Clause 4 - Inquiries initiated by Commissioner

Children Bill [Lords] – in a Public Bill Committee am 10:15 am ar 14 Hydref 2004.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss the following: Government amendment No. 178.

Amendment No. 12, in

clause 4, page 3, line 41, leave out 'and Wales'.

Government amendment No. 13.

Government amendment No. 17.

Government amendment No. 182.

Amendment No. 18, in

clause 5, page 4, line 34, leave out 'and Wales'.

Amendment No. 19, in

clause 5, page 4, line 36, leave out subsections (8) and (9).

Amendment No. 195, in

clause 6, page 5, line 4, leave out paragraphs (a) to (c) and insert—

'(a) any matter regarding children in Wales;

(b) any matter relating to children in Scotland; or

(c) any matter relating to children in Northern Ireland.'.

Amendment No. 198, in

clause 6, page 5, line 4, leave out paragraph (a) and insert—

'(a) any matter relating to children in Wales'.

Amendment No. 21, in

clause 6, page 5, line 11, at end insert—

'( ) The Secretary of State, in regulations, must specify procedures for applying this legislation to children normally resident in England engaged in education, treatment and other activities in another part of the United Kingdom, and specifying which body is to be the responsible authority.'.

Amendment No. 196, in

clause 6, page 5, line 14, at end insert—

'(3) It shall be the sole responsibility of the Children's Commissioner for Wales to—

(a) hold an inquiry under sections 4 and 5 as regards to children in Wales; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Wales.

(4) It shall be the sole responsibility of the Commissioner for Children and Young People in Scotland to—

(a) hold an inquiry under sections 4 and 5 as regards children in Scotland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Scotland.

(5) It shall be the sole responsibility of the Commissioner for Children and Young People in Northern Ireland to—

(a) hold an inquiry under sections 4 and 5 as regards children in Northern Ireland; and

(b) consider, and make appropriate representations about, any matter affecting children ordinarily resident in Wales.'.

Clause 6 stand part.

Government new clause 27—Functions of Commissioner in Wales.

Government new clause 28—Functions of Commissioner in Scotland.

Government new clause 29—Functions of Commissioner in Northern Ireland.

New clause 6—Relationship between Commissioners—

'( ) The Children's Commissioner shall consult and work together with—

(a) the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland on matters concerning children's rights and interests throughout the United Kingdom; and

(b) the appropriate Commissioner or Commissioners on matters concerning children's rights and interests which appear to affect children in Wales, Scotland or Northern Ireland in addition to England, unless the matter relates principally to events or circumstances in England.'.

New clause 7—Relationship between Commissioners (No. 2)—

'The Children's Commissioner shall consult and work together with—

(a) the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland on matters concerning children's rights and interests throughout the United Kingdom; and

(b) the appropriate Commissioner or Commissioners on matters concerning children's rights and interests which appear to affect children in Wales, Scotland or Northern Ireland in addition to England.'.

New clause 18—Extension of the powers of the Children's Commissioner for Wales—

'(1) Section 75A of the Care Standards Act 2000 (additional power of consideration and representation) is amended as follows.

Leave out subsections (1) and (2) and insert—

''( ) The Commissioner may consider, and make representations about, any matter affecting the rights and welfare of children in Wales to—

(a) the Assembly, and

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

New clause 33—Requirement to review the working of the effect of the creation of a UK children's commissioner on the function of the existing commissioners in the nations of the UK—

'(1) Each of the Children's Commissioners in the UK shall monitor the effect of having more than one Children's Commissioner operating in their nation simultaneously.

(2) Each of the Children's Commissioners shall make reports to the Secretary of State, the National Assembly, Scottish Parliament and the Northern Ireland Assembly on the findings of the provisions specified in section 1(a) and (b) above and in accordance with the following provisions of this section.

(3) The report shall, in particular, consider the impact of having more than one Children's Commissioner representing children in Wales, Scotland and Northern Ireland, including—

(a) the overall level of understanding of children in the UK nations as to the division of responsibility between the different Commissioners representing them;

(b) the effectiveness and role of the Children's Commissioner for Wales, the Commissioner for Children and Young People in Scotland and the Commissioner for Children and Young People in Northern Ireland; and

(c) any evidence of duplication in work undertaken by the commissioners.

(4) The reports under this section shall be made as soon as practicable after the second anniversary of the coming into force of Part 1 of this Act.

(5) In producing a report under this section the Children's Commissioners shall consult—

(a) children;

(b) representatives of organisations concerned with children's rights and interests; and

(c) the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly.

(6) A Report under this section—

(a) shall include the views of the Children's Commissioner on the adequacy and effectiveness of this part; and

(b) may contain recommendations to amend this Act.

(7) The Secretary of State shall lay a copy of every report sent to him under this section before each House of Parliament.'.

New clause 35—Review of exercise of functions of Assembly and other persons—

'( ) Section 72B of the Care Standards Act 2000 (c.14) (review of exercise of functions of Assembly and other persons) is amended as follows.

( ) In subsection (3), omit paragraphs (a) and (c)

( ) Omit subsections (4) and (6).'.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I am pleased to speak for the first time in this Standing Committee, Mr. Benton, under your chairmanship, and I look forward to the guidance and assistance that you will give us as we go through these amendments and new clauses. If you will permit, I shall speak to the Government amendments first, and shall leave the other amendments until later so that other colleagues will have something to say.

