HL Deb 10 November 2004 vol 666 cc965-73 14 Clause 4, page 3, line 22, after "child", insert "in England"
Lord Filkin

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14. The Government tabled nine amendments in another place, which were subsequently passed, that clarify the commissioner's role in relation to Wales, Scotland and Northern Ireland. The amendments make the role clearly one of an "England commissioner plus" rather than a "UK commissioner minus", to use the patois that has developed on the Bill. Again, that was in response to the strong views expressed in this House. Doing so does not undermine the role of any existing commissioner, and work can be done with them, possibly under a memorandum of understanding, to minimise possible confusion in the other countries about to whom they should address themselves.

The key amendments are Amendments Nos. 22 to 24, which add new clauses describing the Children's Commissioner's functions in Wales, Scotland and Northern Ireland. The changes that we propose to the Bill maintain the current position—that the commissioners in Wales, Scotland and Northern Ireland are wholly responsible for matters in their respective countries that are devolved. That is why the Children's Commissioner's functions now refer to children in England, except in the new clauses introduced by government Amendments Nos. 22 to 24.

Let me make it quite clear that the Government acknowledge that there will be issues of relevance and interest to children which relate to both devolved and non-devolved matters. Similarly, children—especially children in trouble—may well not know or care how the devolution system works, and which matters are devolved or non-devolved or reserved or excepted. For that reason, in the third subsections of each of the proposed new clauses, we are requiring the Children's Commissioner to take account of the views and work done by his other UK colleagues.

The commissioners may choose between them to draw up a memorandum of understanding on how best to work together, but that is a matter for them. The Government have no desire to impose any system of working on them; that must be left to their own judgment. That is why we do not mention or prescribe any formal way of working together in the Bill. Similarly, we do not envisage that a child will have to say to itself, "My problem concerns matter X, so I must consult commissioner Y". If a child in Wales, Scotland or Northern Ireland needs the services of a commissioner, we envisage that they will turn in the first instance to the commissioner in their own country. It will then be for that commissioner to decide if and how his counterpart based in England should be involved, in accordance with the appropriate devolution settlement and any memorandum of understanding or other working agreement drawn up between them.

I know from earlier debates that some noble Lords would prefer the Children's Commissioner's remit not to extend beyond England. I respect their point of view, but the Government are obliged to act within in the parameters of the current devolution settlements as they are.

Not allowing the Children's Commissioner to have responsibility for non-devolved matters in Wales, Scotland and Northern Ireland would, in practice, mean that children in those countries were deprived of the influence of a commissioner who could bring to bear in Westminster matters decided in Westminster. That cannot be right. I hope that noble Lords will see the benefit of children outside England being able to access the benefit of the services of both commissioners when their problem requires that.

Given the importance of Amendments Nos. 22 and 24, I could go through them in detail, but perhaps I shall not, as that might weary the House. Perhaps I should move on.

We are fully committed to establishing sensible working relationships between the commissioners. The Government amendments are the result of lengthy consultation between my officials and those in the Wales, Scotland and Northern Ireland offices and the Scottish Parliament. My right honourable friend the Minister for Children, Young People and Families has also discussed and agreed this with colleagues in the Wales and Scotland Offices. I hope that noble Lords will accept these changes that have been passed in another place, which respect the devolution settlement, but see that it is essential that children are able to obtain redress, both for matters that are devolved and non-devolved without let or hindrance. We believe that this process achieves that. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 14.—(Lord Filkin.)

Lord Thomas of Gresford

My Lords, I do not respect the devolution settlement. I do not believe that devolution should be regarded as settled. It is an ongoing process, as we were promised by the Secretary of State for Wales, Mr Ron Davies, at the time that that legislation was passed.

Although I am speaking from these Benches, the people of Wales are speaking with one voice. Apart from those Welsh Members of Parliament who are on the Government payroll, all Welsh MPs, all Assembly Members, all local authorities, all non-governmental organisations concerned with children in Wales, and the Richard report say that the Government are taking the wrong tack in this matter.

The issue is whether there should be a division in responsibility in devolved or non-devolved matters when children's interests are concerned. The Government have proposed that there should be a Welsh commissioner with strong powers to deal with devolved matters and an English commissioner who should come into Wales with weaker powers in relation to non-devolved matters. Why are they weaker? The noble Lord, Lord Filkin, tried to persuade us on the last amendment that the English commissioner was the finest possible template of a commissioner that the world had ever seen. I do not believe that that is true. The reason is that in England the Government propose to spend for each child approximately an eighth of what they propose to spend on children in Wales, a tenth of what they spend in Scotland and a fifteenth of what they spend in Northern Ireland. So the reason the commissioner in England should be so weak is nothing to do with principle, it is to do with cash.

