§ 11.37 a.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 again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee —(Baroness Ashton of Upholland.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
Baroness Walmsley moved Amendment No. 78:
After Clause 5, insert the following new clause
"CONSISTENCY OF LEGISLATION WITH CHILDREN'S WELL-BEING
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—
(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.
(3) For the purposes of subsection (1)(a), the aspects of children's well-being are—
§ The noble Baroness said: The amendment would place on the Government a duty similar to the one under Section 19(1)(a) of the Human Rights Act 1998 to make a statement of compatibility with the five outcomes proposed in the Bill. It would also ensure a "child impact assessment" process for all new legislation, based on the same five outcomes as those that the Children's Commissioner under Clause 2 and local agencies under Clause 6 will have to account for. This would provide a much needed and effective mechanism for improving co-ordination and consistency of policy-making affecting children across all departments and levels of government.
§ The Bill proposes that one of the functions of the Children's Commissioner will be that of reporting on progress on the outcomes, and that the outcomes be used as the framework for planning and accountability for the new children's services authorities. But it is equally important that national government should themselves monitor and account for its impact on children's well-being.
§ The Children's Society, which suggested the amendment to us, is committed to the full implementation of the UN Convention on the Rights of the Child—as, indeed, am I and many other Members of the Committee. Ideally, we want the process of child impact assessments and the activities of the Children's Commissioner and local partnerships required by the Bill to protect and promote children's rights under the convention.
§ The Government have already agreed to an amendment on the commissioner's activities in this respect, and that is most welcome. The form of the Bill, however, is to rely on the five outcomes and, with that one exception, the Government's response to all requests to strengthen explicit reference to the UNCRC in domestic legislation has been consistently to resist what they see as a movement towards full incorporation of the convention.
I have serious concerns about how the outcomes will be implemented across government departments in all policy and legislation. It must be clear that optional or selective use of the outcomes would put at risk the aims and potential values of the outcomes framework. The use of the outcomes framework must be binding across government structures, not merely at local level. As stated in the Green Paper, Every Child Matters:
Everyone in our society has a responsibility for securing these outcomes".
§ Surely the crucial place to start considering whether responsibilities in relation to the outcomes are being met is with new legislation and policy. Starting with a clean sheet, presents the best opportunity to get it right.
§ We draw attention to the fact that the Bill is before the House of Lords at the same time as the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which proposes a number of measures that would adversely affect refugee children. That is a matter that noble Lords debated earlier this week and which would have benefited from a child impact statement to resolve the matter of withdrawal of benefits, which is very contentious.
The introduction of a formal process of assessing the impact of new policies and legislation on children has been recommended by a range of important bodies. These recommendations arise from and promote the UN Convention on the Rights of the Child as a yardstick for such assessments. The committee that commented on our implementation of the convention stated that it was concerned about the lack of,
any formal process to ensure that new legislation fully complies with the Convention. The Committee … is concerned that the State Party"—
that is, the UK—
does not ensure compatibility of the legislation with the Convention throughout the State Party".
The Joint Committee on Human Rights highlighted in its recommendations that child impact assessment would benefit from an,
even more comprehensive consideration of the impact of proposed legislation on children themselves",
§ not just through the prism of the impact on their convention rights.
The Minister for Children, Young People and Families in 2002, the right honourable John Denham, in evidence to the Joint Committee on Human Rights, said on the subject of child impact assessment:
I do not have an issue of principle about having child impact assessments".
§ That is what the former Minister had to say, and I hope that the situation still applies with the current incumbent.
§ The requirement that we propose in subsection (1)(b) of the amendment to publish the child impact assessment in the Libraries of the Houses of Parliament would significantly aid all parliamentarians in their consideration of whether and how the needs of children are best met and sufficiently protected by any new legislation, in the same way as the All-Party Parliamentary Group for Children benefits from the child impact statements which we commission on every Bill. They are enormously helpful, inform our activities in your Lordships' House and help us to improve Bills as they pass through your Lordships' House, for the benefit of all children. I beg to move.
