list the responsibilities of the commissioner. I have already made it clear that he or she may take into account the UNCRC. So our thinking is that children's rights are part of the views and interests that the Children's Commissioner may want to pursue. I am, however, sympathetic to the concerns that underlie the amendment.
I have made the point that we start from a different principle. I recognise, as the noble Lord, Lord Hylton, said, that there are differences in the way in which we have approached this matter from the other commissioners; it is what makes our debates with them of great interest. We expect the commissioners to work closely together. We believe that by focusing on the outcomes for children we have the correct balance for children's interest. In terms of Amendment No. 17, I said that I have some sympathy for the direction in which noble Lords wish to go, but other amendments, in my view, change the focus of the work of the commissioner in a way that I do not wish to see. On that basis, I hope that the amendments will be withdrawn, although I appreciate that noble Lords may wish to reflect on them further at later stages of our deliberations.
I said at Second Reading that I would reflect on the issues in regard to the UN Convention on the Rights of the Child. In particular, I wish to focus on Amendment No. 39. I am a listening Minister. I wish to be clear that I have reflected on the way in which noble Lords have—today and at other times in our debate—powerfully discussed the issue of the UN Convention on the Rights of the Child and I shall therefore accept Amendment No. 39.
7.15 p.m.
Lord Prys-Davies: I quite understand that my noble friend cannot accept an amendment that would delete the words "promoting awareness of the views and interests of children", but would she accept an amendment which added the words "safeguarding the rights" but did not delete that wording?
Baroness Ashton of Upholland: In accepting Amendment No. 39 I may have slightly changed the focus of our deliberations. I am trying to signal to the Committee our concern to ensure that rights are a fundamental part of the legislation. I believe I have achieved that. Between now and the next stage of the Bill there will be opportunities to discuss this matter. We believe that the issue of "rights" is covered within the wording of the Bill. I hope that by accepting Amendment No. 39 I have allayed some of the concerns of noble Lords.
As always, my door is open. I shall be at the beck and call of noble Lords to give further clarification and to discuss ways in which we can work together to achieve my desire. I hope I have made that clear by accepting the amendment.
Lord Puttnam: I thank the Minister for accepting Amendment No. 39. She is not only a listening Minister; she must be an extremely persuasive one. It is very difficult for my colleagues and I on these Benches to table what must appear at times to be hostile amendments. It is enormously encouraging that we are listened to and that we are not treated as either renegades or disloyal for raising what seem to many of us to be extremely obvious points.
Lord Neill of Bladen: Before the noble Baroness sits down, will she address this point? As I understood her argument, the Children's Commissioner would, in any event, have in mind and be aware of the convention and the rights of children. If that is the case, it totally destroys any argument against including on the face of the Bill, in a most prominent position—Clause 2—this reference to the rights of children. When she rethinks this, will she be good enough to think about the logic of what she has said? Inherent in that logic is that rights are part of the remit of the commissioner and therefore—if she will follow my thinking—ought to be in the forefront, in Clause 2.
Baroness Ashton of Upholland: As the noble Lord will know, I am always willing to rethink. I hope that I have signalled very clearly our position as regards the UN Convention on the Rights of the Child. Any noble Lord who wants to know what persuaded me has only to read the words of my noble friend Lady David on Second Reading in describing very clearly that a government who signed up to and ratified such a document with all-party support must have regard to it. None the less, it is critical to ensure that when we design legislation we are clear about what we are seeking to achieve in terms of outcomes for children and the role of the commissioner. It is partly a question of balance and partly one of focus. In certain of these

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amendments, it is our view that the focus of the work of the commissioner could change. I began by saying that we had begun our exploration of the role of a commissioner for England from the point where children had indicated they wanted us to be, and that is a focus we would not wish to lose. That would be my starting point for any further discussions and, as I have already indicated, I am always open to discussion.
Lord Northbourne: Before the noble Baroness sits down, she mentioned the possibility that the work of the commissioner might change. Is it also possible that the United Nations convention might be changed? If so, how would we be affected if we had signed up to it in the way in which the noble Lord, Lord Neill. suggested?
Baroness Ashton of Upholland: It is my understanding that the convention was signed in 1991, and I know of no particular changes. Many in your Lordships' House are more expert than I on the UN Convention on the Rights of the Child. If I am incorrect I shall of course make sure that noble Lords are aware of any new information. As far as I understand it, the convention is signed and ratified, and remains as is. I know of no other moves or ability for the convention to be altered; if there is, I will of course notify your Lordships.
Lord Lucas: Could the noble Baroness enlarge a little on her reaction to Amendment No. 17? It is pretty standard to have a clause which gives a commissioner the right to publish reports. If, under Clause 2(2)(b), he requires permission to talk to the Secretary of State, surely we need something which gives him permission to talk to the rest of us.
Baroness Ashton of Upholland: There is nothing to stop the commissioner making reports in an ad hoc way in any event. Indeed, the commissioner will have the ability to look systemically at different aspects of what happens with children; we would expect him or her to report on that and to make those reports available.
I was trying to make the point that I could see within that amendment perhaps more clearly where noble Lords were seeking to develop the argument. However, I thought that we needed to be careful about how we interpreted the way in which the commissioner does his or her work in order to ensure that we do not prescribe it. We are all, in a sense, searching for the same goal—a commissioner who is flexible and able to respond but has a clear remit. What divides us is how we achieve that goal. It is our view that we need to be clear about that flexibility and not prescribe in areas where we think that might constrain the commissioner or deflect him or her from functions which we think are critical. Again, I am very happy to discuss this with noble Lords.
Baroness Howarth of Breckland: Before the noble Baroness sits down, I should like to add one more point about why I am so keen that "rights" is firmly on the face of the Bill. It is connected with the point that
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the noble Baroness has made on several occasions about where the Government are coming from in listening to children and young people.
As a generic group, children and young people are about as generic as any group in the population. I talk to a lot of young people; they are as prejudiced or unprejudiced as any other group of people. Many young people have quite a punitive attitude regarding what should happen to others who have confronted the law—until they confront it themselves, of course. They have quite a punitive attitude towards people who come in from the outside. It is terribly important that the commissioner is able to stand up for the rights of minority groups of children. That is why I think the word "rights" is so central to what we are trying to do. Listening to children is as complex as the noble Baroness listening to noble Lords in the House.
Lord Elton: May I follow on from that description of children with a comment that is not, I hope, facile, but quite relevant? I remember that as a child, I was acutely aware of my wrongs; I had no idea of what my rights were at all, and I depended on my parents for seeing that I got them. As my noble friend Lord Howe said, we are concerned with the children who have no effective parents or no parents at all to see that they get their rights. That is why the word should be in the Bill and that is why the children have not asked for them.
Baroness Ashton of Upholland: The noble Lord and the noble Baroness both referred to particular groups of children. As the Committee goes through its deliberations, there will be plenty of opportunity to talk about particular groups of children whom noble Lords are, rightly, particularly concerned about, as expressed in various amendments and discussions.
My ambition was that by accepting Amendment No. 39 I stated a principle which noble Lords would greet with, I hope, delight. In a sense it sets the framework for the deliberations of the commissioner.
I pay tribute to the noble Baroness, Lady Howarth, who knows a great deal about talking to children. I agree entirely with what she says about children being representative of the rest of us. However, it is important that the UN convention plays its role within that, and I believe that by changing a very simple word, noble Lords have achieved what they wanted.
Baroness Walmsley: I am most grateful to the noble Baroness for responding to this group of amendments. In particular, I thank her very much for accepting Amendment No. 39. We are all absolutely delighted that she has been able to accept it on behalf of the Government. It is an important principle; it is a step in the right direction. However, I think my nickname must be Oliver Twist, because we want more.
I am most grateful to all members of the Committee who have supported this group of amendments with such conviction and passion. I was particularly grateful to the noble Lord, Lord Neill of Bladen, for pointing out the logic of the Government's refusal to include the "R" word in the other places in the Bill, as I have proposed in this group of amendments. While

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we are very grateful to the noble Baroness for accepting Amendment No. 39, I hope that when we return to these issues on Report, as we inevitably will, she will continue to use her powers of persuasion, together with her listening ear, and will be able to accept further amendments on them.
I was most grateful to the noble Baroness for mentioning that she felt that the Government did not want to circumscribe the powers of the commissioner. That was exactly why I tabled Amendment No. 22. Although I accept that the outcomes are a result of what children said they wanted, because they are set out in a list, they circumscribe the powers of the commissioner and that is why we tabled Amendment No. 22.
The problem is that if you ask a question, you get certain answers, and the answers you get depend on the questions you ask. The point I was making earlier about consulting children about the powers of the commissioner is that not enough questions have yet been asked of children. Whether there is an opportunity to ask more of those questions between Committee and Report, I do not know, but I think it would be extremely helpful if questions about the specific changes that we want to make to the Bill about children's rights could be run past a group of children and the Minister could hear their responses.
With gratitude, yet wanting more, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Lord Northbourne moved Amendment No. 10:
Page 1, line 8, after "and" insert "best"
The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 40 and 43. Amendments Nos. 10 and 40 relate to the meaning of the words "children's interests". As the Bill is drafted, Part 1 is unclear on the meaning of those two words. In the English language, the word "interests" can be used in two ways—to question what the child is interested in and to describe what is in the child's best interests. I am not being pedantic. Clause 2(2) includes the phrase:
"the views and interests of children".
Views and interests match very well—their views and what they are interested in. However, when we turn the page, we find in subsection (7) a reference to interests in the context of the UN convention, which does not relate to what children are interested in but to what is in the best interests of children.
This is an important matter because it defines what the Children's Commissioner is for. Is he just a pair of ears to hear what children are saying, as the noble Baroness, Lady Walmsley, suggested, and to represent those views to the Government or to the world, or does he judge not only what different children are thinking—and there will be a great variety of children's views—but what is in their best interests? That is where my Amendment No. 43 comes in. Like the other two amendments, it is a probing
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amendment. If it is the job of the commissioner to ascertain the best interests of children as well as what they are interested in, he must also listen to other people who know about children and who are in touch with what is in their best interests in the modern world. I need not insult your Lordships by giving examples of how a child might find some things more interesting than others or that some of the things that he might find interesting might not be in his or her best interests. I beg to move.
Baroness Sharp of Guildford: From these Benches, I support the noble Lord, Lord Northbourne, on these three amendments, although my name is attached to Amendment No. 43 in particular. As he says, "best" is a very small word, but it makes a difference. It focuses on the specific interests of the children in the Bill, and there are great advantages in using a familiar term. "In the best interests of the child" is used regularly in Bills and it is a good idea to carry it forward into this Bill as well.
On Amendment No. 43, I also support the noble Lord in arguing that the Minister has herself said that it is vital that we listen to the voices of children. However, sometimes others are also there to help with those voices—the parents, teachers and doctors who work with them. Sometimes, children cannot express for themselves what they really want. It is therefore helpful if we can include in the Bill the need for the commissioner to take account of the views of other people who work closely with children.
Lord Elton: The noble Lord has pointed out a genuine ambiguity and a simple remedy. If we are not to go to the interpretation clause that is fragmented in this Bill and difficult to find in several parts, I suggest that his remedy is much the best one.
Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Northbourne. Indeed, I am grateful that we had the opportunity earlier today to talk about this matter. "Interests" reflects two different things at the same time. Of course, it is our intention that the provision is about the best interests of children. On making judgments about this, the commissioner will be particularly informed by the UN convention and the rights that children can expect under that, which is very important. However, we do not want to lose sight of the interests of children. I know from consultation with the National Society for the Prevention of Cruelty to Children, that children are very keen for the commissioner to look at issues such as access to computers and pocket money. It is therefore important that we reflect both meanings. Children have interests that they wish to see reflected in the work of the commissioner.
Noble Lords can think of many examples, I am sure, of the way in which children reflect their interests—on school councils for example and in other ways. The interests that the teachers or adults believe that the children will take forward are not always the ones that children think are particularly important to them. Therefore, the provision, in a sense, includes both meanings. I have listened to the noble Lord and the noble Lord, Lord Elton, and I suggest to the Committee that I take this matter away to see if more can be done. However, I do not want to lose what