Taken together, the Government amendments and new clauses have the effect of clearly presenting the scope of the children's commissioners functions in Wales, Scotland and Northern Ireland, and logically assembling in one place various provisions concerning those countries that are, at present, situated in different clauses of part 1. The effect of the amendments is clearly to make this role one of an English commissioner-plus, who does not undermine the existing role of the other commissioners and can work with them. For example, a memorandum of understanding could be used to minimise possible confusion for children in the other countries about whom they should address themselves to.

The key amendments are Government new clauses 27, 28 and 29, which create new clauses describing the children's commissioner's functions in Wales, Scotland and Northern Ireland. The remainder of the amendments are consequential and remove references to the other countries in other clauses of part 1. Amendment No. 11 restricts the scope of clause 4 to England and amendments Nos. 187 and 13 are consequential to that. Amendments Nos. 17 and 182 perform the same functions for clause 5. It was not necessary to table a similar amendment to clause 2 because its scope is already restricted to England, following its amendment in another place.

Amendment No. 51 removes the existing clause 6, which will become unnecessary as its provisions will be included in the proposed new clauses. The changes that we propose maintain the current position: the commissioners in Wales, Scotland and Northern Ireland are wholly responsible for matters that are devolved in their respective countries. They are not being downgraded to regional or deputy commissioners reporting to an overseeing United Kingdom Children's Commissioner. That was never the Government's intention. However, we acknowledge that there was some disquiet in another place, arising from an earlier draft of the Bill, which described the Children's Commissioner as having the function of promoting the views and interest of children in the United Kingdom.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd

Is my hon. Friend aware of the disquiet expressed yesterday by the Children's Commissioners in their meeting in Cardiff? They said

that they believed that it was insidious to give the English commissioner a role in promoting awareness of children's views and interests in Northern Ireland, Scotland and Wales, even concerning reserved matters. They said that that would be confusing for children who do not think about the issues that affect their lives in constitutional terms. They are also concerned about the potential confusion and difficulty in giving an English commissioner a role in holding inquiries on individual cases in Northern Ireland, Scotland and Wales, and that such an arrangement will cause confusion.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I am aware of that statement and of the concerns expressed by the Children's Commissioners. I say to my hon. Friend, and to a wider audience—possibly including the Children's Commissioners—that the latest annual report from the Children's Commissioner for Wales asks:

''What do the commissioner and his team do?''

He answers:

''The commissioner can consider and make representations to the National Assembly about any matter affecting the rights and welfare of children in Wales. This means that he can deal with issues outside the responsibility of the National Assembly such as youth justice, family courts, and social security benefits.''

My hon. Friend is a hard-working and distinguished member of the Welsh Affairs Committee, which, in its report on the powers of the Children's Commissioner, said:

''We reiterate our belief that the Children's Commissioner for Wales has made a positive impact on the lives of children in Wales. We have been particularly impressed by the way Peter Clarke, the Children's Commissioner, has developed working relationships with organisations and agencies that cover areas outside of his remit to ensure that children in Wales receive the best possible support available to them.''

I think that, in part, that reassures my hon. Friend on the point that I am trying to make: that in practice the commissioners are already ensuring that the rights and interests of children are protected across all areas of public service delivery and that they have a role to play.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd 10:30, 14 Hydref 2004

I know that my hon. Friend is working for the interests of children in Wales. However, does he not agree that the fact that the Children's Commissioner for Wales already has the power to make representation on any non-devolved matters relating to children in Wales is a recipe for disaster if the English Children's Commissioner can make representations and carry out inquiries on those same children? Is there not the potential for confusion?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I do not accept that there is potential for confusion. As I will also say later, we expect close collaboration among the commissioners throughout the United Kingdom, possibly through a working memorandum of understanding through which they will seek to overcome problems.

I have been in this position several times—taking through the House legislation that is somewhat different in Wales than in England. If I am allowed to

digress for a moment, I remember that there were concerns about the Health (Wales) Bill and the work of the Commission for Healthcare Audit and Inspection in England and the Healthcare Inspection Unit for Wales. We agreed that there would be a proper collaborative working arrangement to avoid duplication and confusion, and it is working in practice. I hope that that reassures my hon. Friend.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

The Minister quotes a conclusion from the Welsh Affairs Committee, which says that the commissioner is developing good relationships with organisations outside his remit. Surely this Bill gives us the opportunity to firm up those good relationships and bring them within his remit.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I take the hon. Gentleman's point, but the arrangements are already working in practice. The Children's Commissioner for Wales can make representations to the Assembly on matters that are reserved. He can make, and has made, informal representations to Ministers in Whitehall. Indeed, on 11 May, following a meeting with the Children's Commissioner, I wrote to him to repeat that in the event of his having any concerns regarding a non-devolved policy area, I would be happy to raise those matters with the relevant UK Minister. The commissioner has done that, and I have raised those matters. In practice, there is a good working harmony and relationship, and there is no impediment to the work of the children's commissioners in Wales, Scotland or Northern Ireland in that regard.