§ Baroness David
I support the general intention of the proposed new clause, which aims to introduce what has become known as "child impact assessment" of new legislation. When I chaired the All-Party Parliamentary Group for Children in 1997 to 1998, we 881 commissioned and published child impact assessments on all the Government's Bills. It was a worthwhile experiment and I hope that it will now be taken up with a formal requirement for assessment.
However, the assessment should not be in relation to the outcomes for children, as suggested in the proposed new clause. The obvious framework for assessment is the UN Convention on the Rights of the Child, at which the noble Baroness may have hinted, and the set of detailed obligations to children, accepted by government with all party support when the convention was ratified in 1991. Parallel with the existing requirement for a statement of compatibility with the rights of the European Convention on Human Rights should be a similar requirement related to compatibility with the full range of human rights. In the light of the Government's concession on Tuesday, I hope that that will now be carefully considered.
§ 11.45 a.m.
§ The Earl of Listowel
I listened with great interest to the comments of the noble Baroness, Lady Walmsley. I have not had a chance to study the amendment in detail, but on the matter of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, the Government have argued that provisions are being made due to the irresponsibility of parents who have been through a thorough system and been rejected, and that we cannot allow those parents to use their children to undermine the system. The noble Baroness's approach might have been very useful in that debate, because it would have made it clear that however irresponsibly parents may behave—and regrettably some, though not most, parents do behave irresponsibly—we must always think very carefully about the welfare of children.
Under this Bill, the Government have not made clear how many families they expect to be affected by the legislation. They say it will be a few, but there is no hard fact there. If people are subject to this part of the legislation, they will be made homeless; they will not be able to get employment, except through illegal means; and their access to education will be undermined because they will be fearful of immigration officers catching their children—and with health, a similar problem applies. In such cases, I see the proposal as being a helpful way forward in preventing such dangerous legislation for children being implemented in future.
§ Baroness Andrews
I am grateful to Members of the Committee who have spoken in this debate, and to the noble Baroness who moved the amendment. Let me start by reassuring her that of course we support the principles behind the amendment, which are perfectly consistent with what the Minister previously said. Since she raised the issue of the 10th report of the Joint Committee on Human Rights, perhaps I should just remind her what the Government said. We said:The promotion and protection of children and their interests—through legislation, policy and effective service delivery—is a priority for this Government, as is the greater involvement of children in Government decision-making".882 That is where I want to start—by examining how we come at this principle in slightly different ways. but ways which are more effective in involving children.
Clearly, the concept of child impact statements is not new, and we are delighted that the all-party parliamentary group does what it does in that regard. We are sympathetic to the idea, and we are particularly pleased to note that the amendment refers to outcomes set out in Clause 2(3). I take the point made by my noble friend Lady David that outcomes are only one aspect, and what we are concerned about is the process that defines and ultimately delivers those outcomes with some confidence. As Members of the Committee will recall from the debate on the first day of the Committee stage, those outcomes are based on the children's own definitions of what is important to them.
There is no doubt that all the legislation that we pass in this House has an impact on children—I can think of no exceptions—and it is not the case that it is only children's services that have that impact. However, if we are to produce better outcomes, we must think and act along a wide range of agencies and procedures as well as through the process of legislation.
I assure Members of the Committee that there are three ways in which we do that at the moment. Ministers already consider such matters when planning and discussing legislation across government. There have been changes in recent years. From the Department for Education and Skills, my right honourable friend Margaret Hodge comments from her perspective of Minister for Children, Young People and Families. She has a specific remit to press children's interests across government.
In addition, we now have a new Cabinet subcommittee—MISC9(D)—which is chaired by my right honourable friend the Secretary of State for Education and Skills. That has broad cross-government representation, oversees the delivery of children's services and, I am delighted to say, includes my noble friend Lady Ashton. The point is to ensure that policy-makers take account of the views of children and young people directly in formulating policy and legislation.
In our response to the JCHR's 10th report, we affirmed our commitment to involving children, their parents and carers in children's organisations in the development of policy, legislation and services. We reaffirmed that in 2001 when the Government laid down core principles for the involvement of children and young people in government decision-making. That is a major step forward, because it lays down a common framework within which government departments must work to involve children from the outset, in developing policy right through to implementation and evaluation. We have chosen that approach because it is a formative route. It is not retrospective, but it is the one way in which one can guarantee that children are involved in the planning stages of legislation.
