House of Commons Welsh Affairs Committee
The Powers of the Children's Commissioner for Wales
Fifth Report of Session 2003–04
Report, together with formal minutes, oral and written evidence
Ordered by The House of Commons to be printed 21 July 2004
HC 538 Published on 29 July 2004 by authority of the House of Commons London: The Stationery Office Limited £14.50
The Welsh Affairs Committee
The Welsh Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Office of the Secretary of State for Wales (including relations with the National Assembly for Wales.)
Current membership Mr Martyn Jones MP (Labour, Clwyd South) (Chairman) Mr Martin Caton MP (Labour, Gower) Mr Huw Edwards MP (Labour, Monmouth) Mr Nigel Evans MP (Conservative, Ribble Valley) Dr Hywel Francis MP (Labour, Aberavon) Julie Morgan MP (Labour, Cardiff North) Albert Owen MP (Labour, Ynys Môn) Mr Mark Prisk MP (Conservative, Hertford and Stortford) Mrs Betty Williams MP (Labour, Conwy) Hywel Williams MP (Plaid Cymru, Caernarfon) Mr Roger Williams MP (Liberal Democrat, Brecon and Radnorshire)
Powers The committee is one of the Departmental select Committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk.
Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/parliamentary_committees/welsh_affairs_committee.cfm. A list of Reports of the Committee in the present Parliament is at the back of this volume.
Committee staff The current staff of the Committee are James Davies (Clerk), Paul Derrett (Committee Assistant) and Sarah Colebrook (Secretary).
Contacts All correspondence should be addressed to the Clerk of the Welsh Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 6189; the Committee’s email address is [email protected]
The Powers of the Children’s Commissioner for Wales 1
Contents
Report Page
Summary 3
1 Background to the Inquiry 5 The Committee’s Report on the Empowerment of Children and Young People in Wales 5 The Government’s Response 6
2 The Children Bill 8 Introduction 8 Proposals for a Children’s Commissioner for England 8 The Bill’s Progress through the House of Lords 9 Independent Inquiries 10 The United Nations Convention on the Rights of the Child 11 Conclusion 12
3 Consultation on the Children’s Commissioner for England 13 Introduction 13 National Assembly and the Welsh Assembly Government 13 The Children’s Commissioners 13 Children and Young People in Wales 14
4 The Powers of the Children’s Commissioner for Wales 16
5 The Impact of the Children’s Commissioner for England on Children in Wales 18 Introduction 18 Co-operation between the Commissioners 18 Resources 20 Representation in Wales 21 Provision of Welsh language 21
6 Extending the Powers of the Children’s Commissioner for Wales 24 Introduction 24 Proposed New Powers 24 The Government’s Position 27
Conclusions and recommendations 29
Formal minutes 31
Witnesses 32
List of written evidence 32
Reports from the Welsh Affairs Committee since 2001 33
2 The Powers of the Children’s Commissioner for Wales
The Powers of the Children’s Commissioner for Wales 3
Summary
In January 2004 we published our report on the Empowerment of Children and Young People in Wales. We recommended that the Government extended the remit and powers of the Children’s Commissioner for Wales to include non-devolved matters. In its response, the Government rejected those recommendations. On 3 March 2004 the Government presented the Children Bill to Parliament, which contains provisions to establish a Children’s Commissioner for England whose remit would include non- devolved matters in Wales. The Bill has been passed by the House of Lords and its introduction in the House of Commons is expected shortly.
We reiterate our belief that the Children’s Commissioner for Wales has made a positive impact on the lives of children in Wales and have been impressed with the way Peter Clarke, the Children’s Commissioner, has developed informal working relations with organisations and agencies that cover areas outside of his remit. This Report reaffirms our belief that the Children’s Commissioner for Wales should have a remit that covers fully all aspects of Welsh children’s lives.
We conclude that the proposals as set out in the Bill will have an undesirable impact that could fundamentally undermine the work of the Children’s Commissioner for Wales in his support for children and young people in Wales.
The Government has argued that it does not wish to use the Children Bill as a vehicle for extending the devolution settlement in Wales. We conclude that this argument is misguided and puts into question the Minister’s commitment to placing the needs of children over that of spurious bureaucratic expediency.
We recommend strongly that the Government amend the Children Bill to confer on the Children’s Commissioner for Wales powers that cover all aspects of a child’s life in Wales.
Should the Government not extend the remit of the Children’s Commissioner for Wales, we make a number of recommendations to improve the ability of the English Commissioner to carry out his or her tasks in Wales. In particular: x We are not convinced that the Government has assessed correctly the resources for the Children’s Commissioner for England in respect of his or her obligations to Wales. In particular without a physical presence in Wales, the role of promoting the English Commissioner may have to fall on the Welsh Commissioner. We believe that this would be an inappropriate call on his resources. x Access to services in the Welsh language is vital to the needs of Welsh-speaking children. Therefore the office of the Children’s Commissioner must provide documentation and services in Welsh from the outset, not after a period of time. We are unconvinced that the Government has given this important issue serious consideration.
The Powers of the Children’s Commissioner for Wales 5
1 Background to the Inquiry
The Committee’s Report on the Empowerment of Children and Young People in Wales 1. In January 2004 the Welsh Affairs Committee published its Report on the Empowerment of Children and Young People in Wales.1 The Report considered all aspects of children and young people’s participation in life in Wales, and the role that Government, Statutory Bodies and non-governmental organisations played in facilitating that participation. It was the latest in a series of inquiries that the Committee has made into the welfare of Welsh children. In February 2002 the Committee inquired into the withdrawal of the Children’s Society from Wales.2 The Committee also inquired into the problems faced by Welsh young offenders held in institutions outside of Wales in May 2001.3 In January 2001, the Committee considered the problems of social exclusion for children in Wales.4
2. Part of the inquiry into the Empowerment of Children and Young People in Wales considered the role and powers of the Children’s Commissioner for Wales. At present, the remit of the Children’s Commissioner for Wales reflects the division of powers as set out in the devolution settlement. At the time of that inquiry, we were aware that the Government was proposing to introduce legislation to establish a Children’s Commissioner for England, whose remit would include non-devolved matters throughout the United Kingdom. Our Report reflected the fact that we did not believe that children and young people in Wales would be best served by the establishment of Children’s Commissioner for England that would represent them in non-devolved matters:
“The Children’s Commissioner for Wales supports Welsh children for the majority of their needs. It would make little sense for him to relinquish that role to another Commissioner once a child’s needs crossed over into a reserved matter. Such a circumstance could run the risk of undermining any continuity and trust that had been built up between that child and the Commissioner for Wales”.5
3. Therefore, we recommended that “the Government include in any Bill to establish a Children’s Commissioner for England, Clauses to extend the powers of the Children’s Commissioner for Wales to cover all non-devolved areas of policy for children and young people in Wales”.6
1 First Report from the Welsh Affairs Committee, The Empowerment of Children and Young People in Wales, HC 70 of Session 2003–04 2 First Report from the Welsh Affairs Committee, The Children’s Society in Wales, HC 525 of Session 2001-02 3 Second Report from the Welsh Affairs Committee, Welsh Young Offenders Held Outside Wales: Interim Report and Proposals for Further Inquiry, HC 511 of Session 2000-2001 4 Third Report from the Welsh Affairs Committee, Social Exclusion in Wales, HC 365, of Session 1999-2000
5 First Report from the Welsh Affairs Committee, The Empowerment of Children and Young People in Wales, HC 70 of Session 2003–04, para 103 6 First Report from the Welsh Affairs Committee, The Empowerment of Children and Young People in Wales, HC 70 of Session 2003–04, para 105
6 The Powers of the Children’s Commissioner for Wales
The Government’s Response
4. The Government’s response to our Report was published on 6 April 2004.7 It rejected our recommendations on the Children’s Commissioner for Wales:
“The issue of Commissioners’ remits is one that affects all 4 administrations of the UK, not only Wales. The Government’s priority has been to establish arrangements that work fairly and equally for children on a UK-wide basis, and that is why we have introduced legislation to establish a Commissioner that will deal with all non- devolved matters affecting children, irrespective of their geographic location.”
The Children’s Commissioner that will be established through the Children Bill has been designed to ensure a consistent approach to all non-devolved policies and we are clear that children affected by non-devolved services must have recourse to the same Commissioner services irrespective of their geographic point of access.
This approach also ensures that those making the policies at the centre receive consistent messages about what they need to improve, and that any advice or support given by the Commissioner is focused on achieving the key outcomes for children as outlined in the Green Paper Every Child Matters and its follow-up Every Child Matters: Next Steps.
Although only one Commissioner will have responsibility for non-devolved matters affecting children, we are clear that the Children’s Commissioner must work with the Devolved Commissioners when considering matters that impact on children in the Devolved Administrations. The Children Bill proposes a duty on the Children’s Commissioner to take the views and work of her UK counterparts into account when looking at non-devolved issues.