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we believe is in the language and the policy intent. It should reflect the best interests of children and children's interests.
The noble Lord confounded me by adding his Amendment No. 43 which, according to my grouping, I am not yet taking.
Lord Roberts of Conwy: In her further deliberations, will the Minister consider that there is no such thing as absolute best interests? She and others will accept that there will be a variety of views about what constitutes children's best interests under the groupings in the Amendment No. 43.
Baroness Ashton of Upholland: Indeed, that is why the wording of the legislation is as it is—greater minds than mine have reflected on how to ensure that we capture what we are trying to do. As I have already indicated, the UN convention will form part of the backdrop that will enable the best interests of children to be realised. However. I have promised to reflect on the matter further.
Amendment No. 43 is specifically, as the noble Lord will know. to consider the accounts and views of others, such as parents, teachers, GPs, youth workers and so forth, who can represent younger children and those less able to represent themselves. There is nothing to stop the commissioner from doing that. Indeed, it would be generally understood that the commissioner would wish to consider the views of adults and organisations working with children. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Northbourne: I am grateful to the Minister and full of hope that we may be able to accommodate the problem to which I have drawn attention. Clearly, it is extremely unsatisfactory to use a word that has two meanings, to employ the word once and expect people to understand that both meanings are implicit in the text. I cannot help feeling that the skills of the department with the English language will enable a slightly clearer wording to be worked out. On the basis that I will also go away and think about the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 11:
Page 1, line 9, leave out "the United Kingdom" and insert "England"
The noble Earl said: In moving this amendment, I shall also speak to a number of amendments that are grouped with it to which my name is variously attached.
At Second Reading, the noble Lord, Lord Thomas of Gresford, encapsulated what for many of us is one of the Bill's ultimate anomalies. In creating a Children's Commissioner for the United Kingdom rather than just England, the Government are entrenching the administrative divisions arising from devolution in an unnecessary and retrograde way. The devolution settlements for Scotland, Wales and
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Northern Ireland, as we all know, defined those matters that were to be devolved and those that were reserved to Westminster.
As a consequence, the direct powers of the Welsh commissioner, for example, are, strictly speaking, confined to devolved matters such as health and social services. He lacks direct powers to act on matters falling under the remit of, say, the Home Office. But so that he can examine and address children's rights and interests in the round, he has the power to raise with the Welsh Assembly any matters of concern relating to non-devolved issues, leaving it to the Assembly to pass those concerns to the appropriate quarter as it wishes. These arrangements have worked quite satisfactorily, as the noble Lord, Lord Thomas, told us. Under the Bill, however, it is envisaged that, all of a sudden, a Children's Commissioner for the United Kingdom will muscle in and assume responsibility for those issues relating to children in Wales that are non-devolved. Welsh children will, therefore, find themselves with not one champion but two, working so to speak side by side.
In a Bill that purports to be child centred above all else, it is odd, to put it at its kindest, that the lines of accountability that the Government are proposing for these two commissioners appear to put legalistic considerations ahead of common sense. Children do not understand devolved and non-devolved powers; they want a simple system. They need to be able to access a single commissioner whom they regard as the champion of their interests across the board. They do not want to be confused by being told that if their complaint or concern relates to a Home Office matter they should talk to one person, and if it relates to a health matter they should talk to someone else. Apart from anything else, many complaints and concerns do not admit of such clear-cut divisions.
The position for children in the devolved administrations is even more unsatisfactory than that because of the completely differing roles and powers envisaged for the UK commissioner as compared with his three counterparts. If the Government get their way, the UK commissioner will not be taking up the cudgels for Welsh children in at all the same sense as the Welsh commissioner currently does. That is because he will be concerned only with promoting awareness of the views and interests of children. He will not be concerned with safeguarding and promoting their rights and interests, although one must acknowledge that the Government's acceptance of Amendment No. 39 does tilt the situation in the right direction. Nor will the UK commissioner be able to undertake an inquiry into an individual child without the say-so of the Secretary of State. This difference in powers and functions is unsatisfactory enough in relation to children in England; it is doubly unsatisfactory in relation to children in Wales, Scotland and Northern Ireland, because in practice it represents a dilution of the protection they currently enjoy from their own respective commissions.
There is a simple enough answer to all of this, which is the one that I have proposed in my amendments. It is to say, "Let the three existing commissioners continue to fulfil their functions in their respective

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territories. Do not confuse lines of accountability by making the English commissioner responsible for some matters in those territories but not others; but instead make him responsible solely for English children, and alongside that create a duty for all four commissioners to co-operate with one another on matters that affect more than one country, such as child poverty". That way, children will have consistency and simplicity instead of the more confusing and complex arrangements envisaged here.
While we are about it, what exactly is meant by the phrases "children in Scotland" and "children in Northern Ireland" which occur in subsection (1) of Clause 5? Does "children in Scotland" mean children living in Scotland or children who happen to be in Scotland but who may in fact live in England or somewhere else? Supposing the Scottish commissioner has a concern about children who live in England but who attend a Scottish school, is that a matter for him to pursue or a matter for the English commissioner? Amendment No. 73 is intended as a means of probing the Minister for clarification on this issue. It is not clear to me where it is intended that the jurisdiction of the English commissioner should begin and end.
I hope that the Minister will be able to see that there are serious issues here emanating directly from the devolution settlements which must be clarified and resolved. I hope that she can be helpful on these matters. I beg to move.
7.45 p.m.
Baroness Finlay of Llandaff: In speaking to the amendments in this group I should like to add to some of the points so clearly made by the noble Earl, Lord Howe. The England/UK commissioner will be responsible for 11.5 million children in England and another 700,000 children in Wales. These amendments reflect the complex nature of the devolution settlements. I hope that the Minister will see that they aim to work in the spirit of current arrangements to improve things for children in Wales.
Today there was a debate in a plenary sitting of the Assembly and a Motion was passed unanimously—by 50 votes to nil—stating that the Assembly welcomes the additional powers that the Children Bill gives to the Assembly; rejects the proposal that the English Children's Commissioner should have statutory functions over non-devolved matters in Wales; and calls for the powers of the Children's Commissioner in Wales to be extended over non-devolved matters. That was in this afternoon's debate in the Assembly.
Amendments Nos. 11 and 63 define England's Children's Commissioner as responsible for England, and allows the other amendments to ensure that children ordinarily resident in Wales go to the Children's Commissioner for Wales. I ask the Minister how Welsh children and the National Assembly for Wales were consulted on the commissioner's change in role as outlined in the Bill. How were they consulted over the significant differences in roles between the Children's Commissioner for Wales and the England/UK counterpart? Perhaps I
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may remind the Committee that children in Wales and the National Assembly for Wales were involved in the appointment of the Children's Commissioner for Wales, who is independent of Welsh Assembly government.
Amendment No. 65 ensures consistency across the UK. Amendments Nos. 71 and 71A have the effect of extending the commissioner's powers across Wales to allow the commissioner to make direct representations either to the Assembly or to the appropriate Minister of the Crown or government department where the matter is non-devolved. Amendment No. 72 provides consistency and fairness across the UK, ensuring communication and consultation on issues for the benefit of all children in the UK irrespective of where they ordinarily live. I appreciate the need for consistency and fairness across the UK. That is vital as the children concerned are moved around the UK and are often known to services by the very nature of their background. They often lack geographical or other security.
Children cannot be expected to understand the complexity of arrangements. For them, and indeed for staff on the ground, it is much safer to know that all matters pertaining to safeguarding of children ordinarily resident in Wales are the province of the Children's Commissioner for Wales. Experience has shown that a child's issue or complaint frequently involves more than one agency and that it is not possible to separate devolved and non-devolved issues into neat compartments.
When the child moves to reside in England they should come within the remit of the English counterpart. A small number of Welsh children are in secure units in England. It should be for the Children's Commissioner for Wales and the counterpart in England to sort out their bureaucratic arrangements to ensure that no child is lost to the safeguarding functions of an effective commissioner.
Until now there has been no UK Children's Commissioner. So, the Children's Commissioner for Wales has developed informal working relationships with the Criminal Records Bureau; with the senior police, who are represented on area child protection committees and have a major role in safeguarding children in Wales; and with the governors of prisons in Wales over children in custody, because, sadly, there are still deaths in custody.
Great thanks are due to the late Lord Williams of Mostyn whose amendment to the Children's Commissioner for Wales Bill, enacted in 2001, ensures that the Children's Commissioner for Wales can make representations to the Assembly on any matter, whether devolved or non-devolved, that affects the welfare and rights of children in Wales. If he deems it appropriate, he can apparently also make informal representations to UK government on these matters. Although the Wales Office has given reassurances that this can continue, it seems to be a courtesy that allows for his freedom of expression, rather than a formal route regarding issues that could be critically important.
The England/UK commissioner will be able to consider, research and report on non-devolved matters as they relate to views and interests of children in