As part of that strategy, departments across Whitehall have developed annual action plans that set out how they will involve children. Those are available on the children's and young persons' website; I refer, 883 for example, to the development of legislation around the Children Trust Fund and the Treasury and the Adoption and Children Act 2002, which involved the DfES and the Department of Health. Those action plans should be seen in the context of everything else that we are doing to involve and to hear the views of children; for example, the consultation process on the 14-to-19 phase of education.
Importantly, civil servants will be involved in changing the culture of what we expect and listen to. Civil servants in a number of departments have already received training in involving children and young people in policy making. The National Children's Bureau, in conjunction with PK Research Consultancy, has produced a handbook entitled Building A Culture Of Participation. It offers workshops to officials across Whitehall which focus on how to listen to young people and how to use their views to bring about a change.
Child impact statements will not do that job. Considering the effect of legislation on children and young people retrospectively will never be as effective as involving them in an informative and influential role. I agree that these are recent developments and that we have some way to go. I take the point that noble Lords have made. However, I believe that this is the right way to go.
Our approach is supported by the functions that we have given to the Children's Commissioner, which is where the human rights argument will come into play. The Bill gives the commissioner the function of promoting awareness of children's views. Now that the Government have accepted Amendment No. 39, as the noble Baroness agreed, he will have to do so within the framework of the UNCRC. That will include his consideration of proposed new legislation. He will have the UNCRC framework in mind; he will be responsible; he will know that he will have to look at the impact of new legislation on children. Clause 2(2)(b) gives him the function of advising the Secretary of State of the impact on children of proposed legislation. That is how we shall be able to follow the outcomes that he determines.
It is more appropriate and effective to mainstream these processes across government by way of the commissioner's additional remit rather than to carry out what could be a lengthy and bureaucratic assessment. In some cases, that assessment might be made by people who are not experts in children's issues. With those assurances, I hope that the noble Baroness will agree to withdraw her amendment.
§ Lord Elton
The full weight of the Minister's reply was based on the degree of consultation with children themselves in the formulation of policy. She said that, with that process, we could be confident of making everything consistent with the aims which the Minister is wishing to test. Surely, in light of what she has said, it will be easier, not more difficult, to sign this paper.
My only question about the amendment is why that statement of consistency should not be written on the front of Bill, where there is already a statement by the 884 noble Baroness, Lady Ashton of Upholland, about human rights. We could then all see the contentment which the Minister has.
§ Baroness Andrews
As I have explained, we are offering an alternative process, which deepens the level of consultation. A statement on the front of the Bill is not necessarily sufficient. As I have said, the temptation would be to treat that as a bureaucratic exercise, which could simply be rubber-stamped, without our having to go through processes that would really test us on the extent to which we have reflected on the impact of legislation on children.
§ Baroness Walmsley
I thank the Minister for her reply and other Members of your Lordships' House for their support. I take on board particularly the comments of the noble Baroness, Lady David. Her suggestion is an improvement on my amendment, but it was written in that way in an attempt to fit it in with the Government's stated intentions in terms of the five outcomes of the Bill. I hoped in that way that I might tempt the Government to accept it, but I certainly also accept the comments of the noble Lord, Lord Elton. If all the consultation to which the Minister referred is being carried out—it is very welcome—it would be easy for the Government to sign such a paper and to put a statement on the front of the Bill.
Will the Minister write to inform me whether the remit of her right honourable friend Margaret Hodge, in looking at the impact of legislation on children, will be based on the five outcomes set out in the Bill or on the UNCRC?
I did not know about the training that civil servants are undertaking and it is very welcome. It is important to talk to children, of course, but we cannot expect children to be as knowledgeable of the effect of legislation on them as others might be. That is why we would want to go further than the consultation with children and have experts look at the impact of legislation on children and advise the Government accordingly. The Government could then make the kind of statement that we are proposing. In the mean time, however, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elton moved Amendment No. 79:
After Clause 5, insert the following new clause—
"MEANING OF "CHILD"
For the purposes of this Part "child" means—
and "children" is to be construed accordingly.