The noble Lord, Lord Laming, told us in the previous debate that, in his position as Chief Inspector, he received complaints from grandparents, parents and neighbours who were concerned with individual children. He was unable to do anything about that because he thought that he should be much more concerned with procedures and organisations than with individual children. He could not look—

Lord Laming

My Lords, I am sorry to interrupt the noble Lord. I wish to make it plain that I exercised discretion. I chose when it was appropriate and when it was not, which is exactly the Children's Commissioner's position.

Lord Thomas of Gresford

My Lords, I understood that the noble Lord had said something quite different. If I misunderstood him in his previous contribution, I apologise. I thought he was saying that he could not look at individual cases. The commissioner for Wales will be able to do that and the commissioner in England will not. The English commissioner will not be able to examine individual cases, such as the Victoria Climbiés of the future, if a neighbour complains about their position, but he will in Wales—that is the distinction—unless the issue in Wales arises from a non-devolved matter.

Perhaps we should look at this matter from a practical point of view. I am sorry that the noble Lord, Lord Hunt, is no longer here, but he said in the previous debate that the amendments proposed on this side of the House would lead to confusion regarding responsibility and accountability. That is precisely what the Government's policy will do in Wales.

Let us examine the situation of two children in a care home in Wales where one child has been sent there by a local authority and the other has been sent there through the youth justice system. The position of the local authority is a devolved matter. The youth justice system is a Home Office matter. If anything has been proved regarding devolution, it is that the Home Office has clung to power over matters that may happen in Wales. In this example, the Welsh commissioner would be concerned with one child in a care home and could investigate an individual case and the child who arrived through the youth justice system would be the responsibility of the English commissioner, who could not examine that case.

Another area that is non-devolved is that of benefits. One of the issues that the commissioner in Wales has taken up as a result of the concession given by Lord Williams of Mostyn, when we discussed the powers of the Children's Commissioner for Wales, was that that commissioner could examine non-devolved matters and report to the National Assembly. That is precisely what the Welsh commissioner has done in the case of child poverty. He has produced a report in which he has said that the level of child poverty is a national disgrace in Wales and in the United Kingdom. Only this week he went to the Social Justice and Regeneration Committee of the National Assembly and explained that there were problems of child poverty in Wales and asked it—in the roundabout manner that we have in Wales—to do something about it.

The manner in which poor children in Wales will best be helped is by an extension of the powers of the Welsh children's commissioner over all matters, whether they are devolved or non-devolved. It would be ridiculous for a child to have to go through the hoops that the noble Lord, Lord Filkin, has just described, to have its problems addressed. Apparently the child should go to the Welsh commissioner and we were effectively told by the Minister that that commissioner will then decide whether, and how, his counterpart based in England should become involved, in accordance with his own functions, with those of other children's commissioners and with any memorandum of understanding. The memoranda of understanding regarding various matters concerning Wales are arcane documents and, only last week, we were asking that they should be published as a whole.

There we have two examples: child poverty and the position of children in care homes, who have been sent there through the youth justice system, where there will be a division of accountability and responsibility—precisely the criticism that the noble Lord, Lord Hunt, made in relation to the last amendment.

Public opinion in Wales is all one way. It may be that the Government will have their way, but it will not carry Wales with it. The Commission for Equality and Human Rights has issued a statement regretting that the same approach to recognising the need for its activities to be conducted at an all-Wales level, regardless of devolution boundaries, has not been extended to the development of the children's commissioners. The principle, that is the devolution settlement, has been breached for the commission regarding equality and human rights, but it has to be maintained for the children's commissioner. Where is the logic in that? It is total nonsense.

I have already referred to the Richard commission. All the work that went into that came to the straightforward conclusion that it was essential and necessary for the Children's Commissioner for Wales to have powers over all matters.

Finally, I refer to the joint statement on the Children Bill by the commissioners for children and young people in Northern Ireland, Scotland and Wales. They have all said that they believe it is insidious to give the English commissioner a role in relation to promoting awareness of children's views and interests in Northern Ireland, Scotland and Wales, even concerning reserve matters. They say that it will be confusing for children, who do not think in constitutional terms in relation to the issues that affect their lives. Those are the three people within the United Kingdom with hands-on experience of the role and functions of the Children's Commissioner. They are all opposed to the path that the Government have set themselves.

As it is in the same group, perhaps I may refer briefly to Amendment No. 22B. Should my attempts to reverse the Government's position fail in relation to Amendment No. 22A, I shall urge your Lordships to support Amendment No. 22B. That amendment would make it absolutely clear that what I might call the "Mostyn amendment" to the Children's Commissioner for Wales Act is firmly stated on the face of this Bill—that is, that nothing in this Bill will take away from the Welsh commissioner powers which were bestowed in the settlement that we reached on the issue on the previous occasion. In due course, I shall move Amendment No. 22A and, if that fails, Amendment No. 22B.