The intention is that the Commissioner will be proactive in seeking the views of the other UK Children’s Commissioners in such circumstances. The other UK Children’s Commissioners will also be able to raise issues and offer their views to the Commissioner on these matters, which the Commissioner must then consider. Once appointed, we would expect the Children’s Commissioner to collaborate with the other Commissioners to draw up detailed arrangements for effective working on behalf of all UK children, for example through the development of Memorandums of Understanding.”8
5. The introduction of the Children Bill with provisions to establish a Children’s Commissioner for England with a remit over Wales meant that it was imperative for us to revisit this matter.9 Therefore, on 1st April we announced an inquiry into the powers of the Children’s Commissioner for Wales in relation to the Children Bill.
7 Second Special Report of Session 2003–04. The Government Response to the First Report of the Committee Session 2003–04: The Empowerment of Children and Young People in Wales, HC459
8 Second Special Report of Session 2003–04. The Government Response to the First Report of the Committee Session 2003–04: The Empowerment of Children and Young People in Wales, HC459, pages 8 and 9 9 The Children Bill was presented to the House of Lords on 3 March 2004
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6. We took oral evidence on 22 April from Jane Hutt AM, Minister for Health and Social Services, Welsh Assembly Government,10 and Peter Clarke, Children’s Commissioner for Wales.11 On Tuesday 4 May we took oral evidence from the Rt. Hon. Margaret Hodge MP, Minister for Children, Young People and Families, Department for Education and Employment.12 We also received written evidence from children’s organisations in Wales and from the Welsh Language Board.
7. We decided to delay the publication of our Report to enable us to take into account any changes that were made to the Bill in the House of Lords.
10 QQ1-29 11 QQ29-75 12 QQ76-165
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2 The Children Bill
Introduction 8. The Children Bill has many clauses that will benefit children in Wales, in particular, the transfer of responsibility of the Children and Family Courts Advisory and Support Service (CAFCASS) to the National Assembly. Those clauses are in line with the recommendations on CAFCASS that can be found in our report on the Empowerment of Children and Young People in Wales.13 We welcome the Government’s decision to transfer responsibility for CAFCASS to the National Assembly.
Proposals for a Children’s Commissioner for England 9. The establishment of a Children’s Commissioner for England is primarily a matter for England. However, the fact that the Government proposes that part of the Commissioner’s duties would be to oversee non-devolved matters in Wales obliges us to scrutinise that part of the Bill.
10. The establishment of a Children’s Commissioner for England is set out in Part 1 of the Children Bill.14 In its original form, clause 2 of the Bill provided an overview of the general functions of the Commissioner for England. Those functions were to promote the awareness of the views and interests of children in the United Kingdom.15 Furthermore, it would be the Commissioner’s responsibility to: x encourage people engaged in children’s activities to take account of the views of children; x advise the Secretary of State on their views; consider or research the operation of complaints procedures affecting children; x and consider or research any other matter relating to the interests of children.16
11. The Commissioner would also have the responsibility to promote children’s physical and mental health; to protect them from harm and neglect; to promote education and training, to encourage children’s contribution to society; and to champion their economic and social well-being.17 In carrying out those duties, the Bill stated that the Children’s Commissioner for England may have regard to the United Nations Convention on the Rights of the Child.18
13 First Report from the Welsh Affairs Committee, The Empowerment of Children and Young People in Wales, HC 70 of Session 2003–04 14 Children Bill [HL] 35 presented to Parliament, henceforth “HL Bill 35”; and Children Bill as amended on Report, [HL] 97, henceforth “HL Bill 97” 15 HL Bill 35, clause 1
16 HL Bill 35, clause2 17 HL Bill 35, clause 3 18 HL Bill 35, clause 7
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12. The powers of the Children’s Commissioner for England did not extend to initiating any investigations into the cases of individual children.19 Those powers of investigation were to be limited to investigations initiated by the Secretary of State.20
13. Clause 5 of the Bill set out the framework for the relationship between the Children’s Commissioner for England and the Children’s Commissioners for Wales, Scotland and Northern Ireland. It stated that the English Commissioner would not be concerned with any matter falling within the remit of the Children’s Commissioner for Wales.21 However, the Commissioner would have responsibilities for non-devolved matters in Wales. In discharging that function the Bill stated that the Commissioner “must take account of the views of and any work undertaken by the Children’s Commissioner for Wales”.22
The Bill’s Progress through the House of Lords 14. The Children Bill received its Second Reading in the House of Lords on 30 March 2004. It was then considered in Committee between 4 May and 27 May.23 The Bill was considered at Report stage in the House of Lords between 17 June and 5 July,24 and received its Third Reading on 15 July. During its passage through the House of Lords, the Bill was heavily amended.
15. The Bill, as amended in the House of Lords, extends the general functions of the Commissioner in clause 2 to promote and safeguard the rights and interests of children in England.25 In carrying out those functions it would be the Commissioner’s responsibility to: x encourage people engaged in children’s activities to take account of the views of children; x advise the Secretary of State on the rights, views and interests of children; x review and report on the effectiveness of advice and advocacy services, complaints procedures and inspection and whistle-blowing arrangements that affect children; and x review and report on any other matter relating to the rights, views and interests of children.26
16. The Commissioner would also have the responsibility to ensure that children are made aware of his or her role and how they may communicate with the Commissioner.27 In carrying out those duties, the Bill states that the Children’s Commissioner for England
19 HL Bill 35 clause 6 20 HL Bill 35, clause 1 21 HL Bill 35, clause 5 (1)(a) 22 HL Bill 35, clause 5 (2) (a) 23 The Bill was considered in Committee on 4, 6, 20, 24 and 27 May 24 The Bill was considered on Report on 17, 21, 22 June and 5 July
25 HL Bill 97, page 1 26 HL Bill 97, clause 2(2) 27 HL Bill 97, clause 2(3)
10 The Powers of the Children’s Commissioner for Wales
must “have particular regard to groups of children who do not have other adequate means by which they can make their views known”.28
17. Clause 2 was further amended in the House of Lords to restrict the remit of the English Commissioner to England. In its original form, the Bill included in the English Commissioner’s remit, powers over non-devolved matters in Wales, Scotland and Northern Ireland.29 It is not clear whether that role remains in the Bill. However, the Government has stated that the “English Commissioner, working with his counterparts, should have this function”.30
18. Clause 6 of the Bill sets out the framework for the relationship between the Children’s Commissioner for England and the Children’s Commissioners for Wales, Scotland and Northern Ireland. It states that the English Commissioner would not be concerned with any matter falling within the remit of the Children’s Commissioner for Wales.31 With regard to non-devolved matters, the Bill places a duty of consultation on the English Commissioner, but the detail of how that would work in practice, is still under discussion between the UK Government and the devolved institutions.32 Baroness Andrews, the Government’s spokesperson in the House of Lords, confirmed the Government’s position that “there should be legislation to promote effective co-operation between the commissioners”.33
Independent Inquiries
19. The Bill in its original form did not allow the English Commissioner to instigate investigations outside of those initiated by the Secretary of State. That limitation on inquiries would have extended to include inquiries in Wales. Notwithstanding the consensus in Wales that the Children’s Commissioner for Wales should have responsibilities for all aspects of life of Welsh Children, many of our witnesses believed that that restriction could be detrimental to Welsh children.34 Peter Clarke, the Children’s Commissioner for Wales, gave us a stark example of how that would have impacted on Wales:
“Not all children are able to receive an equal service from the Children’s Commissioner for Wales despite similar circumstances. This may even be the case where they are receiving services from the same provider. For example, two children from the same street, but resident in Hillside secure accommodation in Neath, might be affected by this anomaly. One might be placed by the local authority, and the other via the youth justice system. The [Welsh] Commissioner has extensive powers in respect of the child placed by the local authority, but only the power to make representations via the National Assembly in respect of the other child. The
28 HL Bill 97, clause 2(4) 29 HL Deb, 15 July 2004, Session 2003-04, col, 1414 30 HL Deb 17 June 2004, Session 2003-04, col 956 31 HL Bill 97, clause 6
32 HL Deb, 15 July 2004, Session 2003-04, col 1417 33 HL Deb, 17 June 2004, Session 2003–04, col 958 34 See QQ30, 70–72 and Ev 31,36 and 41
The Powers of the Children’s Commissioner for Wales 11
establishment of the new ‘UK’ Children’s Commissioner as set out in Part 1 of the Bill offers such a child or young person no greater support or protection than at present, because of the role’s limited powers.”35
20. In its Committee Stage the Bill was amended to allow the English Commissioner to instigate inquiries.36 The Bill now confers on the Children’s Commissioner for England powers to initiate inquiries where “he considers that the case of an individual child raises issues of public policy or relevance to other children”.37 The Bill further states that where the Secretary of State considers that the case of an individual child raises issues of relevance to other children, he may direct the Children’s Commissioner to hold an inquiry into that case.38
21. Our experience of the Children’s Commissioner for Wales confirms to us that the power to launch investigations enhances rather than limits the effectiveness of a Commissioner. For that reason we welcome the amendments to the Bill to empower the Children’s Commissioner for England to instigate inquiries. However, we remain concerned that the Secretary of State would retain an unwanted influence over the Commissioner in respect of inquiries that could undermine the Commissioner’s independence.