§ The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 100, 109, 184, 235, 246 and 247, which are probing amendments. I invite your Lordships to look not at the mechanisms but at the principles that they advocate.
§ The Bill's principal intentions, as set out in the Long Title, are the establishment of a Children's Commissioner and to make provisions about services to and for children. The question of who, exactly, children are is therefore of some importance.
The first place in which one would look for the definition is what in normal circumstances would be the only place: the definitions clause. Clause 49 states:
In this Act…'child' means a person under the age of eighteen (and 'children' is to be construed accordingly)".
§ "In this Act" is not subject to the provisions of any other subsection of the Bill, so one supposes that it applies across it.
§ However, the whole of Part 2 is again directed at children's services in England—services that one would suppose are provided for and on behalf of persons "under the age of eighteen". Clause 6 states that the Bill is directed to secure co-operation to improve their well-being. However, Clause 6(8) states that arrangements under this section may include arrangements relating not just to persons under the age of 18, but to persons in three different age brackets, ranging right up to 24.
§ I welcome that. It introduces a valuable principle into the Bill. Those other young people are included for a very good reason: although they are now in their majority, they are for various reasons still as vulnerable as in their minority and as other minors commonly are. By recognising that calendar age is no kind of reliable guide to the physical, mental or moral age of a person, Clause 6(8) introduces an invaluable principle to the Bill. The purpose of what are, I emphasise, probing amendments is to explore whether that principle has been sufficiently widely applied.
Accordingly, the last amendment in the group, Amendment No. 109, would delete the definition in Clause 49, and the remaining amendments would substitute for it supplemented versions of the wider definition implied by the wording of Clause 6(8). They would add a new person to the category of children, defined in Amendment No. 110 as,
persons under the age of 25 detained in a prison, secure training centre, contracted out prison, contracted out secure training centre. young offender institution, or local authority secure accommodation".
It is scarcely necessary to say why I feel it necessary to include the amendments, but perhaps I can quote from the report of an announced inspection of HM Young Offender Institution at Stoke Heath, between 2 and 6 October 2000, by the chief inspector. The opening lines state,
over the past five years I have published a number of reports of inspections of young offender institutions that have recorded wholly inappropriate or unsatisfactory treatment of and conditions for children and young persons held in Prison Service custody".
§ It says, "and young persons". Children are covered in the Bill, young persons are not. Those people are exceedingly vulnerable and a later amendment in my name will address them in particular.
§ My other amendments in this group follow the Clause 49 drafting in defining "child" in the singular and inferring the definition of "children" in the plural. The reverse process has been used in the Bill itself, in Clause 6, and I have adopted that process, too, although I have no idea why it was done. The Committee will also notice a slight difference in the wording of the first subsection of my amendment compared with Clause 6(8). That is necessary in this and all the amendments because, if I had simply imported Clause 6(8)(a) to (c) into the definition, it would have had the effect of excluding everyone under the age of 18. So this is just sweeping them up into that group.
§ Other amendments apply the same criteria, mutatis mutandis, to other parts of the Bill I hope that the Minister will explain to us the possibly quite simple reasons why the extended definition of "child" in Clause 6(8) was not used elsewhere in the Bill—that is important—and, secondly, the Government's response to the proper position that young people detained under criminal justice legislation, for instance, should have access to the Children's Commissioner even over the age of 18.
§ Those are the two principal objects of the amendments. Other matters may come up in discussion. I beg to move.
§ The Earl of Listowel
I speak to Amendments Nos. 79, 109, 235 and 246 which stand in my name and that of the noble Lord, Lord Elton. I shall be brief as he has eloquently put our concerns.
On Amendment No. 79, the Minister has already said that she will give consideration to the possibility of including care leavers over 18 in the remit of the Children's Commissioner. I am most grateful to her for saying that and I look forward to further discussion with her on that point. As Amendment No. 109 is consequent on that amendment I shall not go into its detail.