I hope now to make progress. We have listened and, as a result, we have produced the amendments, which make it clear that the Children's Commissioner's functions apply to children in England, and new clauses 27 to 29, which confer functions on him in respect of children in other countries, as has just been mentioned. I must make it clear that the Government acknowledge that issues of relevance and interest to children will relate to both devolved and non-devolved matters. Similarly, children, especially children in trouble, may not know and will certainly not care how the devolution system works and whether or not matters are devolved.

For that reason, in subsection (3) of each new clause, we require the Children's Commissioner to take account of the views and work done by his other UK colleagues. That practical step will help to overcome the difficulties, which responds to the point made earlier by my hon. Friend the Member for Cardiff, North. We envisage that the commissioners will draw up a memorandum of understanding on how best to work together, but that is a matter for them. We have no wish to impede or constrain the commissioners' independence in that respect. Sense is not always that common, but I believe that common sense will dictate that there will be a close working relationship between them. The Government have no desire to impose any system of working on the commissioners. 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 themselves, ''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 it will turn in the first instance to the commissioner in their country. That is our aspiration, as I am sure it is for everybody here and for the commissioners themselves. It will then be for that respective commissioner to decide whether and how their counterpart based in England should become involved in accordance with their own functions, those of other children's commissioners and with any memorandum of understanding that they have drawn up.

Some hon. Members will prefer the remit of the Children's Commissioner not to extend beyond England. I respect that point of view, but I do not agree with it. The Government are obliged to act within the parameters of the current devolution settlement. It is not our job, in taking this Bill through the Commons, to rewrite the devolution settlement; that is a matter for another time and place. Not allowing the Children's Commissioner to have responsibility for non-devolved matters in Wales, Scotland and Northern Ireland would mean that children in those countries would be deprived of the influence that the commissioner will have here at Westminster on matters that are the responsibility of, and are decided by, Parliament.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

Surely the Minister contradicts himself. He says that, in practice, the commissioner in Wales is already doing that and that he has facilitated the commissioner making representations to the appropriate Minister. Why the duplication?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

No, there is no contradiction; perhaps I am not making myself abundantly clear. What I am saying is that there should be no restriction on the English-plus commissioner, who will have responsibility to consider any matters in reserved areas. We should not restrict him from doing that if it is the appropriate way to ensure that if an issue arises and he wishes to take it up, the case of a child in Wales, Scotland or Northern Ireland will be investigated by someone who will report directly to a Minister answerable to this Parliament. I hope that hon. Members will see the benefit of children outside England being able to use the services of both commissioners.

I am conscious of time, but I would like to refer briefly to key elements of Government new clauses 27 to 29. New clause 27(1) makes it clear that the Children's Commissioner's functions in Wales will be strictly limited to matters outwith the control of the National Assembly. Subsection (2) refers back to relevant parts of clause 2 to define those functions. I have already described at length the purpose of subsection (3), which will require the Children's Commissioner to take account of the views of, and any work done by, his counterpart in Wales. Subsection (4) gives the commissioner an inquiry power in Wales similar to that for England as set out in clause 4.

Subsection (6) gives the Secretary of State the power to direct the commissioner to undertake an inquiry in Wales.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd

Does my hon. Friend not think that the power of the Secretary of State to direct the Children's Commissioner in England to undertake an inquiry in Wales impedes the commissioner's independence?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

No, I do not. It is important to recognise, as my right hon. Friend the Minister for Children, Young People and Families has made clear several times in Committee, that the functions of the Children's Commissioner in England will be different to the operation of the Children's Commissioner for Wales. In Wales, the commissioner examines key individual cases and issues, whereas in England the view of the commissioner will be much broader and strategic. There will be no conflict at all.

The provisions for Scotland and Northern Ireland are, in effect, identical to those for Wales. Subsections (1) to (5) in new clause 28 for Scotland and new clause 29 for Northern Ireland have the same effect as subsections (1) to (5) in new clause 27 for Wales. Subsection (6) is the text of existing subsections (8) or (9), as appropriate, of clause 4, which has been transferred to the new clauses. Subsection (7) gives the Secretary of State the power to direct the commissioner to undertake an inquiry in Scotland or Northern Ireland respectively. That corresponds to a similar provision for England in clause 5. Subsection (8) is a technical cross-reference. Subsection (9) is the existing text of subsections (8) or (9), as appropriate, of clause 5, which has been transferred to the new clauses. Subsection (10) defines reserved or exceptional matters.

We are fully committed to establishing good working relationships between the commissioners throughout the United Kingdom. The Government's amendments are the result of lengthy discussions, and I think that they will do that. It is therefore appropriate for me to pause at this stage to allow colleagues with other amendments to make their comments, and I will then respond.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

This is a highly complicated series of amendments and new clauses, grouped together for the whole clause. Perhaps we should talk about the generality of the amendments.

The Under-Secretary started by saying that the Government intended to establish an English commissioner who does not undermine any other commissioner. I fear that there is great concern that the English commissioner will still do that, even if the amendments are accepted. The Under-Secretary referred to some disquiet; that is putting it very modestly, certainly in view of what the hon. Member for Cardiff, North said about comments from the other commissioners only yesterday. The Under-Secretary also talked about the hopes and inspirations for the English commissioner to be for English children. However, that is still not on the face of the Bill, and we need greater clarification.