The United Nations Convention on the Rights of the Child 22. The United Nations Convention on the Rights of the Child is an unambiguous international benchmark of minimum standards on children's civil, political, economic, cultural and social rights. At the heart of the Convention is the principle that:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.39
23. The Bill in its original form stated that the Children’s Commissioner “may have regard” to the United Nations Convention on the Rights of the Child. In its Lords Committee stage, the Bill was amended to place a stronger duty on the Children’s Commissioner for England in that regard, and to bring that office in line with the Children’s Commissioners for Wales, Scotland and Northern Ireland.40
24. We welcome the fact that the Bill has been amended to state that the Children’s Commissioner for England must have, rather than may have, regard to the United Nations Convention on the Rights of the Child. We applaud the Government for bringing the English Commissioner’s obligations under the Convention in line with the obligations of the Commissioners for Wales, Scotland and Northern Ireland.
35 Ev 29 36 HL Deb 17 June 2004, Session 2003-04, col 926–932 37 HL Bill 97, clause 4
38 HL Bill 97, clause 5 39 Article 3.1 of the Convention 40 HL Deb, 17 June 2004, Session 2003-04, col 1049–1059
12 The Powers of the Children’s Commissioner for Wales
Conclusion 25. We welcome those positive amendments to the Bill, but they do not address the fundamental question of which Commissioner would have authority over non-devolved matters in Wales. Whilst the Bill was amended on Report to restrict the remit of the Children’s Commissioner for England on non-devolved matters to England,41 further amendments were tabled, but not passed, to extend the powers of the Children’s Commissioner for Wales to cover those areas.42 During that debate, Baroness Andrews, Government Spokesperson for Education and Skills; Health; Work and Pensions, stated that the Government’s view was that the English Commissioner should have the reporting power to the UK Government over non-devolved matters. Furthermore, she reaffirmed the Government’s position that it “would not use the legislation to extend the powers and the remit of the Children’s Commissioner for Wales”.43 We consider the arguments surrounding that position later in this Report.
26. We recommend strongly that the Government use the period before it introduces the Bill to the House of Commons as time for reflection. Both our inquiry and the debate in the House of Lords have highlighted the need for a better division of powers on non-devolved matters between the Children’s Commissioners for Wales and England. We recommend that the Children Bill be amended to confer on the Children’s Commissioner for Wales powers that cover all aspects of a child’s life in Wales.
41 HL Deb, 17 June 2004, Session 2003-04, col 884-901 42 HL Deb, 17 June 2004, Session 2003-04, col 949 43 HL Deb, 17 June 2004, Session 2003-04, col 956
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3 Consultation on the Children’s Commissioner for England
Introduction 27. Earlier in this Report we noted that the Children Bill contains a number of clauses that would affect children in Wales. Therefore, we decided to scrutinise what consultation had taken place between the Government and interested parties in Wales on the provisions to establish a Children’s Commissioner for England.
National Assembly and the Welsh Assembly Government 28. On 22 April we took evidence from Jane Hutt AM, Minister for Health and Social Services, Welsh Assembly Government and Peter Clarke, the Children’s Commissioner for Wales. As this is a Bill that directly affects Wales we questioned them on their involvement in its drafting. Jane Hutt told us that both she and her officials were in close contact with the Department for Education and Skills during the drafting of the Bill. In addition, there was a lengthy exchange of correspondence, telephone calls and meetings with Margaret Hodge on the powers of the Children’s Commissioner, supported by discussions between officials.44
29. The Welsh Assembly Government gave a clear indication that it wished to see the Children Bill used to extend the role of the Children’s Commissioner for Wales to include non-devolved matters. That view is set out later in this report.45 In spite of that view, Jane Hutt explained that the UK Government had indicated that it would not accept the Welsh Assembly Government’s aspiration.46 However, when questioned, Jane Hutt felt unable to inform us of the reasons given by the UK government for that refusal. She argued that such questions were better asked of the UK Government.47
The Children’s Commissioners 30. Peter Clarke, the Children’s Commissioner for Wales, explained that he had been consulted extensively over the establishment of the Commissioners for Scotland and Northern Ireland:
“In Scotland and Northern Ireland I was extensively consulted and I actually went to Belfast when their Assembly was sitting and gave evidence, much as I am doing now, before the relevant committee prior to their setting their office up. I was video-linked [to] Scotland to a sub-committee of their Parliament”.48
44 Q2 45 See paras 64 and 77
46 Ev 27 47 Q4 48 Q43
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31. However, no such consultation had taken place in respect of the Children’s Commissioner for England. Peter Clarke explained that he had been invited to a meeting with Margaret Hodge, but that the meeting took place after decisions on the powers and role of the Children’s Commissioner for England had been taken. At that meeting Mr Clarke was informed of the Government’s plans and heard, for the first time, that those plans included conferring powers over non-devolved matters on the Commissioner for England. Peter Clarke told us that although he had aired his concerns at that meeting, Margaret Hodge had told him that the division of powers between the Commissioners was “non-negotiable”.49 Margaret Hodge told us that: “[the] only part that I said was non- negotiable was whether or not we would use the vehicle of creating an English Commissioner for England as a means of adding to the powers of the Welsh Commissioner on non-devolved matters”.50
Children and Young People in Wales 32. An important constituency to consult on the Children Bill was children themselves. Margaret Hodge told us that a consultation exercise was undertaken with children on the green paper. She said that over two-thirds of the 4,500 respondents to the exercise came from children and young people.51 However, she told us that “We did not specifically consult with Welsh children”.52 She further confirmed this in writing but argued that: “While there has not been direct consultation with children in Wales (or Scotland or Northern Ireland) I can assure you that we are extremely mindful of the impact of our proposals on children themselves”.53
33. The Minister did not consider it to be her responsibility to consult Welsh children even though she conceded that: “a third of the clauses concern Welsh matters and the way in which children and young people’s services will be delivered in Wales”.54 She argued that “it would have been appropriate for the Welsh Assembly and ministers there to undertake a consultation”.55 She further argued that “I do not think it was my job to consult them. The clauses that have been put forward in relation to services for children and young people in Wales were on the whole put forward by the Welsh Assembly and Welsh ministers. Therefore, the duty is on them to consult their population”.56
49 Q43&44 50 Q100 51 Q102 52 Q104 53 Ev p39
54 Q77 55 Q104 56 Q106
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34. The Children Bill is a Government Bill presented to Parliament by the UK Government. It will be considered by Parliament, and the resources necessary to enact the proposals within the Bill will be voted for by Parliament. Neither the National Assembly for Wales nor the Welsh Assembly Government have any formal role in that process. Therefore, it is the responsibility of the UK Government to consult with Welsh children on the desirability of that Bill. Not to take steps to include those children in a UK Government consultation exercise only serves to reinforce the belief that the views of Welsh children come second to the views of English children. Furthermore, while the Government consulted the National Assembly for Wales and the Welsh Assembly Government, it is clear that the UK Government ignored the clear thrust of its response.57 The devolution settlement is a complex power-sharing arrangement, which evolves as new legislation is passed. Westminster retains primary legislative powers and therefore can dictate the agenda for England and Wales. For that process to work it has to consult equally in England and Wales.
35. We conclude that the Government’s approach to devolution on this issue has fallen short of what we would expect. Its failure specifically to consult either children in Wales or the Children’s Commissioner for Wales in advance, undermines the devolution settlement. More seriously it reinforces the notion that Wales remains on the margins of the UK Government’s consciousness. Had the Minister consulted the Children’s Commissioner for Wales at an early stage, this could have been avoided. The Minister should reflect upon her error of judgement not to consult Welsh children on an issue that directly affects their lives.
57 See paras 65 and 66
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4 The Powers of the Children’s Commissioner for Wales
36. The Children’s Commissioner for Wales was established under Part V of the Care Standards Act 2000, and his remit was broadened under the Children’s Commissioner for Wales Act 2001. Its principal aim is to promote and safeguard the rights and welfare of children in Wales.