Where there is a possibility that local authorities may co-operate to improve the well-being of young people over 18 who have been in care and are still subject to services under children's legislation, Amendment No. 235 would place a duty, under Clause 2, on local authorities and other agencies to co-operate to improve well-being. Last night, the Minister attended a meeting where care leavers spoke to us about the difficulties they have found in housing provision, access to education and access to mental health services. So I hope that the Minister will consider this amendment helpful in improving outcomes in this area.
The Minister recently wrote to my noble friend Lord Hylton about the impact of the Children (Leaving Care) Act. Clearly, positive steps are being taken as a result of that Act. However, as she said in the letter, we have started,from a low base. 49 per cent of care leavers are now in education, training or employment on their 19th birthday, compared with 86 per cent of all 19 year-olds".887 So I look forward to her response to that particular question.
Amendment No. 246 would allow care leavers over 18 to have the benefit of the duty that the Bill places on local authorities to promote the educational attainment of young people in care. So it would create a continuing duty to promote the educational attainment of young people benefiting from local authority services because they have been in care. I hope the Minister will look sympathetically on that.
§ Baroness Ashton of Upholland
I am very grateful to the noble Lord, Lord Elton, for raising the issue of the different age definitions. It might please him to know that my noble friend Lady Andrews and I spent some time when we first looked at the Bill trying to understand why there are different age groups. Officials have given me a quite helpful table which I propose to send to the noble Lord and the noble Earl, Lord Listowel, and to place in the Library of the House so that others can have the benefit which I have had of a slightly more diagrammatic way of describing the position. I shall attempt to explain why, as the noble Lord, Lord Elton, rightly pointed out, we have differences. However, those who find that it is too technical or that I have not put it well may find the tabulated form very useful.
The noble Lord pointed to what I believe is the right direction. We have written the age groups to ensure that the Bill works in practice, to ensure that we link the ages to the services with which children are provided—in a sense, service provision is the defining fact—and, of course, to ensure that it fits in with other legislation. Therefore, if I may, I shall go through the amendments and say, in a little detail, precisely what we are seeking to do.
As the noble Lord, Lord Elton, said, Amendment No. 79 broadens the remit of the commissioner to young people up to the age of 20, as well as to care leavers and young people with learning disabilities and difficulties up to the age of 25. As I believe I said in earlier discussions, we believe that it is important to be clear that the age of majority—the age of adulthood—is 18. In the main, that is the "cut-off' point, if I may so describe it, for the work of children's services, with very big and notable exceptions to which I shall return.
So we think that, in the main, the commissioner's work should be for children and young people aged 18 and below. We celebrate the fact that young people who have reached the age of 18 have become adults. It is adult services that will be looking after them, with, as I say, some notable exceptions. I do not believe that those over 18 would expect the Children's Commissioner to be seeking their views, but I am sympathetic to the issue of the exceptions about which the noble Earl rightly reminded us. As I said under his Amendment No. 42, I am taking advice, and will be talking to him, about extending the commissioner's role to the groups identified.
As I said, the issue is difficult because it is about definitions and the services that these young people receive. We will therefore consider extending the 888 commissioner's remit in the two cases that the noble Earl identified. I hope that that will enable him to feel contented on that issue
Amendments Nos. 109 and 184 taken together would apply the wider definition across Part 2 of the Bill. Amendments Nos. 235 and 246 would extend this to Parts 3 and 5, Amendment No. 247 being consequential on that.
If I may, I should like to explain the purpose of Clause 6(8). As I think the noble Lord indicated, it is designed to ensure that no barriers would artificially cut across existing services. We would not want the partners in co-operation to be prevented from participating because some of their services are for young people over 18. The services covered include Connexions, which provides services for all young people up to their 20th birthday, and the Youth Support Services, which is the equivalent in Wales.
§ Lord Elton
The noble Baroness said something that has taken me by surprise and that I suppose should have been clear. The Bill currently does not extend the interest of the commissioner, or accessibility to the commissioner, to people over 18 in these institutions; it merely means that those institutions can remain in contact with the commissioner although some of the people within them are actually in contact with the commissioner. In other words, it is not an extension at all; it is merely a definition of the sub-18 group.