We have started with a treble hijack, as no fewer than three of the amendments laid by myself and other hon. Members all of a sudden appear to have the name of the Minister for Children, Young People and Families at the top. They are technical amendments, which seek to make the point that we, and other hon. Members, have been trying to make—I am sure the hon. Gentleman from the Welsh nationalists would make it at greater length were he here today, which is why we might not have as lengthy a debate on the clause as we might have had—which is that the English commissioner should be concerned with children from England. His actions should be instigated by concerns from children in England.

Amendments Nos. 11, 13 and 17 are all technical amendments to define England, rather than the other parts of the United Kingdom, on the face of the Bill. Amendment No. 12 also does that but, for some reason, the Government have not sought to hijack it.

This is a complete dog's dinner. It still appears to be contradictory to the spirit of devolution. We have disagreements; we have differences in the way in which things are run in different parts of the United Kingdom. My hon. Friend the Member for Isle of Wight has made that point. It is one of the strengths of devolution, supposedly. We respect the powers of different parts of the United Kingdom to have those disagreements and do things in different ways.

There was a lengthy and well informed debate on the subject in Committee in the House of Lords. Pertinent points were made by Baroness Finlay of Llandaff, a constituent of the hon. Member for Cardiff, North—whether a Member of the House of Lords technically constitutes a constituent, I am not sure, but I am sure that the hon. Lady would not turn her away from one of her surgeries if she appeared seeking advice. During the Lords Committee in May, Baroness Finlay referred to a debate in the plenary sitting of the Assembly, where a motion was passed unanimously by 50 votes to nil stating that the Assembly welcomed the additional powers that the Children Bill gives to the Assembly, rejected the proposal that the English Children's Commissioner should have statutory functions over non-devolved matters in Wales, and called for the powers of the Children's Commissioner for Wales to be extended to non-devolved matters.

Baroness Finlay also referred to the comments and actions of the late Lord Williams of Mostyn, and his amendments to the Children's Commissioner for Wales Bill in 2001. He ensured that the Children's Commissioner for Wales can make representations to the Assembly on any matter, devolved or non-devolved, that affects the welfare and rights of children. If the commissioner deems it appropriate, he can also make informal representations to the UK Government on those matters. Although the Wales Office has given reassurances that that can continue, it seems to me to be a courtesy to allow the commissioner freedom of expression.

My noble Friend Earl Howe also reinforced the existing rights of the Welsh commissioner. The commissioner already 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 he wishes. However, even with these changes, it is envisaged that the Children's Commissioner of the United Kingdom will suddenly muscle in and assume responsibility for those issues relating to children that are non-devolved. Welsh children could find they have not one champion but two, working side by side.

If the Government get their way, the UK Children's Commissioner will not take up the cudgels for Welsh children in the same way as the Welsh commissioner currently does, because he will be concerned only with promoting awareness of the views and interests of those children, not with safeguarding and promoting their rights and interests. This difference in powers and functions is unsatisfactory enough for children in England and doubly unsatisfactory for children in Wales, Scotland and Northern Ireland, because in practice it represents the dilution of a protection that they currently enjoy through their respective commissioners.

The Children's Rights Alliance has reinforced those points. It says that new clauses 27 to 29

''show breathtaking insensitivity to the needs and rights of those countries' children''— the children of Wales, Northern Ireland and Scotland. It continues:

''The idea of a Commissioner from England going or being sent into the other countries to carry out a formal inquiry seems quite absurd. Giving England's Commissioner a function of promoting the views and interests of children across the UK shows an astonishing ignorance of the roles of the existing Commissioners. They can already promote awareness of the views and interests of children on any matter, devolved or otherwise. What are lacking in Wales, Scotland and Northern Ireland are formal investigatory and reporting powers over non-devolved matters.''

The question that arises is, where does the buck stop? That is what Lord Laming identified. Two main points that he made very forcefully in the Climbie report were the lack of joined-up thinking and practice between the professionals and the lack of accountability to a person with whom the responsibility for a failure in the system should lie. I fear we will repeat those problems where we have a confused relationship between the different commissioners. Some serious inequalities have been thrown up. I appreciate that the Under-Secretary has taken the point on board, but the Government proposals do not address the problem properly, and in some ways they exacerbate it. The system is confusing, it is not joined up and it threatens to produce two supposed children's champions. I still have a good deal of difficulty with the Bill, even with the proposed changes, although the amendments that we had hijacked have sought to define England more closely as opposed to Wales.

Amendment No.21 is on a slightly different subject—cross-border children. We all appreciate that there was a problem here. I do not appreciate how it

has been dealt with in the Bill. I gather that the definition of where a child is resident is where that child normally lives, but there will be many cases where children move around. We need to specify procedures for dealing with cross-border children. Later in the Bill we will deal with who is accountable for children who move between local authority areas within England, which is a big enough problem, but we have not addressed the problem of those who move from one United Kingdom country to another.