37. The Commissioner has express powers that are designed to enable him to be an informed and independent champion for Welsh children. Those powers include access to information and the independent authority to review and monitor the effects of policies, proposed legislation and the delivery of services that affect children in Wales. The Commissioner may also provide advice and assistance to children, and examine or investigate cases of particular children receiving regulated services. At any time, the Commissioner has the power to make representations to the National Assembly for Wales.58
38. In evidence to the Committee the Commissioner for Wales argued that the legislation did not confine his role to the devolved matters of health, education and social services. It included: x ensuring that children and young people know where his offices are and how to contact him (or his team); and that they are encouraged to do so. x gathering information on the views, opinions and experiences of children and young people to inform and influence his work programme; x making sure that he and his staff are accessible to children and young people and to meet children in their communities; x paying particular regard to children who are ‘hard to reach’; and x having regard to the UN Convention on the Rights of the Child in the exercise of his functions.59
39. The Commissioner’s remit, however, is limited to those areas of responsibility devolved to the National Assembly for Wales under the Government of Wales Act 1998 and the National Assembly for Wales (Transfer of Functions) Order 1999. Therefore, important areas including youth justice, the benefits system and police are excluded from his remit.
58 Ev 28 59 Ev 28
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40. Peter Clarke, the Children’s Commissioner for Wales, made it clear to us that the difficulties experienced by children and young people do not often fall neatly into devolved or non-devolved areas, or even into one area of service.60 To address that problem, he has sought to establish working relationships and memoranda of understanding with a number of bodies technically outside of his remit. He has also developed a number of informal ways of being able to advocate on behalf of children and young people in those non-devolved areas:
“I have been invited regularly to speak to magistrates’ benches, family court judges and indeed other judges within Wales; I have been invited into two of the three prisons in Wales; I have meetings regularly with operational commanders in South Wales Police and I have had contact with other police authorities. For example, regular meetings are held with the Police, and the Commissioner has visited prisons”.61
41. The Commissioner has offices in both South and North Wales. He must also comply with the Welsh Language Act 1993 in the provision of bilingual services to children and young people, and when dealing with the public.62
42. 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 with the way Peter Clarke, the Children’s Commissioner, has developed working relations 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.
60 Ev 29 61 Q40 62 Ev 29
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5 The Impact of the Children’s Commissioner for England on Children in Wales
Introduction 43. In many respects the role of the Children’s Commissioner for England is outside of our remit.The fact that the Government is determined to include non-devolved matters as part of the English Commissioner’s duties obliges us to scrutinise that role. Later in our report we consider whether the division of powers between the two Commissioners is appropriate.63 In this section we consider the current proposals contained within the Bill and the potential impact that they would have on children in Wales, and the work of the Children’s Commissioner for Wales.
Co-operation between the Commissioners 44. The Children Bill sets out the requirement for co-operation between the four Commissioners of the United Kingdom. Margaret Hodge believed that bilateral discussions and discussions between the four Commissioners would be a vital part of their work. “They need to get together to work out how they work best together to ensure that children’s interests are best represented. If that is reflected in a memorandum of understanding, that is a clear way in which people can operate over time”.64 The Minister further argued that the establishment of an English Commissioner would offer the Welsh Commissioner an additional avenue through which he could raise issues of concern.65 An alternative approach was offered by Jane Hutt AM, whereby arrangements could be made that would allow the Welsh Commissioner to act under delegated powers of the ‘UK’ Commissioner in Wales.66
45. While such agreements may appear positive on initial inspection, they raise serious concerns. Mr Clarke was wary of any agreement that would tie him in formally with the Children’s Commissioner for England: “The clearer it makes things, the more it would potentially compromise my independence”.67 In particular, Mr Clarke was uncomfortable with any formalised arrangements that covered inquiries. He argued that
“the one I would seriously object to is the power of the Secretary of State to instruct me to undertake an investigation, not only because of the independence issue but it would play havoc with my work programme. […] If the Secretary of State could not instruct me but only ask me, that is not a power the Assembly have and I would have to then publicly refuse, perhaps, and that in itself would become an issue and a
63 See paras 66 and 77 64 Q134
65 Q80 66 Ev 27 67 Q56
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distraction and the agenda would again have been set by the Secretary of State rather than the children of Wales”.68
46. A further concern that was raised was the implicit hierarchy amongst the four Commissioners with the English Commissioner being first amongst equals. That concern was shared by his colleagues in Northern Ireland and Scotland.69 In their joint statement, the Commissioner’s offices argued that the obligation to consultation with them was “weak”.70 They argued that the English Commissioner should have a “clear duty to work jointly and consult with the other Commissioners” on any matter of UK interest.71
47. The working relationship between the Children’s Commissioners in the United Kingdom was discussed at length during the Bill’s passage through the House of Lords. The Government acknowledged that a clear working relationship between them was vital: “we are currently urgently considering ways of paving the way for effective working between the Commissioners so that they can be the first port of call and single initial point of contact for children in those countries”.72 However, it is clear that the Government’s intention remains that the Children’s Commissioner for England will have a remit that covers non-devolved matters.73
48. The Children’s Commissioner for Wales had grave reservations about the arrangements to formalise working relations between himself and the Children’s Commissioner for England. He argued that: “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 post holder. Clearly, if the English Commissioner is truly independent, it would be inappropriate for anyone to do so on his behalf.”.74 Should the proposed division of powers be accepted by Parliament, we would expect a statutory duty to be placed upon the English Commissioner to consult, and work jointly, with the Commissioners for the other parts of the United Kingdom upon an equal footing. Furthermore, we recommend that any such arrangements must not impinge on the independence of the Children’s Commissioner for Wales.
68 Q57 69 Q62 70 Ev 34 71 Ev 34
72 HL Deb, 15 July 2004 of Session 2003-04, col 1417 73 HL Deb, 17 June 2004 of Session 2003-04, col 955–956 74 Ev 37
20 The Powers of the Children’s Commissioner for Wales
Resources 49. The Explanatory Notes to the Bill explain that the Government has set aside approximately £2.5 million per annum for the running of the Children’s Commissioner for England.75 In its memorandum, the Department for Education and Skills argued that this would be sufficient resources for the Commissioner to adequately carry out his or her functions.76
50. However, when compared to the resources available to the other Commissioners, the adequacy of those resources is open to question. Peter Clarke explained that while he had a budget of £1.5 million to service 650,000 children in Wales, the £2.5 million provided to the Children’s Commissioner for England had to cater for 11 million children. He believed that “the sums work out at 24p per child in England under what is being proposed, whereas I think we are £2 something per child in Wales”.77 In evidence to the Joint Committee on Human Rights, Mr McNeany, from the Office of the Northern Ireland Commissioner told that Committee that Northern Ireland Commissioner would receive £1.9 million in the current financial year and that on balance the resources set aside for the Children’s Commissioner for England appeared to be “quite unrealistic”.78 Professor Marshall, the Children’s Commissioner for Scotland, said that she would receive £1.5 million in the first year and that the resources for the English Commissioner were “on the low side”.79 At the same meeting Peter Clarke described the budget as “wholly inadequate”.80
51. Margaret Hodge believed that the resources were sufficient because the roles and functions of the English Commissioner would be different from those of the other Commissioners: “The Welsh Commissioner is having to spend time and money on pursuing individual complaints. The English Commissioner will not be doing that same job”.81
52. It is for the UK Government to decide upon the appropriate levels of support for children in England. However, it is our role to scrutinise such policies that have an impact on Wales. We remain unconvinced that the Government has assessed correctly the resources for the Children’s Commissioner for England in respect of his or her obligations to Wales. Therefore we recommend that the Government revisits its costing assumptions at the earliest opportunity.
75 Explanatory Notes to HL Bill 53, Para 197 76 Q115 77 Q74 78 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, Hc537-i,Q58
79 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, Hc537-i,Q58 80 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, Hc537-i,Q58 81 Q115
The Powers of the Children’s Commissioner for Wales 21
Representation in Wales 53. It is the Government’s intention that the Children’s Commissioner for England will have a UK role with regard to non-devolved matters. However, resources have not been made available for the Commissioner for England to have offices outside of England. In the second reading debate in the House of Lords, Baroness Ashton stated that the Government had “no plans for offices in Wales, Scotland and Northern Ireland for the English Commissioner”.82
54. Margaret Hodge believed that establishing an office in Wales would not represent the best use of resources. In the absence of a physical presence in the other parts of the United Kingdom, she hoped that the Commissioners could develop ways of working which would make “sense for children in Wales”. That would include the sharing of information on children’s views, the right of access to the Welsh Commissioner and the right of access to the English Commissioner around non-devolved issues.83
55. Peter Clarke did not believe that the English Commissioner would be able to achieve the goals set for its office if it did not have a physical presence in Wales. He was equally concerned about being asked to carry out the role of representing the English Commissioner in Wales: “I would have very serious reservations about being the sort of Welsh agent of a Commissioner in England because I would be then, in a sense, having to do the PR work for that office when I am actually not comfortable with its powers, with its remit and with the relationship between my office and theirs”.84
56. If the Government persists with its proposals, part of the resources allocated to the English Commissioner will need to be used to publicise his role in Wales and, where necessary, to act on behalf of children in Wales. Without a physical presence in Wales, the role of promoting the English Commissioner may have to fall on the Welsh Commissioner. This would be an inappropriate call on his resources. Therefore we recommend that the Government rethink its resource strategy to include a detailed assessment of the resources necessary for a physical presence in Wales.