§ Baroness Ashton of Upholland
I was not referring to institutions but to services. When we discussed the commissioner, I said that his remit in the main covered children from the ages of nought to 18. However, there are certain groups, in particular care leavers and those with learning disabilities, where it might be appropriate, because of the nature of what has happened to those individuals, for the commissioner to have an ongoing interest in them. We agreed to consider that matter.
There are certain services available to children and young people—Connexions, care leavers and young people with learning difficulties being the obvious three—where the relevant age range is much broader. We did not want to create an artificial inappropriate cut-off point with regard to those services; hence the fact that the Bill has different age groups in different clauses. That applies within the overview that the remit of the commissioner and of children's services generally applies to the age group of minus nine months, in some cases, to 18. We seek to ensure that we do not cut across services rather than institutions. I shall come to the specific point that the noble Lord made about the criminal justice system in a moment.
As I said, we have linked the provisions in the Children Bill to the provision of services in terms of how they operate on the ground and to existing legislation. There is a very strong link in practice to the Children Act 1989, which defines children generally as under 18.
The other clauses in Part 2 do not rely on a definition of a child. The coverage of the information-sharing provision, the remit of the director of children's services 889 and lead member and the coverage of the new inspection arrangements are all defined by the functions and services to which they refer. As such they already in practice—I hope that this will please the noble Lord, Lord, Elton—cover the broader age range as the relevant definition is the service not the age of the child. I apologise as this is a rather technical matter. I assure the Committee that the grid will be very helpful.
Similar arguments apply to the miscellaneous provisions in Part 5. There are two exceptions: the private fostering clauses—which we shall debate later— where we already have an established definition of a privately fostered child under 16, or 18 if the young person has a disability. We believe that it is important not to disturb a recognised definition which, as I understand it, works well.
Clause 47 concerns the power to give financial assistance. The purpose of this clause is to broaden the department's ability to give financial assistance to those providing services to children, young people and their families—typically voluntary and community organizations—in a way that reflects its increased responsibilities. In keeping with this, the clause already allows for support to he given for the purposes of working with children and young people up to the age of 20.
I have given a rather detailed explanation of the different age ranges and the core principles relating to previous legislation or to the service provision that is on offer. That results in the Bill referring to different age groups. We have given a promise and a commitment to look again at the commissioner's remit in terms of the specific groups to whom the noble Earl referred. However, we consider that generally the age of 18—when a child becomes an adult—is the relevant age limit in this regard.
For those caught up in the criminal justice system the age of majority is 18. It is important to recognise that those in the criminal justice system who are aged 18 are considered adults in that system. Therefore, although I respect the view of the noble Lord, Lord Elton, and, indeed, that of the noble Earl, with whom I have already discussed the matter this morning, that more needs to be done in that regard it is not a matter for this Bill or this Minister. It is a question of whether more can be done in that regard in the criminal justice system. Through the Children Bill we take a strong interest in young people in institutions. However, there is a cut-off point at 18. The Committee may disagree with that but it is the reality. I should be happy to discuss that further with noble Lords on another occasion.
The measure describes the services that will be provided, supports previous legislation and ensures that services will be able to operate effectively. I hope that noble Lords will consider that I have answered their questions. I shall send noble Lords the grid to ensure that the matter is absolutely clear.
§ 12.15 p.m.
§ Baroness Sharp of Guildford
I have not previously spoken in this debate. We give our general support to the amendment. I am very grateful to the Minister for 890 her clarification. It has helped the Committee a great deal. However, we have a minor amendment, Amendment No. 109ZA, that we shall discuss later. Will the Minister ensure that a copy of the grid is sent to noble Lords on these Benches as well as to other noble Lords?
§ Lord Elton
I look forward with eager interest to the arrival of the grid, which will make a great deal clearer what I have sought to follow in the current debate. It seems to me that there is not the merit in Clause 6(8) that I accorded to it, but I may be corrected in that regard when I read the grid. Therefore, at this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Finlay of Llandaff moved Amendment No. 79A:
After Clause 5, insert the following new clause—