7.30 p.m.

Lord Morgan

My Lords, we all want to get this Bill on to the statute book in good time and I am anxious to help it on its way. But I agree very much with the sentiments put forward by the noble Lord, Lord Thomas. If I recall correctly, I think that we spoke in somewhat similar terms in the debate on the Children's Commissioner for Wales three or so years ago.

This is another example of the Government enunciating a great principle of devolution but, in fact, undermining it. As we have heard, it has produced protests from the Children's Commissioner, who has used words such as "insidious". He is not in his place but perhaps my noble friend Lord Hunt would regard such attitudes as an example of Celtic rhetoric, although I thought that his own transmogrification as a level-headed man of reason was slightly less than compelling.

I think that the Welsh commissioner has a clearly understood range of powers. We worked very hard to achieve those three or so years ago with the assistance of our deeply lamented friend Lord Williams of Mostyn. The distinction was made between devolved and reserve powers. That is not very logical in itself as one area does link with another. I remember the observation being made in the previous debate that we talk of joined-up government but children have joined-up lives, and it is very difficult to segregate one from the other in terms of policy and to say that one is, as it were, reserved when it is not.

I think that what has emerged from the House of Commons—perhaps it will be improved by your Lordships—is objectionable on two fronts. First, it is objectionable in terms of the principle of devolution. I find the idea of an "English commissioner plus" an interesting aspect of imperialism. It seems to me extraordinary—others might even say "insulting"—that an English commissioner should act on behalf of the whole United Kingdom when there are perfectly good commissioners in Wales, Scotland and Northern Ireland. At the very least, it can produce confusion. Examples of that have been quoted.

I also think that, in practice, it is bizarre that such a proposal should come from a Government who gave us devolution. We are back to "For Wales, see England", which disappeared around the time of the First World War but has now been revived and resuscitated under the aegis of the Labour Government who gave us devolution. I find the proposal very odd. In any case, as the noble Lord, Lord Thomas, observed, the whole situation is in flux because the Richard commission is being debated and may well affect the balance between the different components of the United Kingdom, including its commissioners. Therefore, it seems to me illogical and almost senseless as a view of devolution.

I also consider it to be objectionable because it means intruding into Wales and, for that matter, Scotland and Northern Ireland with someone who has weaker powers. By all accounts, the Welsh commissioner has stronger powers, however one defines rights. His role is greater; he has greater powers of inquiry; and he can report on any matter as he sees fit, including matters affecting the Welsh Assembly. I do not consider it desirable that a weaker commission should intrude into the affairs of Wales, Scotland or Northern Ireland, particularly when the English commissioner does not have a rights-based philosophy and has diminished powers.

Therefore, I hope that the Government will think again. I believe that their proposal is inconsistent with devolution, and it is inconsistent with a proper and coherent strategy for the children of all the nations of these islands. It is rejected by pressure groups, by the commissioners and by the National Assembly for Wales. This is broadly an admirable Bill. We all want to help it on its way. But it seems to me that this is a needless flaw, and I beg my noble friends to think again.

Baroness Finlay of Llandaff

My Lords, I add my voice from Wales to the request to think again. The Assembly debated this matter fully on 4 May and voted unanimously for the powers of the Welsh commissioner not to be eroded. There is a concern in Wales that the English commissioner is being viewed as having a role "over and above" that will interfere with the role of the Welsh commissioner and undermine confidence in that role.

The devolution settlement certainly was not fixed in time. We have seen things being moved across to Wales when they had not previously been there, as happened, for example, with the Fire Services Act. Therefore, if the powers are not left principally with the commissioner in Wales, that will be counter to the whole principle of devolution, of managing services locally and of ensuring that the local services meet the needs of the local population.

Another concern is that we may not always have a government of the same colour in Westminster and in Wales. While there may be a memorandum of agreement at this stage and therefore, because we have government of the same colour in both areas, there may be agreement over the way forward, the political pressures may change enormously. Sadly, the people who will suffer will be the weakest and the most vulnerable. They will not be the politicians; they will be the very children that the Bill is designed to help.

Lord Livsey of Talgarth

My Lords, I went through the Children's Commissioner for Wales Bill when it was proceeding through the House of Commons. It is clear to me that the Children's Commissioner for England has far fewer powers than the commissioner for Wales. With consummate skill, my noble friend Lord Thomas of Gresford completely demolished the case made by the Government in this respect.