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Wales. This means that she or he will need to know the views of Welsh children on any such matter, which will inevitably duplicate with the Children's Commissioner for Wales who will be drawing on the same group of the population for views.
From the perspective of a troubled 10 year-old, it would seem far simpler for the Children's Commissioner for Wales to ascertain the views of children in Wales on all matters. This is not about the powers of the individual post of Children's Commissioner for Wales; it is about the practical operational aspects of communication on non-devolved matters directly to Westminster. It seems inconceivable that an issue would come to the Home Office without the Children's Commissioner for Wales already knowing about it, especially if the child's language is Welsh. The England/UK Children's Commissioner would need to understand the context within which services are delivered in Wales and the way policies are determined and how they differ from those in England, although I do not see why the Children's Commissioner for Wales cannot report directly to the relevant Secretary of State on non-devolved matters arising in Wales.
This Bill is built on the fundamental principle of safeguarding children. Let me use a specific example to illustrate this. Take Hillside, the secure unit in Neath, where there could be twin boys from Ystradgynlais who are primarily Welsh-speaking. They come from a family with a history of drug abuse on the part of their mother and her partner. One has been placed there by social services on a care order precipitated by behavioural issues that constitute a potential danger to himself. The other has been sentenced by the magistrates' court for persistent offending and is under the auspices of the youth justice system. If a concern arises regarding their management by the court or regarding a failure of the complaint system within Hillside, child A contacts the Children's Commissioner for Wales Office and the latter may decide to visit or to request information about a perceived failure in the system. If child B, his twin brother, wished to make such contact, he would be told that he should contact the English/UK commissioner, or that the Children's Commissioner for Wales could make representations on his behalf to the Assembly which may or may not choose to refer that on to the Home Office. It does seem inordinately cumbersome and confusing, particularly when the two children are from the very same household.
If guidance is not co-ordinated, confusion arises and safeguarding fails. Most inquiries into child deaths over the years have repeatedly pointed to failed communication between agencies. In the aftermath of the inquiry of the noble Lord, Lord Laming, child protection committees in Wales, which comprise different agencies concerning devolved and non-devolved matters, received guidance. The police and probation service immediately received Home Office guidance in advance of the Assembly issuing guidance to the devolved agencies in relation to the delivery of Welsh services for children. One of the Children's Commissioner for Wales' roles is to ensure coherence
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in policy implementation. Clearly, any anomalies in timing or content between Home Office guidance and Assembly guidance leave children vulnerable.
The devolution settlement was made in 2001 with good intentions but it could not foresee every possible scenario that would arise. Children's services form a good example of where events have now moved beyond the situations then envisaged. The reporting arrangements for the Children's Commissioner for Wales do not undermine the devolution settlement if he can report directly on non-devolved matters to Whitehall. But if we are hamstrung by the terms of his appointment, meaning that he has no role beyond the Assembly remit, the devolution settlement acts as a strait-jacket for coherence in Wales, which is against the Government's intent to make improvements for all.
The role of the commissioner in Wales was debated in the Assembly in plenary. It was to avoid that confusion that the National Assembly for Wales voted on 5 November 2003 by 55 to nil to call for the strengthening of the powers of the Children's Commissioner for Wales to enhance his role—a debate that was reinforced today. It also welcomed the intention of Westminster to introduce a Children Bill. So why, I ask the Minister, in the light of this unanimous view, have the Government decided to fragment rather than consolidate the role of the Children's Commissioner for Wales on behalf of Welsh children?
Lord Roberts of Conwy: I am not sure that I have anything to add, except emphasis, to what has already been said. I shall endeavour to sharpen the issue, if, indeed, it is not sharp enough already.
There is no doubt that the UK scope of the Children's Commissioner begs the question of his relationship with the children's commissioners not only in Wales, which I am delighted to say we have heard a great deal about, but also with the children's commissioners in Northern Ireland and in Scotland.
It is true that there is some definition of that relationship in Clause 5, but, as we have heard, some issues are still very unclear and there is substantial concern. For example, it is a major concern for Children in Wales, which spans a number of organisations concerned with children's rights and welfare.
We know that the commissioners in the devolved administrations are confined in the scope of their operations to devolved matters—that is their preserve. It is not altogether satisfactory because, as the noble Baroness, Lady Finlay, said, children's problems often involve non-devolved areas, notably the police and the Home Office as well as devolved areas such as social services, education and health.
When we established the office of Children's Commissioner for Wales, we were indeed assured that he would be able to make representations to the National Assembly on any matter in any area, devolved or not devolved, and that the Assembly could pursue it with the relevant Secretary of State at the UK level. As far as I am aware, that arrangement still

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holds. I hope that the noble Baroness, Lady Finlay, is right that assurances have been given that it will continue.
Now we are to have a Children's Commissioner with a UK remit. He is debarred under Clause 5 from concerning himself with devolved matters in Scotland, Wales and Northern Ireland, but not reserved matters, and so there is some overlap of functions and certainly a great deal of potential for confusion. The key question for me is the following. In future will the Welsh commissioner, for example, refer a matter touching a non-devolved area in Wales to the UK commissioner rather than to the Assembly? That must obviously be one line of approach. I am sure that in practice all the commissioners will work fairly harmoniously together and it may be helpful to the existing commissioners in different parts of the UK to have a fellow commissioner who operates at UK level but does not interfere in their local concerns. There are two sides to that particular coin.
My noble friend's amendment proposes that the relevant commissioner should be confined to England. That might, indeed, clarify the situation but I am not absolutely certain that it would be wholly advantageous. I see potential benefit in the UK commissioner's umbrella role. After all, if the Welsh commissioner, the Scottish commissioner or the Northern Ireland commissioner see a problem in a non-devolved area, and if they talk about that problem to the UK commissioner, they will at least be talking the same language and I am sure that there will be a greater degree of understanding.
With regard to the suggestion that the Welsh commissioner should have the authority to examine non-devolved matters, on the same basis as he examines the devolved matters in the devolved areas, the difficulty is obvious. He is an appointee of the Assembly. He is not directly responsible to or appointed by the Secretary of State responsible for those non-devolved areas. However, I am sure that those who have spoken already and others who may speak will support me in saying that the Government should explain the new commissioner's UK role more fully, because there is clearly widespread dissatisfaction. The last thing we want is for children to be discriminated against one way or the other, or to have to suffer the consequence of this administrative mix-up.
8 p.m.
Lord Thomas of Gresford: The Bill has come about as a result of various cases where children have fallen between the care that should have been given to them by various authorities. One essential purpose of the Bill is to make sure that that does not happen again, and to clarify lines of responsibility.
The Welsh commissioner's Bill had its genesis in the Waterhouse report, which was concerned with what had gone on in various establishments in north Wales, some of them very close to where I live. Bryn Estyn comes to mind, but there were other institutions as well where abuse had gone on. For 18 months, Sir Ronald Waterhouse led an inquiry into those problems. One of
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his recommendations was that there should be a Children's Commissioner for Wales, to bring together the various agencies concerned with the welfare of children. That was done. It was the first Bill to come before your Lordships' House that was entirely devoted, following devolution, to Welsh matters.
We had not been debating that Bill very long when it became quite clear that there was an element on the Government's side that was pushing to divide the responsibilities of the Children's Commissioner for Wales, so that the Home Office would not be affected by anything that he did. The argument was that the devolution settlement had taken place, and that we should do nothing to undermine it. I do not think that right. The very expression "devolution settlement" suggests that that is something fixed in stone for ever and a day. The Richard report, which we have just received in Wales, has demonstrated that the devolution settlement is unsatisfactory, and that very significant changes have to be made to it. Therefore, no one should be tied to the devolution settlement.
There should be no no-go areas for the Children's Commissioner for Wales. We cannot divide the welfare of a child into devolved and non-devolved matters. The implications of the welfare of that child cross those barriers, which are only temporary and artificial and do not go as far as many of us in Wales want.
As the noble Baroness, Lady Finlay, pointed out, Lord Williams of Mostyn—I always have to call him Gareth Williams—decided that it would be good to give the Welsh commissioner power to look into anything, devolved or non-devolved. The compromise was that, instead of going directly to Ministers in Westminster, anything that had to do with non-devolved matters should be reported by the Welsh commissioner directly to the National Assembly. It would be for it to decide whether to take it up in Whitehall.
Last week, we had some very helpful discussions with the Government, and I pay tribute to them for the fact that they are prepared to be involved in discussions with all of us who are concerned with the Bill and its Welsh side. We were told in those discussions that, in fact, the Welsh commissioner has been able to approach Whitehall ministries directly. It may horrify some people—that, on non-devolved matters, the Welsh commissioner should arrogate to himself powers that the original statute did not give him—but it is the practice.
If that is the practice, and if the Welsh commissioner requires statutory authority to approach Whitehall ministries directly—the Home Office in particular, and the social security ministries, which are concerned very directly with the big problem of child poverty in Wales—that is what the amendments seek to provide. The lines of authority and responsibility should be clearly drawn, and we cannot draw them on the basis of what was the devolution settlement some years ago but may not be the devolution settlement in a few years' time, if the Richard report is accepted.