There are many examples: an English child who is at a boarding school in Cardiff or Edinburgh; a child who is in care across the border; a child who has contact orders with his parents who have split up and now live in different parts of the United Kingdom; a child who has a long-term medical condition and requires long-term medical residential care, particularly in mental health hospitals, which may be in any part of the United Kingdom; a child who is at a special needs school. In all those examples the Bill establishes a duty of care for school professionals, health professionals and social workers in order to ensure that the child is being looked after in a joined-up way. However, clause 4 is unclear about who should take the lead responsibility in the different countries. For instance, what happens if a child spends half the year at a school in Scotland and the other half at home with the parents, or half the year in a residential care facility in one country and the other half elsewhere? I am sure that it can be sorted out, but it is not clear in the Bill. Ultimately, therefore, no one is identified who can say, ''The buck stops with me.''

Amendment No. 21 is constructive, but we have said that we will leave it to the Under-Secretary to define how things can be done. It specifies that, in regulations, the Government must come up with procedures for dealing with children who are normally resident in England but who, as I have described, are

''engaged in education, treatment and other activities in another part of the United Kingdom, and specifying which body is to be the responsible authority.''

I would be grateful for a more detailed response on that; it is a practical concern.

We will probably argue until the cows come home over the amendments dealing with Wales. The provisions still appear to be a dog's dinner. They need to be greatly simplified.

We would have benefited from a more detailed explanatory note on the changes that the Government now propose, which were tabled only a week ago. I certainly would like greater clarification of what the Under-Secretary has already said, and I would appreciate a more comprehensive response to amendment No. 21.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd 10:45, 14 Hydref 2004

I am sorry that we have had to debate the merits of a Welsh Children's Commissioner, and how the position relates to what is proposed for the English Children's Commissioner. It is a good Bill, and I am pleased that there will now be an commissioner for England; I am sorry that we have not been able to straighten out our differences, but it does not seem beyond the bounds of possibility that it could still be worked out satisfactorily for all concerned.

Government amendment No. 11 clarifies the situation in a positive way, and other Government amendments in the group are positive in helping to clarify the position in England. However, the clause is still confusing in relation to Wales, which is not satisfactory. I shall concentrate on new clauses 7 and 18, and then speak to Government new clause 27.

New clause 18 would extend the powers of the Children's Commissioner in Wales to non-devolved matters; it would enable him to consider and make representations about any matter to the National Assembly for Wales or to the responsible Department or Minister at Westminster. That seems the most clear-cut, sensible and practical way of dividing responsibilities between the commissioners, and it would guarantee no confusion to the users of the service. Children in Wales would know that one person was able to deal with all matters.

My hon. Friend the Under-Secretary said in his opening remarks that he hoped that there would be only one point of contact, but I believe that the Welsh commissioner needs to be able to lobby on behalf of children in Wales on all matters. The general view of professionals, lobby groups and all involved in child care is that what the Government propose is unsatisfactory. The Welsh Affairs Committee recommended that the Welsh commissioner should cover all matters that impact on children and young people in Wales, regardless of whether they are devolved. In his evidence to that Committee, Peter Clarke clearly stated that the commissioner should act in an holistic way, and that he should not be tied by artificial boundaries related to constitutional issues.

New clause 18 would make the most constructive use of the fact that, since devolution, services operate differently in Wales than in England. One cannot say that a service such as youth justice is not devolved. Youth justice in Wales operates in a context in which housing, education and health are all delivered by the National Assembly—and they are delivered differently than in England. It is the same with the probation service; it operates in a different context. The Welsh commissioner is an expert on the Welsh policy context; he is fully briefed. Only someone who is on the spot and operating in Wales can understand that context. An English commissioner will have to develop a range of areas of expertise, and it is hard to imagine how they will become expert with what might be only occasional forays into Wales. The Welsh commissioner has an office in Wales and a Welsh language scheme in place and is fully briefed on what is happening in Wales. I do not see any way in which an English commissioner, operating in an English context, will be able to come into Wales and consider non-devolved matters in a devolved context in the way that a Welsh commissioner could.

That is why the new clause is the most sensible way forward. The Welsh commissioner can make representations and look into any matter affecting a child in Wales, and the practical step forward is to allow him to make representations to Ministers at Westminster. The new clause is the ideal way forward. It would not change the devolution settlement but

merely provide a practical arrangement to make things simpler and more straightforward for children and safer. The confusion that has often caused tragedies in this country has been mentioned, and having two children's commissioners operating will be very worrying. The current children's commissioners made a statement yesterday in Cardiff saying how insidious they felt it would be for a commissioner from another country to come in and try to raise awareness in Wales. Such a situation is non-workable.

I ask the Under-Secretary to think again about this issue. Even if it is not possible to persuade the Government to devolve additional powers to the Welsh commissioner, will he at least consider enabling the English commissioner to delegate non-devolved matters in Wales to the Welsh commissioner? That would make things clear and reduce confusion. Will he also assure us that it may be possible to consider the issue again before Report to see whether there is a way to reach agreement between all the parties involved and produce a proposal that gives children in Wales the maximum chance of having the benefit of the Children's Commissioner who is already there?

New clause 7 concerns the relationship between the commissioners. It would place a duty on the new commissioner to

''consult and work together with'' the commissioners for Wales, Scotland and Northern Ireland. The debate that there has been on the relationship between the new commissioner and the others has probably highlighted more than any other debate the nature of post-devolution Britain. The key point of the new clause is to ensure that whatever model each commissioner is based on—they do not have to be based on the same model, although all commissioners should adhere to certain principles—they work together and consult one another for the good of the children involved.