Provision of Welsh language 57. The Welsh Language Act stipulates that all public bodies that provide services in Wales should have a Welsh language scheme. This applies to public bodies based either in Wales or in any other part of the United Kingdom.85 It places a duty on the public sector to treat Welsh and English on an equal basis, when providing services to the public in Wales.86 Furthermore, it applies to public bodies located outside Wales, as long as they provide services to the public in Wales.87
82 HL Deb, 30 March 2004, Session 2003-04, col 1303 83 Q142 84 Q68
85 Welsh Language Act 1993, clause 6 1(o) 86 Welsh Language Board: www.bwrdd-yr-iaith.org.uk 87 Ev 43
22 The Powers of the Children’s Commissioner for Wales
58. The Welsh Language Act will apply to the Children’s Commissioner for England; a point noted by the Minister for Children.88 However, when we asked Peter Clarke whether the resources available to the English Commissioner could provide those services he stated that he had
“serious doubts as to whether the budget proposed is anywhere near adequate even for the very limited role that is being proposed within the [Children] Act. Certainly I cannot see that there would be room for translating all the documentation, which is what it would need to do, into the Welsh language and making it available for Welsh speakers, to Welsh children. I cannot see how it can possibly achieve that”.89
59. Recalling his experience of working with Childline, Mr Clarke said that access to your first language was one of the most fundamental principles of providing that service. “For many children in Wales that language is the Welsh language. If an office like mine does not provide that service in that language then it is wasting its time for those children”.90 The 2001 Census indicated that Welsh was now spoken by over thirty–seven per cent of children aged between three and fifteen.91 Therefore, it is vital for Welsh language services to be provided by the English Commissioner. This point was reinforced by the Welsh Language Board which argued that: “Being unable to use their language of choice could make it much more difficult for children and young people to build a trusting relationship between themselves and the proposed Commissioner”.92
60. When we questioned Margaret Hodge on the resources available for the provision of the Welsh language she stated that the Government would abide by its legal obligations.93 However, she was unable to provide an assessment of the cost of abiding by that obligation.94 The Minister further argued that the responsibility for establishing a Welsh language programme lay not with the Government, but with the Commissioner for England.95 Furthermore the Government had not opened discussions with the Welsh Language Board.96
61. It is clear from our evidence that the Department had given little, if any, consideration to the provision of documentation and services in Welsh. While the Minister is correct in stating that the Commissioner for England will have to abide by the Welsh Language Act,97 it is the responsibility of the Government to prepare the necessary groundwork to ensure that the Welsh language can be provided from day one.
88 Q151 89 Q69 90 Q70 91 2001 census (www.statistics.gov.uk), and the Welsh Language Board (www.bwrdd-yr-iaith.org.uk) 92 Ev 44 93 Q151 94 Q153
95 Q154 & 155 96 QQ154 and 155 97 Q157
The Powers of the Children’s Commissioner for Wales 23
62. Should that service not be provided from the outset, there is a clear implication that those services would need to be provided in the interim by the office of the Children’s Commissioner for Wales. Peter Clarke was clear in his view that his resources could not stretch to providing those services in the interim period.98
63. Access to services in the Welsh language is vital to the needs of Welsh-speaking children. Those children require access to documentation and services in Welsh from the office of the English Commissioner from the outset, not after a period of time. By passing responsibility for the implementation of a Welsh language scheme to the Children’s Commissioner for England, the Minister has washed her hands of her responsibilities towards Welsh children. If the Government refuses to rethink its proposals, we recommend that the Government open discussions with the Welsh Language Board immediately to ensure that Welsh language services will be provided by the office of the Children’s Commissioner for England on the first day of its operations.
98 Q72
24 The Powers of the Children’s Commissioner for Wales
6 Extending the Powers of the Children’s Commissioner for Wales
Introduction 64. Earlier in this report we set out our previous recommendation that the remit of the Children’s Commissioner for Wales be extended to include non-devolved matters. In the previous section we have outlined our concerns about the Bill. We continue to believe that the appropriate solution to the concerns raised about the division of powers between the Children’s Commissioners in the United Kingdom is to give the Commissioners for the four parts of the United Kingdom remits that cover fully the countries that they represent. Our inquiry has made clear that we are not alone in this view.
Proposed New Powers 65. In written evidence to the Committee, the Welsh Assembly Government stated its desire to confer additional powers onto the Children’s Commissioner for Wales. It noted that the National Assembly’s Health and Social Services Committee had published a report99 in which it concluded that ‘the widest possible functions in respect of non- devolved policies and services should be explored’.100 Furthermore, in plenary debate on the Commissioner’s Second Annual Report on 5 November 2003, the National Assembly agreed unanimously that the Welsh Assembly Government should “initiate discussions with the Westminster Government to confer on the Children’s Commissioner wider statutory functions”.101 The National Assembly debated the Children Bill on 4 May 2004. In that debate, the National Assembly agreed unanimously to the following Motion:
“the Assembly notes the provisions of the Children Bill currently in Parliament and the widespread support it has attracted and welcomes the additional powers it grants the Assembly, but rejects the proposals in the Bill that the Children's Commissioner for England will have statutory functions over non-devolved matters affecting children and young people in Wales, and instead calls for the powers of the Children's Commissioner for Wales to be extended over those non-devolved areas of policy”.102
99 The report was published on 30 May 2000, and can be found at www.wales.gov.uk
100 www.wales.gov.uk 101 Ev 27 102 A full record of the debate can be found at www.wales.gov.uk/keypubrecordproceedings/index.htm.
The Powers of the Children’s Commissioner for Wales 25
66. The Welsh Assembly Government regarded the Children Bill as an opportunity to extend the Welsh Commissioner’s formal powers and stated that the underlying principle should be that “children and young people are clear about the lines of communication to the Welsh Children’s Commissioner on all matters affecting them”.103 Furthermore, the Welsh Assembly Government believed that the most important issue was one of consistency and that a single Commissioner should provide a clear and consistent point of contact for children and young people in Wales.104
67. Save the Children Cymru stated that the current proposals for a Children’s Commissioner for England would create “the ridiculous situation” where a child […] would be expected to make contact with one Commissioner on one issue – for example the quality of care in a children’s home in Wales – and on another issue – for example the treatment in a Young Offender Institution in Wales or England – to make contact with another Commissioner based in England.105 It concluded that it was “bemused” by the Government’s proposals, and argued that “the Government seems unable or unwilling to comprehend that the child’s need for a consistent and understandable approach must come above the needs of the UK Government”.106
68. Barnado’s Cymru argued that the Government’s proposals would lead to confusion about the role of the Children’s Commissioner for Wales.107 To avoid that confusion it was essential that the Children’s Commissioner for Wales had the remit to represent fully every child and young person living in Wales.108 Barnado’s wished to see the Welsh Commissioner’s remit extended to include non-devolved matters so that the Commissioner could: x Comment formally on non-devolved matters and functions when they impact on children in Wales; x Report children and young people’s views on primary and potential primary legislation; x Represent the interests of children ordinarily resident in Wales, but receiving services or accommodated outside Wales; and x Consider and make appropriate representations on any matters which emerge as key concerns through consultation and other contact with children and young people in Wales.109
103 Ev 27 104 Ev 27 105 Ev 40 106 Ev 41
107 Ev 42 108 Ev 42 109 Ev 42
26 The Powers of the Children’s Commissioner for Wales
69. NSPCC Cymru/Wales believed that the creation of a situation where two Commissioners served children in Wales would “merely create more confusion and uncertainty among children and young people in Wales”.110 It argued that “The powers of the Commissioner should not be determined by Government departments or political settlements, as the problems and issues which children and young people face are not divided into devolved and non-devolved matters”.111
70. National Care Homes Cymru agreed that the proposals were likely to cause confusion for children and young people. Furthermore it concluded that the work already carried out by the Welsh Commissioner in raising the profile of his office and the development of a communications strategy would be “totally undermined if young people have to relate to a Commissioner in England on some issues”.112
71. In addition to children’s organisations, the Commissioners for Wales, Scotland and Northern Ireland were united in their belief that non-devolved matters should come within their remits. In a joint briefing letter, the Children’s Commissioners declared that a holistic view of children’s needs was necessary, not one that was dominated by the complicated government and legal structures arising from devolution. They concluded that “there is a case for giving each Commissioner a remit which covers all matters affecting children (whether devolved or non-devolved) in that country”.113 Professor Marshall, the Commissioner for Children and Young People in Scotland, told the Joint Committee on Human Rights that the best solution was to have “a commissioner in each of the jurisdictions who has the full range of powers to investigate anything about the lives of children within their jurisdiction”.114 Mr McNeany, representing the Northern Ireland Commissioner for Children and Young People, agreed.115
72. Peter Clarke, the Children’s Commissioner for Wales stated that the overriding principle should be one of consistency. He argued that “what the child needs is the simple consistency that if you are in Wales and you have an issue, you go to the Welsh Children’s Commissioner”.116 This view was reinforced in his written evidence:
“To limit the opportunities the Commissioner has to act to promote and safeguard the rights and welfare of Wales’ children and young people, according to the responsibilities of a political institution, is not only inequitable in terms of children’s rights, but is impractical. Restricting children’s rights by reference to government departments is artificial, inefficient and inappropriate, particularly post- devolution”.117