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Consequently, let us forget about what is devolved and not devolved; let us consider what is in the interests of the children. By passing the amendments, let us recognise that children's problems cross all the boundaries. I hope that the Government will accept the amendments. If they do not and the amendments are pressed at a later stage, I assure them that we will support the amendments entirely.
Lord Elton: I have two very short points in support of what has been said. The first is to ask the Minister, when she thinks about the matter, not to look at it from above. She should not look at it from a government point of view of administrative convenience—of the possibility of an overarching power, to which my noble friend Lord Roberts was attracted. I ask her to look at the matter from below, where the children are. They need one point to go to; they do not want a choice of points.
The second matter which I would draw to the Minister's attention is that in setting up the Welsh commissioner, the Government provided for the Welsh Assembly to speak on his behalf on non-devolved matters. Therefore the Government are ready and willing to listen to the Welsh Assembly and to give great weight to what it says. Will the noble Baroness please pay great attention to what it said this afternoon, which is exactly in accordance with the amendment that my noble friend is moving from our Front Bench?
Lord Prys-Davies: May I, from these Benches, support the amendment? In particular, I wish to reiterate some of the points that have been made by the noble Baroness, Lady Finlay, and the noble Lords, Lord Roberts of Convey and Lord Thomas of Gresford.
I believe that the merits of the amendment were first discussed when the Children's Commissioner for Wales Bill was before Parliament, so the amendment represents a further stage in a long-running campaign to extend the powers of the Welsh commissioner over devolved matters. I hope that that will be acceptable to the Government. Today we have heard from the noble Baroness, Lady Finlay, that the Welsh Assembly itself has unanimously called for the Welsh commissioner's powers to be extended over devolved matters.
I find it difficult to understand why the Government—who I have supporte—have persistently refused to extend the remit and powers of the Welsh commissioner to over non-devolved areas of policy. At Second Reading I listened carefully to my noble friend the Minister, who asserted as if it were a fact that this is due to what she described as,
"the logic of the devolution settlement".—[Official Report, 30/3/04; col. 1210.]
Many of us in Wales do not accept that there is such a logic or that the Government of Wales Act 1998 represents a final settlement that cannot be questioned. Indeed, the Government of Wales Act in no way has affected the power of Parliament to legislate as it sees fit. The principle of the sovereignty of Parliament makes it impossible for Parliament, through one Act, to limit the competence to pass another Act which may be inconsistent with the first
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Act. The functions of the Children's Commissioner for Wales should be determined by the children's legislation of today.
I read the evidence of the Welsh commissioner, Mr Peter Clarke, to the Welsh Affairs Select Committee, given on 22 April. I shall not quote from the transcript, because it has not been edited, but I have no doubt that he is seriously concerned over whether this model will work. As I understand it, difficulties can arise in two main areas. First, the existence of two different commissioners, with different remits and powers, will cause genuine difficulties in the minds of children and young people. In addition, there may well be a preliminary issue to be settled—to which the noble Lord, Lord Thomas of Gresford, referred—regarding whether an issue arises within an area that has been devolved or has been reserved. This can sometimes be a manifestly difficult question which may take time to resolve. Evidence of that is to be found in the report of the Richard commission.
Unless the amendment is accepted by the Government, the Bill will not work as well as they believe it will. Therefore, I hope that they will give the amendment careful consideration.
Baroness Andrews: I am grateful to all noble Lords who have spoken in this debate. As was entirely predictable, it was a debate that carried conviction—and had about it a touch of déjà vu, when we recall the debates that we had in this House on the Welsh commissioner; but it is none the worse for that. It also has the irresistible appeal of allowing a short debate on the devolution settlement, however it is described. I will try to be clear, because the last thing that we would wish for at this stage would be to add to what I perceive is confusion about the role of the respective commissioners, particularly from the point of view of children. I take entirely the point made by the noble Lord, Lord Elton, that we must see this matter from the point of view of children and not as if we were administering something to them.
Essentially what we are doing is to create an English commissioner with the scope to address non-devolved issues across the UK. He will work on behalf of children across the UK in those respects. I am happy to reiterate that he is the equal, and not the superior, of the other commissioners—he is their partner. However, because he has the scope to work across the UK, he will be able to offer the children of the UK additional access to issues that are now reserved. These are extra powers, extra opportunities, and they are new powers that will ensure that he is the ally and the friend of children, as well as of the other commissioners. He is not a competitor; he is not muscling in. I want to reassure noble Lords that there is nothing in this Bill that will reduce, inhibit or compromise the powers of the existing commissioners.
I want to quote something that has been quoted already—from the evidence that was given to the Select Committee for Welsh Affairs. The Welsh Secretary for Health and Social Services made this absolutely clear when she said—she was pressed very

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hard on this point—that the UK commissioner does not take anything away from the role of the Welsh commissioner. She or he will still be able to make representations to the Assembly about any matter affecting the rights or welfare of children in Wales, including non-devolved matters.
So in relation to the question the noble Lord, Lord Roberts, raised: yes, he will still be able to take issues to the Assembly, and from the Assembly, with the support of the ally that he has in the Health Minister in Wales, to the Secretary of State for Wales. In response to the noble Lord, Lord Thomas of Gresford, who raised the question of his present access to other secretaries of state, I suspect that this is actually an informal arrangement that has grown as the Welsh commissioner has developed his powers. It is extremely important that we are clear that, just as now, he can take up those powers through the Assembly with the Minister's support, but in future he will also be able to call on the UK commissioner, who is there to help him by offering him the extra access to Parliament and across government in terms of non-devolved issues. How much extra benefit that is going to bring, to have formal access to the relevant Secretaries of State. Therefore, as I see it, this is not fragmentation at all. This is bringing extra strength and coherence to what is available for children. I address that point to the noble Baroness, Lady Finlay.
It has been suggested that children might be confused by having two commissioners. We must resist this idea. It is a false argument. Whether children are confused about where they might go will depend a lot on how the commissioners in the devolved countries present the case themselves. They are expert already at communicating and liaising with children. They would not want to confuse the children in Wales and in Scotland by suggesting that there was a competitive, alternative route, unless they had already been able to talk to those children about what extra benefits that might bring.
I sincerely believe that we want clear lines of communication. That will depend a great deal on the commissioners in the three other countries offering a seamless service themselves, working closely with the new commissioner, as we intend—I shall come to that later—so that the service offered to children is seamless. There will be no distinctions drawn. This will be a one-stop shop, as it were. This is work in progress, and the arrangements will have to be worked out, but let us not pre-judge this by suggesting that there will be wilful confusion that will somehow disadvantage children. We do not believe that that will be the case at all.
Let me turn now to the short debate we have had on devolution and the powers of the Welsh commissioner. I take entirely the point noble Lords have made. Indeed, in turning to Amendments Nos. 71 and 71A, I congratulate the noble Baroness, Lady Finlay, on her ingenuity in opening this debate up to the Care Standards Act 2000, which is where it should be.
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We want to congratulate Peter Clarke on the start he has made, and on his extremely successful efforts to communicate with children and young people and to establish the profile of the commissioner. He is indeed an effective champion for children, but I should say—and I say it in all sincerity—that this is not the place to reopen the debate on the extent of the commissioner's powers in Wales, because it does mean opening the debate about the devolution settlement. The noble Lord, Lord Thomas of Gresford, does not like the term "devolution settlement". Indeed, he is right that the Richard commission is preparing the ground for future debate and that the Welsh Assembly is debating the issue. It is another matter in the development. Let us have that debate, but this is not the context in which to reopen the debate on the powers of the Commissioner for Wales. I took a great deal of comfort from the noble Lord, Lord Roberts, who gave a powerful explanation of why we should not do so. The noble Baroness, Lady Finlay, will not therefore be surprised to learn that we cannot accept Amendments Nos. 71 and 71A.
It will also not surprise Members of the Committee to learn that we are unable to accept Amendment No. 11 and the related Amendments Nos. 63, 65 and 72 because they seek to limit the scope of the commissioner's role in England. We are intent on extending the ability of children in the other countries to access new areas. The powers we have provided, which the amendments would remove, are important and the alternatives proposed would not fill the gap.
Amendment No. 72 cannot be considered alone—it has to be seen alongside Amendment No. 11 and, to a lesser extent, Amendments Nos. 63 and 65. Amendment No. 72 seeks to create a UK function to replace that which would be removed by the amendment to Clause 2. However, it is not clear whether Members of the Committee moving it want the Children's Commissioner to have a UK-wide role through working with other commissioners or for each to be wholly responsible for his own country. Therefore the amendment is flawed in its wording and, given the scope for confusion, it would not deliver an acceptable alternative. Members of the Committee might therefore want to withdraw it.
Amendment No. 73 presents another form of confusion. We suspect the intention was that the commissioner should not become involved in the affairs of the devolved regions but in practice the amendment has the opposite effect. I will write to noble Lords on the amendment because it is a difficult and technical issue.
I turn to the practical aspects that have been addressed by several noble Lords. How will the commissioners work in relation to each other's responsibilities? We have spoken of a memorandum of understanding—and again it is work in progress. I can assure the Committee that we intend the four commissioners to take part in a shared and equal discussion to draw up appropriate protocols.
It is difficult for us to be drawn into detail because the memorandum of understanding is to be owned by them. It will work if they each sign up to it. They are