That brings us back to the basic point. It is not for children to navigate their way between different pieces of legislation or different commissioners. It is essential that the commissioners work together as a single entity and that it is remembered that many of the children who will be dealt with are among the most vulnerable in our society and that tragedies have occurred when there have not been clear lines of responsibility.

I understand what my hon. Friend says about not wanting to impose working patterns on the commissioners and that that may be done via a memorandum of understanding. However, in written evidence to the Welsh Affairs Committee, Peter Clarke stated:

''While I welcome the opportunity of working together with the Children's Commissioner for England, I am not prepared to enter into any memorandum of understanding or other agreement which might compromise my independence prior to the appointment of the first postholder.''

That is an important point and I believe that it is right. It is important that guidelines be laid down about what a memorandum of understanding actually means. What does my hon. Friend envisage as the headings in

any such memorandum? What topics would be covered and what work has already been done on such a memorandum?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 11:00, 14 Hydref 2004

I am interested that the hon. Lady is asking the Under-Secretary those questions. Is she suggesting that he can answer in respect only of the commissioner who is the subject of the Bill, or also in respect of the other three commissioners?

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd

I am asking whether the Government have given any thought to what form a memorandum would take. Although the individual commissioners should decide between themselves how they operate, the Government must give some thought to the memorandum. Otherwise, the Committee and the legislation would leave the matter wide open.

The purpose of tabling new clause 7 was to try to determine the Government's thinking on the memorandum of understanding between the commissioners. My preferred option would be that the non-devolved powers should become the responsibility of the Children's Commissioner for Wales.

I am extremely concerned about Government new clause 27. The way in which subsection (1) is worded undermines the existing commissioners—they feel strongly that it is not the way forward.

The Children's Commissioner for Wales has a general power to make representations on any matter affecting any child ordinarily resident in Wales. He already has a relationship with the police and visits prisons. When one commissioner is already examining those areas, it would be confusing to put in someone else with responsibility for those areas in Wales.

Young people in Wales already move in and out of devolved areas and non-devolved areas. Peter Clarke gives an example in which he could go to the secure unit at Hillside and would find that he had responsibility for one child who had gone into the unit through the care system but not for the child sitting next to him who had gone into the unit through the youth justice system. Two people in the same institution could be the responsibility of different commissioners. A situation could also arise in which Peter Clarke was dealing with a person in the community through the child welfare system, but if that person went into a secure unit, they would become the responsibility of another commissioner. That would be crazy. We should be able to work out something more satisfactory than what is proposed.

The young people that we are dealing with are very vulnerable, and we have a duty to ensure that the system works as well as possible for them. The model proposed in Government new clause 27 will not do that. It will add confusion and cause problems. I am sorry to have to say all this, because I strongly support the Bill, and know that good work has been put into many of its clauses.

In Wales we have a Children's Commissioner who has made a lot of difference to the lives of children there. In Wales it is universally recognised that it was

a big move forward to have the first Children's Commissioner in the UK. There were great hopes that the introduction of this legislation would address some of the areas that had caused difficulties. One of those areas—entry to buildings—is being addressed, so some progress is being made. However, it was also strongly hoped that the commissioner's powers could be extended to cover non-devolved matters. That would be the most satisfactory way of moving forward. I appeal to my hon. Friend to see whether anything else can be done to devise a more satisfactory solution.

I conclude by saying that the power of the Secretary of State to direct the English Children's Commissioner makes that commissioner much less independent than the other Children's Commissioners in the UK, and also much less independent than all the Children's Commissioners in the European network, who are now meeting in Cardiff. If the English commissioner is not totally independent, the Bill falls down in addressing the criteria for what commissioners should be. I cannot see how a commissioner can be independent if they can be directed by the Secretary of State.

I oppose Government new clause 27; my preferred option would be new clause 18. By tabling new clause 7, I also seek information on the Government's thinking about a memorandum of understanding.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

Thank you, Mr. Benton. I apologise for going beyond the brief of the Committee this morning. I shall try not to do so again, although the issues we are considering reflect on the devolution settlement, the way that devolution is working and how it will work in future in respect of the Bill.

I am sorry that the hon. Member for Caernarfon cannot be present, because of the good work that he and the hon. Member for Cardiff, North did in the Select Committee on Welsh Affairs on the report on the powers of the Children's Commissioner for Wales. It clarified thinking on what could be achieved and what would be in the best interests of children in Wales.

I am saddened that we seem to have reached an impasse vis-a-vis the Children's Commissioner for Wales, because there is much that is good in the Bill. Everyone who has the welfare of children at heart supports it. There were high hopes when the Bill was published that it would provide an opportunity to build on the good work being done by the Children's Commissioner for Wales—to reinforce and extend his powers within Wales, and also, in a limited degree, to extend his powers in respect of those children who are normally resident in Wales but who, for whatever reason, find themselves in England in other institutions or situations. The test that I apply to the amendments and new clauses is what will they do to reinforce and strengthen the powers of the Children's Commissioner for Wales and to extend his ability to look after the interests of such children.