110 Ev 43 111 Ev 43 112 Ev 41 113 Ev 34 114 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, HC537-i, Q67
115 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, HC537-i, Q67 116 Q39 117 Ev 29
The Powers of the Children’s Commissioner for Wales 27
Professor Marshall, the Scottish Commissioner posed the question of whether “you fit the children into devolution, or whether you fit the government structures to meet the needs of children”. 118
The Government’s Position 73. We questioned Margaret Hodge on the Government’s reasons for not extending the role of the Commissioner for Wales to cover non-devolved matters. She argued that: “Quite simply that this was not a context in which we were seeking to extend the devolution of powers to Wales in this particular area”.119 She reinforced the position by stating that: “We think it is inappropriate in this area to give the Welsh Commissioner the powers he has on Welsh issues around non-devolved issues and that remains our position”.120
74. It was pointed out repeatedly that the Children’s Commissioner was an independent appointment and therefore not beholden to the devolution settlement. The Welsh Assembly Government noted “that the Welsh Commissioner is not the Assembly’s Commissioner but the Children’s Commissioner. That is why he was given oversight of the actions of the Assembly itself. This independence removes the necessity to follow the devolution-based separation of responsibilities”.121 Furthermore, Jane Hutt told us that she foresaw “no reason why there should be any tensions” resulting from the Welsh Commissioner taking on non-devolved matters.122 Save the Children Cymru noted that the Children’s Commissioner for Wales did not have executive powers to change policy and therefore should not be beholden to the devolution settlement.123
75. In its written evidence to the Committee, the Department argued that: “Whilst we have made every effort to develop legislation that is within the spirit of the devolution settlements, the Government does not expect children to understand the complexities of these arrangements. However, it also does not believe that the establishment of the proposed Commissioner will create any confusion for children or anyone else in Wales”.124 It appears that while the Department has conceded the fact that the devolution settlement will confuse young people, it then attempts to argue that those same children would not be confused by two Commissioners whose remits have been divided precisely along those lines. Peter Clarke voiced his unhappiness at this contradiction: “My anger and crossness about various elements of the Children Bill derives from that because I think this is going to make things more confusing for them, and goodness knows their lives as children are confusing enough as it is. I think that the Government and all of us should be working to make things as simple, as straightforward and as effective for children as possible. I do not think this Bill does it”.125
118 Minutes of Evidence taken by the Joint Committee on Human Rights, 20 April 2004, HC537-i, Q66 119 Q77 120 Q112 121 Ev 27 122 Q11
123 Ev 40 124 Ev 38 125 Q63
28 The Powers of the Children’s Commissioner for Wales
76. Margaret Hodge argued that “Adults who have to find their rights through a range of routes in relation to the devolution settlement manage to find their way through that. So will children”.126 However she also conceded that it “leaves us with what some may consider some untidiness, I just believe that is the world of devolution in the UK context”.127 While this is correct with respect to the devolved institutions, it does not need to apply to the Children’s Commissioner for Wales. That it does apply in this instance is not down to the devolution settlement, but down to the approach that the Government has taken. Margaret Hodge argued that it was “vital to keep looking at the relationship between the two Commissioners from the child’s perspective”.128 By simply using the devolution template for the establishment of the English Commissioner, the child’s perspective has been placed second to the perspective of Ministers.
77. The post-devolution landscape has been one of general accord between the National Assembly for Wales, the Welsh Assembly Government and the UK Government. The Children Bill has undermined that accord. The views of the National Assembly for Wales, the Welsh Assembly Government, the NGOs that work directly with children in Wales and the Commissioners for Wales, Scotland and Northern Ireland all concur that powers over non-devolved matters should be given to the Commissioners in Wales, Scotland and Northern Ireland. The Government has dug in its heels against that consensus. The Minister has hidden behind the false premise that the extension of the Commissioner’s powers is a direct part of the devolution settlement. While it may appear to be a convenient defence it is misguided and puts into question the Minister’s commitment to placing the needs of children over that of spurious bureaucratic expediency.
126 Q82 127 Q112 128 Ev 38
The Powers of the Children’s Commissioner for Wales 29
Conclusions and recommendations
1. We welcome the Government’s decision to transfer responsibility for CAFCASS to the National Assembly. (Paragraph 8)
2. Our experience of the Children’s Commissioner for Wales confirms to us that the power to launch investigations enhances rather than limits the effectiveness of a Commissioner. For that reason we welcome the amendments to the Bill to empower the Children’s Commissioner for England to instigate inquiries. However, we remain concerned that the Secretary of State would retain an unwanted influence over the Commissioner in respect of inquiries that could undermine the Commissioner’s independence. (Paragraph 21)
3. We welcome the fact that the Bill has been amended to state that the Children’s Commissioner for England must have, rather than may have, regard to the United Nations Convention on the Rights of the Child. We applaud the Government for bringing the English Commissioner’s obligations under the Convention in line with the obligations of the Commissioners for Wales, Scotland and Northern Ireland. (Paragraph 24)
4. We recommend strongly that the Government use the period before it introduces the Bill to the House of Commons as time for reflection. Both our inquiry and the debate in the House of Lords have highlighted the need for a better division of powers on non-devolved matters between the Children’s Commissioners for Wales and England. We recommend that the Children Bill be amended to confer on the Children’s Commissioner for Wales powers that cover all aspects of a child’s life in Wales. (Paragraph 26)
5. We conclude that the Government’s approach to devolution on this issue has fallen short of what we would expect. Its failure specifically to consult either children in Wales or the Children’s Commissioner for Wales in advance, undermines the devolution settlement. More seriously it reinforces the notion that Wales remains on the margins of the UK Government’s consciousness. Had the Minister consulted the Children’s Commissioner for Wales at an early stage, this could have been avoided. The Minister should reflect upon her error of judgement not to consult Welsh children on an issue that directly affects their lives. (Paragraph 35)
6. 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 with the way Peter Clarke, the Children’s Commissioner, has developed working relations 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. (Paragraph 42)
7. Should the proposed division of powers be accepted by Parliament, we would expect a statutory duty to be placed upon the English Commissioner to consult, and work jointly, with the Commissioners for the other parts of the United Kingdom upon an equal footing. Furthermore, we recommend that any such arrangements must not
30 The Powers of the Children’s Commissioner for Wales
impinge on the independence of the Children’s Commissioner for Wales. (Paragraph 48)
8. It is for the UK Government to decide upon the appropriate levels of support for children in England. However, it is our role to scrutinise such policies that have an impact on Wales. We remain unconvinced that the Government has assessed correctly the resources for the Children’s Commissioner for England in respect of his or her obligations to Wales. Therefore we recommend that the Government revisits its costing assumptions at the earliest opportunity. (Paragraph 52)
9. If the Government persists with its proposals, part of the resources allocated to the English Commissioner will need to be used to publicise his role in Wales and, where necessary, to act on behalf of children in Wales. Without a physical presence in Wales, the role of promoting the English Commissioner may have to fall on the Welsh Commissioner. This would be an inappropriate call on his resources. Therefore we recommend that the Government rethink its resource strategy to include a detailed assessment of the resources necessary for a physical presence in Wales. (Paragraph 56)
10. Access to services in the Welsh language is vital to the needs of Welsh-speaking children. Those children require access to documentation and services in Welsh from the office of the English Commissioner from the outset, not after a period of time. By passing responsibility for the implementation of a Welsh language scheme to the Children’s Commissioner for England, the Minister has washed her hands of her responsibilities towards Welsh children. If the Government refuses to rethink its proposals, we recommend that the Government open discussions with the Welsh Language Board immediately to ensure that Welsh language services will be provided by the office of the Children’s Commissioner for England on the first day of its operations. (Paragraph 63)
11. We continue to believe that the appropriate solution to the concerns raised about the division of powers between the Children’s Commissioners in the United Kingdom is to give the Commissioners for the four parts of the United Kingdom remits that cover fully the countries that they represent. Our inquiry has made clear that we are not alone in this view. (Paragraph 64)
12. The post-devolution landscape has been one of general accord between the National Assembly for Wales, the Welsh Assembly Government and the UK Government. The Children Bill has undermined that accord. The views of the National Assembly for Wales, the Welsh Assembly Government, the NGOs that work directly with children in Wales and the Commissioners for Wales, Scotland and Northern Ireland all concur that powers over non-devolved matters should be given to the Commissioners in Wales, Scotland and Northern Ireland. The Government has dug in its heels against that consensus. The Minister has hidden behind the false premise that the extension of the Commissioner’s powers is a direct part of the devolution settlement. While it may appear to be a convenient defence it is misguided and puts into question the Minister’s commitment to placing the needs of children over that of spurious bureaucratic expediency. (Paragraph 77)
The Powers of the Children’s Commissioner for Wales 31
Formal minutes
Wednesday 21 July 2004
Members present: Mr Martyn Jones, in the Chair Mr Martin Caton Julie Morgan Mr Huw Edwards Albert Owen Dr Hywel Francis Mrs Betty Williams
The Committee deliberated.