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independent commissioners and their programmes of work and priorities will grow from what children tell them, just as the noble Lord, Lord Elton, would want. Therefore, we do not see it as our job to tell them what to put in the memorandum of understanding, but we will be able to come back to the House as progress is made.
In answer to a specific question asked by the noble Earl, Lord Howe, the definition of "children in Scotland" and Ireland is "normally resident" in those countries. The noble Baroness, Lady Finlay, asked whether children in Wales were consulted about the new English commissioner. Our consultation was essentially through the Welsh Office, the Welsh Assembly and the Welsh Commissioner. A lot more consultation remains to be done and children in Wales were obviously involved in the consultation document, Every Child Matters. We shall certainly ensure that Welsh children are fully involved at all future stages.
I want to return to my original theme; the relationship of the UK commissioner to the other devolved commissioners. As I said, we have created an English commissioner with scope across the UK to reflect and assist with issues that are devolved to the other three countries. We believe that they are useful and necessary powers, but I understand from what noble Lords are saying that they may find the language confusing and of concern. We do not believe that it is so, but having listened to the debate we will take it away and see if we could use clearer language to ensure that there is no room for confusion.
Baroness Finlay of Llandaff: While the Minister is on her feet I wonder if I might probe her a little further on the memorandum of agreement to which she referred. If the English commissioner came to an agreement with the commissioner in Wales and within that memorandum of agreement they wished to have direct lines of communication from Wales to the Home Office, for example, what would be the position with the Bill as it stands?
Baroness Andrews: A memorandum of agreement is essentially an administrative instrument and could not interfere with the distribution of powers and the way in which they were used. I shall take advice on the matter, but I think it is extremely unlikely that that could be done.
Lord Elton: In that case, will the Minister interpret for me and other members what she meant when she said that the Government would come back to the House? At one stage when she was talking about the memoranda of understanding she said that they should grow naturally and she did not doubt that she would be able to come back to the House. Will that be during the passage of the Bill or on some other occasion, and if so, when?
Baroness Andrews: We do not have the timetable of the drawing up of any memorandum of agreement at the moment. It is very much work in progress. All I was
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saying is that as the Bill's passage evolves, if there are things within our scope to come back and tell the House about the development, we certainly will do so.
Lord Thomas of Gresford: I do not expect turf wars between the commissioners for Northern Ireland, Scotland, Wales and England, but close co-operation. However, that is not the point. The importance of the commissioners is their ability to be advocates for children with the relevant Ministries; shall we say, the Home Office? Up to now, the Welsh commissioner has informally been able to take up the cases of individual children with the Home Office and obtain replies from that department.
If the English commissioner comes in with no remit to take up individual cases, I postulate a system where there is a youth in a young offender institution in Wales who is being abused, either by fellow inmates or by staff. The Children's Commissioner for Wales could today take up that individual case and pursue it with the Home Office, not because of any statutory powers but because that is the practice that has grown up.
I am sure that the English commissioner would be standing by applauding his efforts if that were to happen, but what would the Home Office reaction be? Would it not say to the Welsh commissioner, "I am sorry, chum, we listened to you before, but now that there is a UK commissioner whose responsibility is for non-devolved matters in Wales, we're going to listen to him. If he doesn't have the power to take up individual cases, tough—we can only look at the situation as a whole"? The individual being abused has thereby lost the championship of the Welsh commissioner and it has not been replaced by the so-called United Kingdom commissioner.
With the greatest respect to the Minister, of whom we are all fond in Wales and in the Committee, what communication has there been with colleagues in her party who are now in government in Cardiff—I have to make the point that the Welsh commissioner came from the co-operation between the Liberal Democrats and Labour in Wales—who are almost the majority party in the Assembly and who voted 50 to nil against the policy that she is putting forward today? Surely they have some influence on the way in which this Government are thinking here. If they do not, if anything undermines the devolution settlement, it is that this Government will not listen to what Members of their own party are saying in the National Assembly.
8.30 p.m.
Baroness Andrews: I can assure the noble Lord that we have very close contact with our colleagues in Cardiff. I was speaking to Jane Hutt only hours ago about the fact that the Welsh Assembly had given its full support to the Bill as a whole, and we welcome that. We are mindful of the feelings of the Assembly Members. I simply reiterate that Jane Hutt said very firmly in committee that there would be no change and no loss in the powers of the Welsh commissioner. I can do no more than reinforce that point. The commissioner will be able to go to the Secretary of State for Wales via the Minister, as he does now, with

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whom he has informal relationships. However, the routes that are taken and the processes that are applied will be worked out between the commissioners.
Although I hesitate to advise patience, I believe that during the course of the Bill we shall become clearer on some of these matters. However, I can assure the noble Lord that we are alive to these issues.
Lord Elton: As a Back Bencher, I am becoming increasingly confused. From what has been said, I am learning that there is a system in Wales which protects children and in which the children's champion has access, informally or formally, to offices with non-devolved functions relating to Wales. I am now told from the Front Bench opposite that, in spite of that, we are to introduce a new element and that the interrelationship of the two is so symbiotic and complicated that we are not to know, while we are legislating for it, what it will be and we must wait to see how it evolves. I do not think that that is the way to legislate. We should make things simpler and not more difficult and more certain and not more uncertain.
Baroness Andrews: I very much hope that our consideration of the Bill is not confused; I do not believe that it is. When we come to debate later clauses, we shall consider the powers of the English commissioner to take up cases. In fact, the English commissioner will not be able to pursue individual cases in the same way as the Welsh commissioner can. That is one difference.
The question raised by the noble Lord, Lord Thomas of Gresford, concerned the ability of the Welsh commissioner to continue to do the things that he does at present. I have given assurances that that is absolutely the case and that there will be no change in that respect. The UK commissioner will have some additional scope, in terms of access, to represent issues which are now presently reserved. In that case, the relationships will be complementary and supportive. We shall pursue these issues at various stages of the Bill—perhaps in more detail.
Earl Howe: I am most grateful to all noble Lords who took part in this debate. I was also grateful to the Minister when she said that she would look at the wording highlighted by noble Lords to see whether it could be made a little clearer. However, I am sorry that she resisted the thrust of the argument that I and others attempted to put forward.
The Government's route here may be logical but I suggest that it is not the only logic. It depends on your starting point. If your starting point is the logic that flows from the devolution settlement, if I may use that phrase, you will end up with the Bill as it now is. If your starting point is the advocacy arrangements that children are likely to find simpler, more understandable and less confusing, then I believe that you end up roughly where I suggested in the amendments that I tabled. The arguments advanced by the Minister are essentially top-down arguments, and that is what I find unappealing about them.
I do think that there is merit in re-examining the idea of each country having its own commissioner who fully understands the law of that country as well as
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its language, culture and demographic characteristics, but the key point is that in each country there should be one person to whom children have easy access and who is in a position to take a holistic view of children's needs. That is the express view of the three current commissioners, who made a joint public statement at the end of March to that effect. The second speech by the noble Lord, Lord Thomas of Gresford, was extremely powerful in that context.
I worry a little about the term "UK commissioner" because although the Children's Commissioner is described in the Bill as being responsible for children in the United Kingdom, Clause 5 makes it very clear that he will not be concerned with the views and interests of children who fall under the remit of any of the other three commissioners, in relation to devolved matters, nor may he undertake inquiries into any devolved matters. It is therefore a little hard to see how he can be in the fullest sense a UK commissioner.
But we have explored this subject in some depth. We all have much to reflect on between now and Report and it is time to move on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews: This might be an advisable time to withdraw, so I suggest that the Committee adjourn until 9.10p.m.
[The Sitting was suspended from 8.37 to 9.10 p.m.]
Lord Lucas moved Amendment No. 11A:
Page 1, line 9, at end insert "(or who are temporarily abroad as a result of the posting abroad of a parent with Her Majesty's Armed Forces or Diplomatic Services)"
The noble Lord said: In moving Amendment No. 11A, I shall speak also to my other amendments in the group. These amendments have one thing in common, which is they have nothing whatever to do with each other. This is one of those groupings which is put in occasionally to hurry up the progress of the Committee—particularly after any group that involves the Welsh. Perhaps I may take my amendments in order. So far as concerns the other amendments, I will listen and learn from other speeches.
Amendment No. 11A concerns principally our Armed Forces. We currently have 25,000 children abroad with the Armed Services. The responsibility for matters relating to those children flows through the Ministry of Defence. Generally, the Ministry of Defence has other things on its mind, particularly when it comes to budgets; and children's matters rate somewhere below cigar lighters for generals. It commonly takes many years for improvements that we make in this House to children's services in the UK generally to filter through to the children of Armed Services personnel who are abroad on active service.
We should take the opportunity of the Bill to shift that gently in the right direction. I have two amendments on the subject, one at this end of the Bill and the other right at the back end—Amendment No. 247A. Amendment No. 11A would extend the remit of the Children's Commissioner to those children of personnel serving abroad. Obviously, when

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they come back to the UK they will be under the commissioner in whose patch they happen to be living. I shall not try to rehearse the arguments of the previous amendment. While the children are abroad they have no one looking after them. We should try and do something about that.
Amendment No. 18 is my second amendment in the group. It is really cheeky of me putting it in because I have absolutely nothing to teach the noble Baroness on the matter. I have long talked about the need for research and evidence-based policies. The noble Baroness has actually done something about it and has begun to bring that sort of attitude into the DfES, for which I am enormously grateful. The amendment merely raises that flag again and says, "When we are trying to put together policies for children, let us gather evidence and produce a solid evidence base for whatever it is that we are proposing to do. And let us allow and encourage the Children's Commissioner to promote and direct such research".
My third amendment in the group is Amendment No. 32. It really just picks up an uncertainty that I had about the way in which the Bill was constructed, in that it is clear that the Children's Commissioner will not be in a position to offer advice to individual children. None the less, a lot of individual children are going to contact him. One gets into problems with data protection rights and child protection and so on.
It is clear to me that whatever we do, it has to be possible for the office of the Children's Commissioner to direct or pass on children who come to him to those who are capable of dealing with individual children. I want to be absolutely sure that he has the powers and rights necessary to effect that passing on. It takes a lot of courage for a child to raise a matter with an adult. If the first time they do that, their voice falls on stony ground, their voice may never be heard again. I want to avoid that if at all possible.
Amendment No. 41, which is my last amendment in this group, comes back to a discussion that we had on Amendment No. 17. Subject to correction, it is my strong recollection that it is the common practice to lay out in primary legislation how a commissioner, or a similar body, might report. It rather sets the relationship between that body and the Minister and the public at large. At the moment, the commissioner has a right to report to the Secretary of State, but he has no right in the Bill to report to the public. The noble Baroness said that there is nothing to stop him doing that; yes, but there is no right for him to do it. I want the Bill to be clear that the commissioner has the right to go public. He does not have to sit and wait for the Secretary of State. He will not be one of those people who puts a report in to the Secretary of State and two years later it is not published. We have entirely too much of that.
This will be a commissioner who has a right to be heard. Although there may, out of courtesy and good practice, normally be some advance notice for the Secretary of State, and he might expect to get things a month or two in advance, he should not dictate the publication date. I advance those arguments with the
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object of hearing what the Government have to say on the subject; at this time of night, I certainly haw no intention of dividing the Committee. I beg to move.
Baroness Walmsley: I rise to speak to Amendments Nos. 12, 15, 16, 21 and 23 in this group, and to support the noble Lord, Lord Lucas, in particular in his Amendment No. 41. I too am in favour of a commissioner who has a right to be heard.
The purpose of my amendments is to probe the scope and functions of the Children's Commissioner and the resources available to her or him. For example, how will the work of the commissioner influence government policy across all departments, their related quangos and other policy-making bodies? Will he or she be able to commission or sponsor other organisations to conduct research on his behalf? How influential will the commissioner be in practice" Where the issue concerns the interests of children, will he or she be formally consulted by bodies such as the Commission for Racial Equality, the Learning and Skills Council or the Advertising Standards Authority? How will that work in practice?
Amendment No. 12 would further strengthen the dreaded "R" word—children's rights—by allowing the commissioner to require anyone exercising functions, or engaged in activities, affecting children to take account of their views and interests. It is all very well the commissioner having to take account of children's views and interests, but it would be good if he or she were able to require other people to do the same. Amendment No. 15 would replace the rather weak provision on considering and researching complaints procedures for children, with the altogether more robust duty to review and report on the effectiveness of advice and advocacy services, complaints procedures, inspection and whistle-blowing arrangements, so far as they relate to children. The same sort of thing applies to the Commissioner for Wales.
Amendment No. 16 allows the commissioner to participate in matters affecting children on bodies to which he or she is appointed. It seeks to probe the Government's intentions for the commissioner's influence in relation to quangos and other bodies. It will allow the Minister, if she will, to give further clarification of the resources available to the Children's Commissioner.
If the Government do intend that the commissioner will have influence over the work of such bodies as relate to children, will there be sufficient resources available to make such an involvement manageable? How does the role of the Children's Commissioner in relation to other bodies compare with the functions of other similar bodies such as the General Teaching Council? A key part of its role is to advise government and other education partners on issues affecting the profession, based on teachers' views and expertise.
Amendment No. 21 is very similar to Amendment No.18 in the name of the noble Lord, Lord Lucas. That allows the commissioner to sponsor research by other bodies. But there is again the resource implication. The