In her evidence to the Welsh Affairs Committee, Jane Hutt, the Welsh Minister for Health and Social Services, summed up what we want. She said that

''the most important thing is for us all to look at children and young people in Wales and to say for them: 'How can we ensure that we preserve the independence of the commissioner and enable children and young people to have one single point of reference in terms of seeking to make their views known or raising issues with the commissioner?'''

That is another test of how the amendments and new clauses will work.

I have no problem with Government amendments Nos. 11, 178, 13 and 17, which help to clarify the role of the relationship between the commissioners in England and Wales. However, as the hon. Member for Cardiff, North explained, there are difficulties with Government new clause 17, which undoes almost all the good work done in the other place in making amendments that clarified the relationship.

I take the practical example of the Clywch inquiry, which was welcomed by all sectors of political life in Wales and by other organisations on which its recommendations had an impact. If the new relationship as described in the Bill were in place, how would that inquiry be held, because it covers devolved and reserved matters? Would there be two inquiries, one by the Children's Commissioner for Wales and one by the English commissioner in respect of the reserved matters, or a single joint inquiry, with both commissioners being represented? There would be many possibilities for duplication and waste of resources.

In the case of the Clwych inquiry, the right thing happened: the Children's Commissioner for Wales carried out a very well focused inquiry and produced outcomes and recommendations that several organisations throughout Wales found very helpful. I therefore challenge the Minister on a practical point: how does the Bill improve that situation, and how will it be implemented?

New clause 27(6) states:

''Where the Secretary of State considers that . . . an individual child in Wales raises issues of relevance to other children''.

I presume that this is the Secretary of State for Education and Skills, or is it the Secretary of State for Wales? It is very unclear to whom the legislation refers. It should be the Secretary of State for Wales who recommends that an inquiry be carried out. Perhaps the Under-Secretary will clarify that. The new clause is replicated in new clauses 28 and 29, and all the comments that I have made about the situation in Wales have been replicated in representations that we have had on the situation in Northern Ireland and Scotland.

My amendment No. 198, and amendment No. 195 in the name of the hon. Member for Caernarfon, which is very similar but fuller, make absolutely clear the limitations of the operations in Wales of the Children's Commissioner for England. We also support amendment No. 21, which would extend the commissioner's powers outside Wales, and new clauses 6 and 7.

I express again my sadness that we do not seem to be able to agree on this point. This matter has united the whole body politic throughout Wales, including local authorities, charities and other non-governmental organisations. It is ridiculous that we do not seem to be able to propose a solution, and that we are putting legislation before the rights and welfare of children. The Minister tells us that this is happening in practice, but I cannot believe that we should not legislate for what is happening in practice. Why should we legislate for something that is different from what is working? As the hon. Member for Cardiff, North said, we should make it as simple as possible for children to get into the system and to be confident that they know where they are going and that the system will deliver what they seek. We should ensure that it is a child-friendly service. The Bill makes it legislatively friendly, but not children friendly.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I have listened to the debate with great interest because I could not be further away from Wales if I tried. It seems that two new rules of devolution are being propounded. One, which the hon. Member for Mid-Dorset and North Poole propounds, is that if Wales chooses to act on a devolved matter, England must follow. The other, which the hon. Member for Cardiff, North propounds, is that if Wales decides to act on a non-devolved matter, England must not poke its nose in.

It is curious that what I believed to be a comprehensible, albeit in some respects flawed, devolution settlement is now being messed about with at both ends, and that we are being left with complete confusion about the underlying principles of devolution. It seems sensible that something is either a UK matter or a devolved matter, which is why I tabled the amendment that subsequently I did not move on Tuesday. I accept that, in different parts of the UK, some things are UK matters and other things are devolved, but the Bill leaves us with complete confusion. I suspect that this affects Ministers more than it affects me, because they are being asked to sort it out. Two completely different principles are being propounded by people who support the devolution settlement; they then ask a UK Minister to sort it out, but God help him if he sorts it out as he has—in a way that is not to the satisfaction of the Members from Wales.

I do not think that this is a perfect solution—I do not think that a perfect solution is possible—but the moment that the UK Minister proposes a solution that the hon. Member for Cardiff, North and other hon. Members from Wales do not like, they ask for it to be reviewed to keep the existing arrangement in Wales, even though that goes beyond the devolution settlement. I bet the Minister would not be encouraged to tell the Welsh commissioner to keep his nose out of non-devolved affairs, although that would be a perfectly reasonable attitude to take. Some things are devolved matters and some are not. Surely, therefore,

it should be for a commissioner established by the UK Parliament to take account of reserved matters, and for a commissioner appointed by the National Assembly for Wales to take account of devolved matters, but that approach does not seem to be acceptable to the hon. Member for Cardiff, North either.

Meanwhile, Welsh Members of this Committee vote on matters that affect only England, and could therefore affect the outcome of a vote, although they have not as yet. We are in a position in which if we are not careful, the devolution settlement will continually be pushed and pushed, not in debates on the principles, which, as the Under-Secretary said, is where such debates should take place, but in debates on individual aspects of devolution, such as the implementation of particular policies where they affect the devolution settlement.

The hon. Member for Brecon and Radnorshire (Mr. Williams) says that we should legislate for what is happening, but fox hunting is happening and we do not seem to be too happy to legislate on that.