Draft Report (Powers of the Children’s Commissioner for Wales), proposed by the Chairman, brought up and read.
Ordered, That the Chairman’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 77 read and agreed to.
Summary agreed to.
Resolved, That the Report be the Fifth Report of the Committee to the House.
Ordered, That the Appendices to the Minutes of Evidence taken before the Committee be reported to the House.
[Adjourned till a time and date to be fixed by the Chairman.
32 The Powers of the Children’s Commissioner for Wales
Witnesses
Thursday 22 April 2004 Page
Jane Hutt AM, Minister for Health and Social Services, Chris Burdett, Acting Director, Children and Families Policy Directorate, Welsh Assembly Government Ev 1
Peter Clarke, Children’s Commissioner for Wales Ev 7
Tuesday 4 May 2004
The Rt. Hon. Margaret Hodge MBE MP, Minister for Children, Young People and Families Ev 14
List of written evidence
1 Welsh Assembly Government Ev 27 2 Children’s Commissioner for Wales Ev 28 3 Joint Statement from the Children’s Commissioner for Wales and Children’s Commissioner for Northern Ireland Ev 30 4 Children’s Commissioner for Wales Ev 31 5 Joint briefing from the Children’s Commissioner for Northern Ireland, Children’s Commissioner for Scotland and Children’s Commissioner for Wales Ev 33 6 Supplementary written evidence from the Children’s Commissioner for Wales Ev 34 7 Supplementary written evidence from the Children’s Commissioner for Wales Ev 35 8 Minister for Children, Young People and Families Ev 37 9 Supplementary written evidence from the Minister for Children, Young People and Families Ev 39 10 Save the Children Ev 36 11 NCH Cymru Ev 41 12 Barnardo’s Cymru Ev 41 13 NSPCC Cymru/Wales Ev 42 14 Welsh Language Board Ev 43 15 Chair, Health and Social Services Committee, National Assembly for Wales Ev 44
The Powers of the Children’s Commissioner for Wales 33
Reports from the Welsh Affairs Committee since 2001
The following reports have been produced by the Welsh Affairs Committee in the 2001 Parliament.
Session 2003–04 First Special Report Government Response to the Fifth Report of Session HC 87 2002–03, The Draft Public Audit (Wales) Bill Second Special Report Government Response to the First Report of Session HC 459 2003–04, The Empowerment of Children and Young People in Wales Third Special Report Government Response to the Third Report of Session HC 708 2003–04, The Provision of Rail Services in Wales First Report The Empowerment of Children and Young People in HC 177 i & ii England and Wales Second Report Work of the Committee in 2003 HC 178 Third Report The Provision of Rail Services in Wales HC 458 Fourth Report Draft Transport (Wales) Bill HC 759
Session 2002–03 First Special Report Government Response to the First Report of Session HC 413 2002-03, Broadband in Wales Second Special Report Government Response to the Second Report of HC 580 Session 2002–03, Transport in Wales Third Special Report Government Response to the Fourth Report of HC 989 Session 2002–03, The Primary Legislative Process as it affects Wales First Report Broadband in Wales HC 95 Second Report Transport in Wales HC 205 Third Report Work of the Committee in 2002 HC 263 Fourth Report The Primary Legislative Process as it affects Wales HC 79 Fifth Report Draft Public Audit (Wales) Bill HC 763 Minutes of Evidence The Wales Office Departmental Report 2003 HC 883 Oral and Written Changes in Customs and Excise Operations in Wales HC 916 Evidence
Session 2001–02 First Special Report Government Response to the First Report of Session HC 270 2000–01, Wales in the World Second Special Report Response of the National Assembly for Wales to the HC 311 First Report of Session 2000–01, Wales in the World
34 The Powers of the Children’s Commissioner for Wales
Third Special Report Response of the National Assembly for Wales to the HC 604 Third Report of Session 1999–2000, Social Exclusion in Wales Fourth Special Report Response of the Government and the Welsh Assembly HC 1169 Government to the Second Report of the Committee of Session 2001–02, objective 1: European Funding for Wales Fifth Special Report The draft National Health Service (Wales) Bill: HC 1215 Response of the Government to the Third Report of the Committee of Session 2001–02 First Report The Children’s Society in Wales HC 525 Second Report Objective 1 European Funding for Wales HC 520 Third Report The Draft National Health Service (Wales) Bill HC 959 Fourth Report The Children’s Society in Wales: Responses from the HC 989 Government and The Charity Commission to the First Report of the Committee of Session 2001–02 Minutes of Evidence The Wales Office Departmental Report 2002: HC 1216
962423PAG1 Page Type [SO] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 1 Oral evidence
Taken before the Welsh Affairs Committee
on Thursday 22 April 2004
Members present
Mr Martyn Jones, in the Chair
Mr Martin Caton Hywel Williams Dr Hywel Francis Mr Roger Williams Julie Morgan
Written evidence from Jane Hutt AM, Minister for Health and Social Services, Welsh Assembly Government is on page Ev 27
Witnesses: Jane Hutt AM, Minister for Health and Social Services, Welsh Assembly Government, and Mr Chris Burdett, Acting Director, Children and Families Policy Directorate, Welsh Assembly Government, examined.