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proposed funding of the Children's Commissioner is minimal. To be effective both the amendment of the noble Lord, Lord Lucas, and mine would need funding. The resources available would have to be substantially increased.
Amendment No. 23 was referred to by the noble Lord, Lord Rix, a little earlier and I added the word "all", which relates to "all children". The reason for that was to satisfy the many lobbying groups. We are all very grateful for their help. They wished to insert different kinds of children. When I was presented with such amendments it occurred to me what the Minister was likely to say in reply. I suspected that she would say that the provision would refer to all children and it was not necessary to specify particular groups.
However, without a pro-active statement on equality in the Bill, disabled children, asylum-seeking children, children in custody, the children of ethnic minorities and Travellers' children, may not benefit fully from the work of the Children's Commissioner. Therefore, it would be very helpful if the noble Baroness would look favourably on inserting the word "all" to send out a message to all groups that every child is included in the measures encapsulated in the Bill. I look forward to hearing the Minister's response to all these amendments and in particular to Amendment No. 23.
Lord Rix: I thank the noble Baroness, Lady Walmsley, for including the word "all". As she well knows, I represent those with profound intellectual and multiple disabilities. They are included in "all children". I say to the noble Lord, Lord Lucas, that I would be much happier about Amendment No. 41 if it included at the end "in all accessible formats". That would make it available to people with all manner of learning difficulties and disabilities.
Baroness Howe of Idlicote: I shall speak briefly to Amendment No. 28. My noble friend Lord Northbourne had to leave early. I shall do my best to make one or two of the points which I am sure he would have made.
The Children's Commissioner is to be concerned particularly in this area with the views and interests of children. Four or five examples are given. There is a real concern here which is why the amendment has been tabled. One area of a child's life which is not even remotely covered is that in the family. Referring to what was said on a previous occasion, I know that a major concern —
A noble Baroness: That amendment is in the next group.
Baroness Howe of Idlicote: I am so sorry. I shall sit down.
Earl Howe: I shall speak in particular to Amendment No.19, which is included in this group. Clause 2(2) of the Bill specifies that one of the functions of the Children's Commissioner is to advise the Secretary of State on the views and interests of children. While that is not an objectionable provision in itself—indeed, quite the contrary—it seems not to
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go far enough. Surely, the point of having a commissioner whose job it is to represent the views and interests of children, is that he should be able to do so not only to a single Minister but also, where necessary, across all departments of government.
Any piece of planned-for legislation of any description which looks as though it will impact on the interests of children should be the commissioner's business. He should be consulted on it and have the right to make his views known to whichever department of state happens to be sponsoring it.
I cannot see anything in the Bill that would enable the commissioner to adopt such a role or give him the right to adopt that role, yet it seems to me to be a role that is absolutely crucial. Who other than the commissioner will there be with a mandate to protect children's interests across government as a whole?
I hope the Minister will be receptive to this point because, quite apart from the debates we have had on whether or not the commissioner should be concerned with children's rights, there is no earthly reason why he should not have a duty similar to that of his three counterparts in Scotland, Wales and Northern Ireland to make recommendations to government as a whole. That should be not only implicit but also spelt out in the Bill.
Turning briefly to Amendment No. 15, perhaps I may ask the Minister for some reassurance on Clause 2(2)(c) which, as she may know, has caused some fluttering in the dovecotes in certain educational circles. The point has been made to me very forcefully that in our schools there are already nationally endorsed procedures in operation for the handling of complaints; on top of those, many procedures exist at school level as well. So we are not therefore looking at a uniform set of arrangements. The power given to the commissioner to review complaints procedures could, if we are not careful, turn into something quite bureaucratic and far reaching. I can quite see why this provision has been included in the Bill, but it is a power that will need to be used with some care if schools are not to find themselves disrupted quite considerably.
Baroness Finlay of Llandaff: The amendments in this group are very important. From Amendment No. 12 onwards they seek to strengthen the role of the commissioner. Amendment No. 15 is particularly important for alleged cases of abuse because it would protect children in a children's home, an area of great concern over recent years.
It is with hesitancy that I seek reassurance that Amendment No. 16 would not undermine the independence of the commissioner, who should be free to go wherever she or he feels appropriate. I am concerned that appointments to bodies might result in a conflict of interest arising at some stage.
I wish also to ask the Minister how, without the power to research, the audit requirements of the commissioner's office under public scrutiny would be met? Without the power to research, I am concerned that there could be an impedance of accurate data

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collection and that the processes of inquiry would need to be expanded beyond the date of their workings of the role.
Lord Hylton: The noble Lord, Lord Lucas, has done the Committee a service by giving the number of children belonging to members of the Armed Forces and diplomatic and consular services who are at any one time serving overseas. In doing so he has added strength to the argument that the words "all children" should be in the Bill. I support his Amendment No. 41, which seeks to give the commissioner the right to publish material on his own initiative. This would helpfully strengthen the role of the commissioner for England or for the United Kingdom.
I also support most or all of the amendments tabled by the noble Baroness, Lady Walmsley. Amendment No. 12 seeks to introduce the word "require". It seems to me that that would strengthen the role of the commissioner in a useful and practical way.
Amendment No. 15 relates to independent advocacy. I should mention here a practice that has been going on in Northern Ireland for quite a number of years and to which I have previously spoken, in other contexts, in your Lordships' House. I refer to the provision of independent advocacy services for young people contained for long, short or medium periods in secure establishments. It has worked out very well in practice; the independent lay advocates have been trained by a voluntary organisation in Northern Ireland with which I happen to be connected. I think there is a strong case for learning from that experience in Northern Ireland, and replicating it or introducing it into England and perhaps even other jurisdictions.
9.30 p.m.
Baroness Ashton of Upholland: I sympathise with much of the thinking that lies behind the amendments in this interesting group. It is very important that the commissioner is effective in promoting the views and interests of children, consulting as widely as possible and having a broad vision of what constitutes their needs and interests. Noble Lords have raised many different concerns about the coverage and nature of that role which is, in a sense, what binds the amendments together.
I agree with the noble Lord, Lord Hylton, that the noble Lord, Lord Lucas, has raised an important point in Amendment No. 11A, which would ensure that the provision extends to service families overseas. Amendment No. 23, in the name of the noble Baroness, Lady Walmsley, would ensure that the commissioner's role covers all children. There is a separate group of amendments on the role of the commissioner in relation to children with particular needs, to which the noble Baroness alluded. We will no doubt discuss the particular needs of those children on another occasion.
I begin by assuring the Committee that the commissioner will indeed be the champion of all children, be they the children of service families living abroad, the children of families seeking asylum in the
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UK, children who are looked after or those who go to the local school, nearest to where they were born. The commissioner's role will extend to all children. It is my understanding that the Bill's wording encompasses all children, but I will take that away and see whether inserting "all" adds anything to our deliberations, which I believe the noble Baroness and the noble Lord, Lord Rix, want me to say. However, noble Lords can rest assured that the wording of the Bill covers all children. There are no exceptions; noble Lords would not wish it otherwise, and neither would I.
I am also very grateful for the detailed attention that noble Lords have paid to the way in which the commissioner carries out his or her role. Amendment No. 16 states that the commissioner should be able to sit on bodies that affect children—something of concern to the noble Baroness, Lady Finlay—and could be a consultee in inquiries or aspects of work carried out by other organisations or bodies.
Amendment No. 21, along with Amendment No. 18 in the name of the noble Lord, Lord Lucas, aims to allow the commissioner to support research and pilot projects. Amendment No. 41, also in the name of the noble Lord, Lord Lucas, seeks to ensure that the commissioner can promote discussion and express views across the whole of his or her remit. This relates to Amendment No. 19, to which the noble Earl, Lord Howe, spoke; it seeks assurance that the commissioner will advise and consult with all government departments on matters relating to children.
I agree with them all. The commissioner should be able to do these things, assuming that this is what children want the commissioner to do. The commissioner's job is to be responsive to and face children in all the work that he or she undertakes. There is nothing to stop the commissioner doing the things that I have identified. I hope that with those reassurances, the noble Lord, Lord Lucas, will feel able to withdraw his amendment.
Baroness Walmsley: Before the Minister sits down, will she confirm that were the commissioner to serve on other bodies in his or her capacity as commissioner representing the interests of children, he or she would not be likely to be compromised in any way in terms of conflict of interests, as was suggested by the noble Baroness, Lady Finlay of Llandaff? Will the Minister say whether such attendance would be properly resourced by the Government?
Baroness Ashton of Upholland: On the second point, it will be for the commissioner to determine how the resources should be spent. It is quite within the remit of the commissioner that, if he felt that it was important to bring to the attention of the Secretary of State the fact that he wished to perform a function, resources could be discussed. However, it would be wrong of me to commit the Government at this point. It is up to the commissioner to decide whether he wishes to sit on bodies or take part in other ways, and not up to us to constrain or prescribe. However, if