Parts of the Bill, as amended by the Government and the House of Commons, go against the spirit and letter of devolution and, as the noble Lord, Lord Morgan, said, intrude into the powers of the Children's Commissioner for Wales on matters which are the concern of children in Wales. Surely it should not be the purpose of this Bill to take away powers from the Children's Commissioner for Wales, which effectively it does.

I believe that, so far as concerns children in Wales, the Bill as it now stands will result in an attempt at protection by remote control from England. That wrong must be put right. Indeed, I believe that it is at the heart of the Richard commission proposals for sorting out these problems and for devolving primary powers to Wales because this kind of debate will be redundant as the whole thing then will be sorted out logically.

Similar amendments to these were tabled in the House of Commons and defeated. Indeed, these issues directly affect the devolved administrations. The Welsh Select Committee in the other place expressed grave concern about these matters. I think it is significant that all members of the Welsh Select Committee supported the amendments which were defeated in the House of Commons because they were not satisfied with the settlement in the Bill. Sadly, 17 members of the Government's party supported amendments which weaken the powers of the Children's Commissioner for Wales, and I think that the House will judge on that. But the people with real knowledge supported the amendments which put these matters right.

Lord Rogan

My Lords, in speaking to Amendment No. 14, I should like to forge a Celtic alliance with my Welsh colleagues. I do so in awareness of the grave concerns harboured by the recently appointed Northern Ireland Commissioner for Children and Young People, Mr Nigel Williams.

It appears odd, to say the least, that this Bill will create a different kind of commissioner for children than those which already exist in Northern Ireland, Scotland and Wales. Not only is that the case; the Bill will allow the new English commissioner—while admittedly having to take account of the Northern Ireland commissioner's work—to institute an inquiry without any prior consultation with the Northern Ireland commissioner.

Would it not be better for the Northern Ireland Commissioner for Children and Young People to have the lead responsibility for all matters affecting children in Northern Ireland and to work with the English commissioner on the specific matters that are the responsibility of the Westminster Parliament? If this legislation is accepted in its current form, the children's commissioner in Northern Ireland, and indeed the commissioners for Wales and Scotland, could be entirely sidelined and their roles completely undermined. Can the Minister give the House any assurance that that will not happen?

Lord Filkin

My Lords, I shall not speak at great length. I am not certain whether this is not one of those issues where, whatever one says, one will not change people's minds. The noble Lord, Lord Thomas of Gresford, was commendably clear and honest in his opening remarks when he said that he did not respect the devolution settlement and that there should be an ongoing debate. That is fine. He is utterly entitled to his point of view, and I understand and respect that. However, this is not the place at which to seek to forge change to the devolution settlement. If that were to be done, it would have to be done elsewhere and not on the back of an issue such as this.

The noble Lord, Lord Morgan, said that the English commissioner would be weak. There is nothing further that I can usefully say on that. I have not changed my stance in the past 15 minutes; nor, I suspect, has he.

The noble Baroness, Lady Finlay, was concerned about eroding the powers of the Welsh commissioner, as was the noble Lord, Lord Livsey. The noble Lord, Lord Rogan, also expressed those concerns. We are not changing the powers of the Welsh commissioner in any respect.

The noble Lord, Lord Rogan, said that it would not be possible for the Welsh commissioner to have lead responsibilities. The noble Lord, Lord Thomas of Gresford, gave the good example of two children in the same children's home, both affected by the same issues and concerns, which, for the sake of argument, bring us within the ambit of Clause 4 and raise issues of public policy. In that situation, we would expect the commissioners to strike a memorandum of understanding and agree that one of them, not both, would investigate the issue. He would determine his conclusions and share those with his colleague. Those conclusions would then find their way onwards, if it was a Welsh governance issue, to the Assembly or other parts of Welsh governance, and if it was a non-devolved, UK-wide issue, it would clearly find its way into UK governance. In other words, while the final repository of the actions that the commissioner found as a consequence of his investigations might—how shall I put it—challenge either the Home Secretary or the Assembly, that would be done only as the result of a process which, as far as the children were concerned, was joined up and by which they were not inconvenienced.

Taking the point made by the noble Baroness, Lady Finlay, I do not believe that it is conceivable that there might be an issue even though the Welsh Assembly and the Government of the day were of different political complexions. One would expect impartial public officials of high probity and a nonparty political nature to serve as the commissioners. I therefore do not believe that they would in any way be blown or buffeted by different political perspectives.

I shall say no more. I do not think that I will necessarily persuade the noble Lord, Lord Thomas, on this issue, much as it sorrows me to say so. I think that the provision is workable and practical. Now is not the time to change the devolution settlement.

On Question, Motion agreed to.