There has to be a hard-nosed approach to this matter, which says either, ''This is the devolution settlement, let's work within it,'' or, ''This is a UK Minister, let him put forward a solution, and let us accept it.'' Having said that, I like the idea suggested by the hon. Member for Cardiff, North, that the commissioner—I do not think of him as the commissioner for England, but as the Children's Commissioner established by the UK Parliament—should be empowered to delegate matters to the commissioners in the other countries. That proposal seems to be entirely sensible, but it does not appear to have been put forward as an amendment to the Bill.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd 11:15, 14 Hydref 2004

On a point of order, Mr. Benton. When amendments are grouped together as these are, how do we vote on a new clause if it is not the lead amendment?

Photo of Joe Benton Joe Benton Llafur, Bootle

If it is not the lead amendment, we will first have to vote on the lead amendment. If you wish to press a new clause to a vote, the appropriate time to do so is when we come to it on the amendment paper. To which clause is is the hon. Lady referring?

Photo of Joe Benton Joe Benton Llafur, Bootle

I am informed that it will automatically be put to a vote, but not until we reach the new clauses.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Further to that point of order, Mr. Benton. We would like to have a separate vote on new clause 6. I presume that the same procedure will apply?

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

We have had an interesting and wide-ranging debate, for which I thank colleagues on all sides, although we may have disagreed, because that is what this place is about—scrutinising legislation put before it by the Executive.

I will briefly comment on some of my colleagues' comments before moving on to the amendments and new clauses generally. The hon. Member for East Worthing and Shoreham started by talking about the devolution settlement, which brought to mind St. Paul on the road to Damascus. We always welcome a convert, particularly given that a Conservative speaking in favour of devolution is rather rare—as rare, in fact, as a Conservative in my constituency.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The Under-Secretary is being entirely disingenuous for the sake of a few cheap laughs, as he knows. Like the principle of a commissioner, the principle of devolution has become a reality, whether we agreed with it or not, and we are working with it. We do not want the way in which devolution works to be completely undermined because of the confusion in the Bill. That is an entirely consistent position.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I am sorry if the hon. Gentleman is a little upset—I would not want to upset him for the world. However, I was not quite clear, when he quoted Members of the other place at the beginning of his remarks, whether he was in favour of extending the powers of the Welsh commissioner to look into reserved matters.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The whole purpose of our amendments is to make it clear where the buck stops—that is what I am trying to achieve. So far, the Under-Secretary has signally failed to explain where the buck stops.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

I will certainly say where the buck stops, but, even after that reply, I am not clear whether the hon. Gentleman supports extending the powers of the Welsh commissioner to look into reserved matters. It is a perfectly simple question, but the hon. Gentleman is clearly unable to answer it.

The important point to remember is that the Government amendments in no way dilute or diminish the powers of the Welsh commissioner or the commissioners in the other countries of the United Kingdom. In fact, in the specific terms of the present argument, their powers will remain untouched.

As regards the amendments that we have tabled on the powers of the English commissioner in reserved matters, the buck stops here—in the British Parliament. Ministers must come to the United Kingdom Parliament, where they are answerable on reserved matters, which are the responsibility of the Government in this place. I hope that that helps the hon. Gentleman.

The hon. Gentleman went on to express concerns, which I perfectly understand, about cross-border issues, and I shall perhaps make some general remarks

about that. The Government's view, however, is that a child who wanted to take up an issue would go to the commissioner in the country where they were resident. That would be the case even if an issue arose when a Welsh child was on a day trip to England—or, conversely, an English child was on a day trip to Wales—and there was nothing to prevent the child from going to the commissioner in England, if that was appropriate. A child will go to whichever commissioner is responsible for the part of the United Kingdom in which they are resident at that time.

To underpin the point and address the concerns of my hon. Friend the Member for Cardiff, North in the Welsh context, I am trying to stress all the time that, as far as the Government are concerned, the Welsh commissioner will be the point of contact for children in Wales. If he then feels he should refer the matter on because it covers a reserved area, that is a matter for discussion between him and the English-plus commissioner. However, the child's first point of contact will be the commissioner in Wales.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

The Minister makes great play of the fact that he is not lessening the powers of the Children's Commissioner for Wales, but he now says that if a child goes to the commissioner in Wales on a reserved matter, the commissioner will refer it to the commissioner in England. At the moment, however, the commissioner in Wales would deal with such matters himself, so the Under-Secretary must be lessening his powers.

Photo of Don Touhig Don Touhig Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs, The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Department for Constitutional Affairs) (also in Wales Office)

With respect to the hon. Gentleman, I did not refer to matters that he deals with at the moment. As was said earlier in relation to the late Lord Williams of Mostyn and his amendment to the Care Standards Act 2000, the Children's Commissioner for Wales can look into any matter affecting a child in Wales. In practice, of course, if that matter fell within a reserved area, he would ask the Assembly or a Whitehall Minister to look into it because he would have no power to investigate it. He would also have the opportunity to ask the English commissioner to take a matter up if that was appropriate. However, that does not prevent him from carrying out an investigation and then, say, collaborating with his colleague, the English commissioner, and asking him to take it further. We are talking about an extension, not a diminution of his powers.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

I entirely accept the good sense of what my hon. Friend says, but is there not a—

It being twenty-five minutes past Eleven o' clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.