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there is concern about this matter, perhaps we can explore it outside the Committee to see whether I have understood the noble Baroness's concerns.
Baroness Howarth of Breckland: Perhaps I could add a question? Those who sit on non-departmental bodies and other groups have a primary responsibility towards that group. I would be concerned if the commissioner represented something other than the work of that group. Therefore, I think the matter needs teasing out and thinking through. There could be real conflicts of interest, which, if not thought through, would cause real difficulty, both for the body and for the independence of the commissioner.
Baroness Ashton of Upholland: It is always interesting when an amendment goes in a different direction to the one I presumed. Our view is that the commissioner will make a decision about which bodies to sit on. However, in the light of what has been said, we should either correspond or meet to tease out the issues—as the noble Baroness, Lady Howarth, just said—to be absolutely clear. I hope that that satisfies noble Lords.
Under the legislation as it stands, the commissioner can do all those things, including issuing reports on subjects and engaging with all government departments outside of the annual report to Parliament. Rather than put them on the face of the Bill, we feel that it is important for the commissioner to be free to respond to children and young people in deciding what to do. The commissioner is free to do those things. Therefore, I hope that those particular amendments can be withdrawn.
We have already dealt with Amendment No. 43. Turning to Amendment No. 11A, I want to reassure the noble Lord, Lord Lucas, that it is our firm intention that children temporarily living abroad while their parents are on official duty overseas will have access to the commissioner should that be appropriate. Because we have not had time between the tabling of this amendment and this debate, I shall check the legal technicalities of the children's situation. Should it be necessary, the Government will introduce an amendment to ensure that they are properly catered for, as the noble Lord would expect.
Amendment No. 32 gives me a chance to clarify a little more of the commissioner's role. It is to promote awareness of the views and interests of children, and to make children aware of this function and of how they may communicate with the commissioner. Although it is inevitable that children will get in touch about individual problems, as we have made clear in all of our discussions and statements, we do not want the commissioner to be drawn into such inquiries. That is not an appropriate role in this context. There is no reason why the commissioner should not advise on general sources of help available for different kinds of problem, but we would not want him to have a formal referral role. Our understanding is that the commissioner could already offer general advice, but I am double-checking the position to ensure that that is correct. If there is anything in the existing Bill to prevent the commissioner providing such general advice, the
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Government will introduce a suitable amendment. On that basis, I hope that the noble Lord will feel able to withdraw Amendments Nos. 11 A and 32.
Amendment No. 12, tabled by the noble Baroness, Lady Walmsley, and supported by the noble Lord, Lord Hylton, would make sure that the commissioner makes a difference to the way in which services take account of children's views. I share that intention, but it has to be for the services themselves to change. Taking account of children's views will be central to being able to deliver effective services and should be part of performance management processes. It would be wrong for the commissioner to act as another formal inspectorate, which is what would happen, albeit that is not entirely what the noble Baroness planned. That is not to say that the commissioner should not comment on how well this is achieved and approach services, inspectorates and the Government with views on what they need to do to improve. With that reassurance, I hope that the noble Baroness will feel able to withdraw that amendment.
Finally, Amendment No. 15 would expand on the particular focus that the commissioner will have on ensuring that complaints procedures are accessible to children and young people. The noble Earl, Lord Howe, raised a particular concern which I hope I will address in the course of my comments.
The intention behind the existing subsection (14)(c) is to reflect the commitment in the Green Paper that complaints processes should be looked at by the commissioner to assess whether they work for all children and young people. Clearly the advice and support available is crucial to this and would be included in what the commissioner would look at in carrying forward this part of the commissioner's remit. There is nothing to stop the commissioner looking at after-services such as statutory advocacy provision; indeed, those might be especially relevant in his specific role in supporting children who have more difficulty in making their voices heard. However, this specific remit is perhaps relevant to particular groups of children. On that basis, we would not wish to see this provision on the face of the Bill.
With those assurances—and, I hope, reassurances to the noble Earl—on the intent behind this part of the function of the commissioner, I hope that noble Lords will feel able to withdraw or not to press their amendments in this group.
Lord Lucas: I am very grateful to the noble Baroness for the explanation she has given particularly on Amendment No. 11A. I entirely accept what she said on Amendment No. 18. On Amendment No. 41. I shall go away and check my precedents. I will probably not come back on it when I discover that she is right and I am just being argumentative.
I have remaining concerns on Amendment No. 32. When an adult rings up one might say, "Sorry, no; it is not for us. Why don't you try so and so?". An adult is well capable of dealing with that sort of advice and, particularly if they are provided with a telephone number, will pick it up again. I think that children are rather

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different, particularly children who have any variety of distress, problem or difficulty. It can require a great deal of bravery to make one of these calls. If the first one happens to be to the Children's Commissioner whereas it should have been to Childline, it is very difficult to say to the Children's Commissioner, "No, you cannot take their telephone number. No, you cannot give it to Childline. All you have to say is, Don't talk to us. There's a list of other people you might talk to on our website"'. I think that that is second best. I know that it is difficult to act as a referral service, and I certainly would not suggest that that be done for adults. However, I think that to drop children back to stage one where they have to summon the courage again and find someone else to approach is not the best we can do.
I shall certainly return to the issue. I very much hope that the Government will have a chance to think through the matter again. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 23 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 24:
Page 2, line 5, at end insert—
"() the family;"
The noble Lord said: There is a companion amendment. Amendment No. 26, which does the same thing slightly later in the Bill. Amendment No. 24 tackles Clause 2(3), which lists the things with which the commissioner,
"is to be concerned in particular".
The amendment then provides a list of various matters that we are supposed to care about in relation to children. However, in that list there is absolutely no mention of family.
I have no particular attachment to the wording; I suspect that the noble Lord, Lord Northbourne, in his amendments, has done it better than I have. However, it is astonishing to make a list of things that are important to children and not include family. Family modulates so many of the other things that are in here to begin with. Furthermore, it has an enormous importance on its own—how things are going in the family; how relationships are going in the family; how supportive the family is being of a child. Many of the things that go wrong for children are due to difficulties in the family. Many of the other things that can go wrong for children are best dealt with by support given in the family. It is so crucial and central to a child's wellbeing that I am really quite astonished that we should have got to a point where we can list things that are important to a child's wellbeing and leave out family. I very much hope that this will turn out to have been an oversight. I beg to move.
9.45 p.m.
Baroness Howe of Idlicote: I support the amendment and, indeed, Amendment No. 28 which stands in the name of my noble friend Lord Northbourne.
It certainly seems fairly odd, if I can put it that way, that this major aspect of a child's life has been left out. Referring to what the noble Lord, Lord Elton, said on
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an earlier amendment, I rather wonder whether it is because we are concerned, as indeed we are, with those who are disadvantaged and whose rights do not exist within their family and so on. But we need to remember that this Bill is not just about those children; it is surely about all children. The vast majority of children have supportive families. Perhaps the need there is for them to be better supported.
We need to remember that most of the important things in life—love, security, encouragement, the boundaries that need to be set—also come from within the home. Therefore, it seems a little odd to ignore the views of children on this very important issue in their lives. Perhaps the Minister will be able to explain why this matter has not figured. One begins to wonder whether the right questions were asked if the Government have managed to leave out such an important chunk of the normal child's life. I leave it at that.
Baroness Massey of Darwen: I fully appreciate what this amendment is trying to do. Of course, the family is tremendously important in a child's life. However, it raises the question of what is a family. Some children will not be in a family as many of us would possibly define it. I should like to tease this out some more and consider what we mean by the family. For example, there are children in care and children who are in many different kinds of families. Although I fully understand what the proposers are saying, I should like further definition on the amendment.
Baroness Thornton: My problem with this amendment— I may be misunderstanding its meaning—is that the Bill is concerned with taking into account the views and interests of children. It is not that it excludes the family, but it is about children. What concerns me is that we might be tying ourselves into a situation where we have to take account of the views of children and families when what we really need to do is take account of the views of children.
Baroness Howe of Idlicote: I hope that I may add one very small point. The point that I was trying to make was that it is the children's views of family that seem not to have been included in the things that are relevant to their wellbeing.
Lord Elton: It follows from what the noble Baroness, Lady Massey of Darwen, said that the fact of children not being in a family is equally important. Perhaps we have to find a new way of formulating this whole subsection. But one cannot ignore what may be the biggest factor of all in a child's life when setting out the things that should be taken into account.
Baroness Howarth of Breckland: I have some concerns about the amendment because we are again trying to make the commissioner universally responsible for all things. When children in families want help it is because they are experiencing difficulty. They usually want one to leave their family alone in other circumstances. I should like us to be quite clear what we are saying in the amendment, if we suggest

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that the commissioner should have responsibility for families as well as all the other aspects relating to the welfare of children. We could be really into the nanny state if we make the commissioner responsible for all family life as well as everything else.
Baroness Walmsley: We on these Benches believe that the best interests of children usually lie within their families. There are a few exceptions to that, which I hope that some measures in the Bill will seek to address. That said, because of the difficulty of referring to "the family", I think that "the welfare of the child", which is referred to in the Bill, might cover the issue. We are all agreed that that welfare lies, on the whole, within the bosom of their family.
Earl Howe: I should like to add my voice in support of the amendments, particularly those in the name of my noble friend. He is absolutely right in all that he said. Growing up in a loving family is one of the most important benefits that a child can receive for his emotional development and general well-being. I find it strange that there is no mention of family anywhere in the clause.
By family, I do not think that we mean only parents, although parents are an integral part of what a family is. We also mean brothers, sisters, aunts, uncles, grandparents and cousins. For those who live in foster families, it is the foster parents and perhaps their relations. We mean a one-parent family in some cases. Any child who grows up not experiencing the security, example, comradeship and love of his own family has missed out on a very great deal in life. It is not enough to look at the aspects of well-being listed in subsection (3) and try to convince ourselves that such things are somehow subsumed under the headings that we find there; they are not. We need to spell out in terms that a child's family life is a vital and irreplaceable part of his happiness and well-being.
It worries me sometimes when certain people talk about the best interests of the child being paramount. They do so in a way that appears to assume that one can define a child's best interests in total isolation from the relationship that he has with his parents and family. I had that worry when we were debating the adoption legislation two years ago, and I have it now.
The public authorities, whose function it is under Clause 6 to improve the well-being of children, should not be allowed to suppose that their objectives can be achieved without reference to a child's place in his or her own family. Everything that they do should be based on the presumption that families do best by being kept together, and that only in extreme circumstances should the removal of a child from his family be contemplated. Only by placing "family" in Clauses 2 and 6 can we be assured that social services, the police, the commissioner and other authorities will be obliged to pay explicit regard to that presumption.
Lord Rix: May I make a rather wild suggestion at this late hour? Clause 2(3), which is on page 2, states:
"The Children's Commissioner is to be concerned in particular under this section with the views and interests of children so far as relating to the following aspects of their well-being".
It then lists those aspects in paragraphs (a) to (e). Could we not add, in a paragraph (f), "their relationship with a family"? That would solve the entire problem.
The Earl of Listowel: I support my noble friend's amendment. As I said earlier, I am concerned that it is simply too easy to isolate children when one speaks of them and to forget that most of the time they are within some caring context—with an adult or parent caring for them. Government policies on parents and supporting a child poverty strategy are very welcome, but when the financial incentive for parents, even of a child under one, is to go to work rather than to look after the child—although, I believe that that is beginning to change—it is easy to slip into isolating children and forgetting what they are in this context.
There is a culture in this country that perpetuates the undervaluing of those who provide care—whether they are parents, social workers or foster carers. Compared with the continent, we simply do not do enough to value the people who provide care for children. That is another reason why I shall listen with great interest to the Minister's response, because we need to build that culture of recognising the vital role that parents and carers play for children. I am worried that if we do not include "family" within that, we might be missing an opportunity to build that consensus for valuing more the support for children that is provided by families and other carers.
The Lord Bishop of Chester: I rise briefly to support entirely the intention behind the amendment. I am told that elephants live about as long as we do, but whereas baby elephants, when they are aged four or five, are able to go off into the jungle on their own to fend for themselves, our children are dependent on parents, or whoever is in their place, for three or four, or even, nowadays, five times as long as is the case with elephants.
Indeed, those patterns of dependency for children and young people are being ever more enhanced—and top-up fees will simply add one more force to that, as has been said. Fundamentally, if we are to look at the wellbeing of children, we have to look at the close network of support that society seeks to provide for them, which, in most cases—and ideally—would involve the family. But the term "family", as has been hinted, embraces both the nuclear family, the immediate parents, and that which we have so often lost in our society, the extended family—the wider network of relations. There is an old African proverb that it takes a village to raise a child.
The thrust of the Government's proposals for the Children's Commissioner is to give that person a broad, wide-ranging, co-ordinating and overseeing brief; not to try to over-define or tie down but to give that person something of a free hand to look at the overall experience of children in our society and to

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help to formulate proposals. That means that the relationship of children to family must be part of the remit. I have my doubts about whether it should be specified as simply one more on a list, for reasons that have been given. But there is no doubt that from these Benches we can support the fundamental thrust of the amendment.
Lord Hylton: These are important amendments. Of the two approaches, I slightly favour that set out in Amendment No. 28 and I agree with my noble friend Lord Rix that we need to consider family life insofar as it affects the wellbeing of children. That is not only what we need to consider, but what the commission needs to consider in future. I hope that that approach will go some way toward satisfying my noble friend Lady Howe of Idlicote.
Earlier in our discussions the Minister talked about the commissioner having a strategic or systemic approach to the children who he has to take into account. We can generally agree that that is the right approach, but I would like to see the commissioner considering family life. because it is the principal source of the love and nurturing that children require if they are to develop into satisfactory, reasonable adults.
In order to try to help the Minister's consideration of this question. I will recall what was happening 30 years ago, sometimes slightly more, when I and many others were deeply involved in questions of homelessness, housing aid and advice. We defined homelessness not just for single people but for families, in terms of normal family life. We asked ourselves, "Do a given family's living conditions allow them to enjoy normal family life?". If they did not have sufficient living space, they were deprived of normal life and therefore ought to be considered to be homeless, regardless of whatever the statutory definition of homelessness might have been at that time. I offer that to the noble Baroness the Minister, in the hope that it may be helpful.
10 p.m.
Lord Elton: That was a singularly helpful illustration. Looking at the Bill, it seems to me that the process we are now looking at starts in Clause 2(2)(a). The children's commissioner may, in particular, under this section,
"encourage persons exercising functions or engaged in activities affecting children to take account of their views and interests".
We are talking about their relationship with their family. The commissioner will presumably have lines to the housing authority as well as to the education authority, the Probation Service and others who impact on the family, and will be able to make them aware of what the effect of their proposals may be on the child, as the child sees it. That could be a very helpful dimension. I think my noble friend's amendment is an exceedingly good one. Whether or not it is finessed in the way the noble Lord, Lord Rix, suggests or not, I leave to others to guess.
Baroness Thomas of Walliswood: I hesitate to prolong this, but I think we recognise that paragraphs (a) to (e) reflect the consultation process which was engaged in before the Bill, and the views of children as they were expressed then. Nevertheless, regarding the phrase "views and interests" of the children, we have already had a question raised on what the word "interest" means: whether we mean their interest—that is, their wishes or ideas—or the best interests, meaning the things that most reflect well upon the lives of children. That point was also made in relation to an amendment in the name of the noble Lord, Lord Lucas. Speaking not in a party political sense but personally, I come to a similar conclusion to that of the right reverend Prelate the Bishop of Chester; namely, that somewhere in this Bill we need to make it clear—and it may be that it is there already, I can see the Minister looking very speedily through her Bill— that we recognise the enveloping importance of the family and the life of the child.
Baroness Ashton of Upholland: I was looking speedily to make sure that I referred to the noble Baroness, Lady Thomas, when I get to that particular section in my notes. I am very grateful to all noble Lords who have participated in this debate—not least the noble Lord, Lord Rix, for coming up with an amendment that was promptly supported in the Committee. That goes beyond the manuscript amendment by my reckoning, but it was none the less an important part.
The purpose of these amendments is to add "family or family life" to the description of what we mean in the concept of well-being. It is an important concept in this Bill and, as the noble Baroness, Lady Thomas, said, we defined it in terms of the outcomes that children and young people told us they wanted to achieve. Our ambition is that a common understanding of outcomes should underpin the work of the commissioner and be a focus for the co-operation arrangements in Clause 6.
Amendment No. 24 from the noble Lord, Lord Lucas, and Amendment No. 28 from the noble Lord, Lord Northbourne, fall in Clause 2. Amendment No. 86 from the noble Lord, Lord Lucas, and Amendment No. 89 from the noble Lord, Lord Northbourne, fall in Clause 6. I entirely sympathise with the concerns of Members of the Committee that we acknowledge the primary importance of families, parents and carers to the outcomes achieved by children. I was only sorry that the noble Earl, Lord Howe, did not mention step-parents. As a step-mother, I take that personally—but I am willing to retract my personal outrage on the basis that I am sure he meant to include them.
However, I do not believe it is appropriate to amend the definition of "well-being" in this way. It is a direct translation of the outcomes which we set out in the Green Paper, Every Child Matters: being healthy; staying safe; enjoying and achieving; making a positive contribution; and economic well-being. As noble Lords heard me say earlier, that came from the extensive consultation exercise.
Amendments Nos. 24 and 28 also raise the question of whether the commissioner should consider family, family life or support to families to be within his remit. I can assure noble Lords that it can he. The

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commissioner will be free to determine the issues in which he takes an interest and this could well include children's views about what should or should not be done to support families and family life. There would be nothing to stop the commissioner from pursuing this as a proper topic for investigation, discussion and debate.
I turn to Clause 6 and Amendments Nos. 86 and 89. The outcomes are used again here to illustrate the scope and range of areas in which agencies will be co-operating to improve well-being. For the reason I have already given, I do not believe that we should alter the definition of "well-being". However, I agree with noble Lords that families and parents are extremely important in the context of the co-operation duties which are designed to improve services for children and young people.
Indeed, as I am sure noble Lords will know better than I, support for families and parents is a particularly good example of the kind of work likely to be done better as a result of better co-operation. In particular, the voluntary sector has real expertise in this field. We have also made it clear that parents and families should have a clear say in the way services are delivered.
We know from our experience with programmes like Sure Start that the involvement of parents and families is critical to the success of much of the innovative work we are taking forward; for example, through our children's centres and extended schools. We will expect local authorities and their partners fully to consult children, young people and their families in developing services. I am happy to confirm that this will be made clear through the guidance associated with Clause 6.
I hope your Lordships will agree that amending the list of outcomes is not the right approach. However—here I come to the noble Baroness, Lady Thomas—I agree with the right reverent Prelate and other noble Lords that it would be appropriate to put something on the face of the Bill to reflect the importance which the Government and services should place on parents and families. I undertake that the Government will consider how we can do that. I am sure, too, that we will return to this topic in detail when we debate amendments to Clause 16 in particular. In the mean time, with that reassurance as the way forward on this
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set of amendments, I hope that Members of the Committee will feel able to withdraw these amendments.
Lord Lucas: I am grateful to those who have spoken. I am immensely impressed that we should have had such a varied and wide-ranging debate at ten o'clock at night. For all noble Lords to have stayed for it is impressive and I hope that it has impressed itself on the Minister. I believe that it may have done.
If this Bill leaves this House with the word "family" in it and with real intent in its expression, we will have made a significant improvement. I have no particular affection for sticking it in this list—it is a question of how it lies in the Bill and its overall effect on it.
I must carry out some research and discover what questions children were asked that they should not mention "family" in the list. Perhaps if it is not somewhere obvious, the Minister could drop me a note. We will doubtless return to the matter again in Committee and on Report, but for now I beg leave to go home to bed.
Amendment, by leave, withdrawn.
Baroness Andrews: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.

Charities
A message was brought from the Commons, that they concur with the Lords that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Charities Bill presented to both Houses by a Minister of the Crown, and that the committee shall report on the draft Bill by 30 September 2004; and have ordered:
That a Select Committee of six honourable Members be appointed to join with the committee appointed by the Lords to consider any such draft Charities Bill.
That the committee shall have power—

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report from time to time;

(iv) to appoint specialist advisers;

(v) to adjourn from place to place within the United Kingdom; and

That the quorum of the committee shall be two.
House adjourned at ten minutes past ten o'clock.