Q1 Chairman: Good morning, I wonder if, before we Jane Hutt: Through, as I said, a lengthy exchange of start, you could introduce your colleague. correspondence and meetings, and also follow-up by Jane Hutt: Thank you very much, Chairman. This is my oYcials as well. So it was fully aired. Chris Burdett, who is the head of Children and Families in the Welsh Assembly Government. I am Jane Hutt, the Minister for Health and Social Q4 Chairman: I am sure. You are also aware that we, Services. as a committee, wanted extra powers for the Welsh commissioner: we put that into our report and that Q2 Chairman: You are aware of our concerns as a was rejected. It seems that your consultation with committee; I know that you have read our report on the UK Government has also failed in that regard. Children and Young People which was recently Do you know what reasons were given by the UK published. Although we welcomed very much an Government for not responding to the Welsh England Commissioner, we thought there may well Assembly’s concerns and initiative on extra powers. be problems, and, given that we have now seen the Jane Hutt: I do think this is a question for the UK plans, it does seem to us at any rate that there may be Government and for Margaret Hodge rather than considerable diYculties. To put it in one way—and it for me. may not be the right way—we do see that there might be a diminution of the powers of our commissioner in Wales if the current proposals from Q5 Chairman: Did they not give you any reason? the UK Government are followed through. If I Jane Hutt: I think my memorandum, which could ask you the first question in relation to that: In hopefully you have seen, does lay out clearly the V what way were you, as the Minister involved, and the issues relating to the di erence of our commissioner Welsh Assembly Government as a whole consulted in Wales from the commissioner that is proposed in on those clauses which establish a Children’s the Children Bill for England. I think the most Commissioner for England in the Children Bill? important thing coming through that, as I have said Jane Hutt: Both I and my oYcials were kept in very in my written memorandum, is that we try to look close touch during the process of drafting the Bill for ways in which we can establish consistency, given during the latter part of last year and the early part that there are diVerences in the roles and functions of this year. I reported to the Assembly on the of our commissioners; that the most important thing contents of the Bill in a written statement on 31 is for us all to look at children and young people in March and it is the subject of a debate on 4 May. I Wales and to say for them: “How can we ensure that have had a lengthy exchange of correspondence and we preserve the independence of the commissioner telephone calls and meetings with Margaret Hodge and enable children and young people to have one on the powers of the Children’s Commissioner and single point of reference in terms of seeking to make this has been supported by discussions between their views known or raising issues with the oYcials as well. commissioner?” Clearly it is for the UK Government to answer on why they did not respond Q3 Chairman: In the memorandum which you to our recommendations and discussions, and kindly gave to the Committee you note that the indeed yours, but I think we need to move on to look National Assembly agreed unanimously that wider at how can we secure and agree in principle this powers should be conferred upon the Children’s important expectation that I certainly want to have, Commissioner for Wales. How did you articulate that there should be a single initial point of reference this with the UK Government? for children and young people in Wales. 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 2 Welsh Affairs Committee: Evidence
22 April 2004 Jane Hutt AM and Mr Chris Burdett
Q6 Chairman: You can be certain we will be asking Jane Hutt: I appreciate that point. I think we must Margaret Hodge about that. We are planning to agree in principle and then move on to more detailed meet her on May 4. I am still a little bit vague, discussions about how we would deliver that. It is though, Minister, about the response that you have interesting, I think, that in the response to your had. Essentially, do you not think you have been report the UK Government did say that they would given the right responses? I am trying to establish expect the Children’s Commissioner to collaborate from you whether the UK Government have given with other commissioners to draw up detailed you suYcient reasons. Both we, as a committee of arrangements for eVective working on behalf of UK members here, and you, as a representative of the children; for example, through the development of Welsh Assembly Government, want to go down that memorandums of understanding. I think the path and it seems they do not themselves. I am important point there has to be to enable the surprised that they have not given you reasons, or, if Children’s Commissioners, and particularly our they have, they are not suYcient. Welsh commissioner—and you will obviously be Jane Hutt: It does clearly go back to their talking to him later on—to scrutinise, for him to be perspective of their role that is envisaged in the able to identify what these arrangements should be, Children Bill in terms of the commissioner for and we should then ensure that that is backed in England. Again, I would say it is for Margaret terms of a memorandum, which actually could be Hodge to answer to you, in terms of why they were through protocol, and we do have many such not accepting that we felt the most important, arrangements in relation to the implementation of powerful reason for this, for our concerns and legislation. To preserve the independence of the indeed your concerns, was to ensure that children in commissioner, it is quite clear that he, in this case Wales were not confused. At present, if the with Peter Clarke, must be fully engaged from now Children’s Commissioner wishes to raise issues of a on, if we can agree this principle about the way reserved nature, he can raise them via the Assembly forward, in developing those detailed arrangements. and, in fact, via me as minister, and we can raise It does go back to the point that we have to them with the UK Government, so that matter is ensure we have the most robust arrangements for clear in terms of his role and the legislation that we children in Wales, but, as you say, respecting have now. You obviously need to ask the questions the independence of our Welsh Children’s of the UK Government but we also need to move Commissioner in response to those, and he has to be forward in terms of how do we secure for children proactive in developing those detailed arrangements and young people in Wales via a single point of to preserve his independence. reference that important clarity, that we have a Welsh Children’s Commissioner serving children and young people. That is something on which I am Q9 Mr Caton: Thank you. That is something on certainly working with my colleague Don Tuig in the which our inquiry is going to focus. At present the Wales OYce to try to secure; indeed, I have powers of the Children’s Commissioner for Wales mentioned this in my memorandum to you. correspond to the powers transferred to Wales under the devolution settlement. In your memorandum you note that “the Welsh commissioner is not the Q7 Julie Morgan: On a point of information really, Assembly’s commissioner but the children’s and probably something we will ask the Children’s commissioner” and that “this independence Commissioner as well: How often have non- removes the necessity to follow the devolution-based devolved matters been referred to you by the separation of responsibilities.” As an independent Children’s Commissioner? position, what barriers are there to extending those Jane Hutt: In fact, we have not had any issues that powers to include reserved matters? have been raised in a formal way. Jane Hutt: I have already described where we are at the moment, if you like, in terms of the Q8 Mr Caton: I would like to ask you some commissioner being able to raise issues of a non- questions about the powers of the commissioner for devolved nature through the Assembly which we can Wales in a moment, Minister, but, first, taking up then raise with the UK Government, and we have from what you have just said and referring to identified the diVerent bases of the Children’s paragraph 11 in your submission, where you seem to Commissioner in Wales, which is very much rights- be putting forward a second-best option to ensure based, in respect of the UN Convention on the that you get a single point of reference, that the Rights of the Child, the rights-based approach Welsh commissioner could act under delegated which has been the core and the principle behind our powers of the UK commissioner in Wales, do you Children’s Commissioner. Clearly, in terms of not see a problem with that approach and the taking things forward, extension of full powers on possibility of undermining the independence of the non-devolved matters would require primary Welsh commissioner, especially if the Bill carries on legislation, but I think the key issue in terms of as it is, in that on certain inquiries it will be the barriers is that we see the independence of the Secretary of State that asks the English or UK Children’s Commissioner as being fundamental in commissioner to investigate something? With the Wales. It is a rights-based commissioner. Again, I go sort of approach you seem to be putting out in back to the point of how can we ensure there is this paragraph 11, that would mean that the UK one-stop shop, this single point of reference for Government was eVectively instructing the Welsh children in Wales, and that we should work to commissioner on how to use his time. achieve that. 9624232001 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Jane Hutt AM and Mr Chris Burdett
Q10 Mr Caton: Would an extension of the and not for the Secretary of State. That is of course Children’s Commissioner for Wales’ remit need where we would want to clarify this through amendments to the Government of Wales Act or protocols and the memorandum of understanding. I could it be done through the Children Bill? think also you can look at this from a wider Jane Hutt: I think we would have to look and you perspective: the Welsh Children’s Commissioner is would have to look at the details in terms of how that not an Assembly commissioner; indeed, he is would come about. Again, I think we have to look at independent and he is the Children’s Commissioner. the other possibilities that are before us. I have Although we fund the post, we value and protect already mentioned the fact that this could be that independence, but of course the Children’s through protocols, memorandums of Commissioner reports to the Assembly. Indeed, it understanding, but clearly now this legislation, the has been very interesting in his role and the influence Children Bill, is in this Place and you will have to he has had as an independent commissioner, that he consider how to take it forward. I do think we have has made an impact on policy. One of the interesting to go back to the facts. In terms of the practicalities, things about the Children’s Commissioner in Wales it is that important principle of how children in is that actually, although he is able to take up cases Wales are going to relate to a Welsh Children’s and receive inquiries for children and young people, Commissioner and know that there is a Welsh and obviously that is part of his oYce, the bulk of his Children’s Commissioner who is going to be able to influence has been on policy development locally take up issues on their behalves, whether it is and nationally, and very clear examples are coming devolved or non-devolved. Then we should look at through. For example, in the Child and Adolescent issues in terms of technicalities of how we can Mental Health Services in Wales, as a direct result of deliver that. his influence we have made major changes and increased the funding. That is something I have Q11 Mr Caton: If the powers of the Children’s welcomed from the independent Children’s Commissioner for Wales were extended to cover Commissioner for Wales. reserved matters, do you foresee it creating any unwanted tensions between Westminster and Q13 Mr Caton: From the discussions with the Wales? Department of Education on this subject, do you Jane Hutt: I see no reason there should be any feel they are aware of what the Children’s tensions at all. There are concerns that children and Commissioner is doing—particularly this policy young people would be broadly very confused if they review role rather than just the ombudsman part of do not have this single point of reference. They are his work? already aware we have had a commissioner for three Jane Hutt: Obviously, again, you will have to ask the years—it has been a very high profile post. I think UK Government and the Minister Margaret Hodge children and young people in Wales do not about their understanding of our commissioner. I diVerentiate between the services they might receive, know that our commissioner has had a significant for example, through social services or through the influence on the development of commissioners in youth justice system, but clearly we want to be sure the other devolved administrations. To see the that they have one point of reference. I do not see impact of all the elements of his role, which are why there should be tension. Clearly the point is that considerable in terms of the impacts that it can make there are diVerences between the commissioner that and has made in Wales, I hope very much that the we have in Wales in terms of status and principle and UK Government has looked at our commissioner basis and the one proposed in the Children Bill, and and at what he has delivered over the past three we will have to and they will have to work together, years. But that is for you to ask them. hopefully with our backing and support from the Mr Caton: Thank you. Welsh Assembly Government and the Welsh OYce, to secure clarity for children. It should not create Q14 Chairman: If I may finish oV this line of tensions if that was clearly located just in the Welsh Y questioning, have you actually conceded defeat on commissioner’s o ce. getting an extension of Children’s Commissioner for Wales in the Children Bill? Q12 Mr Caton: Sticking with the scenario that Jane Hutt: Clearly, in working with my colleague in certainly this Committee would like to see, that we the Wales OYce, we have been seeking ways in actually extend the powers of our present Welsh which we could provide that one-stop shop, that commissioner to non-devolved matters, who would consistency of approach. For me—and I will speak the Children’s Commissioner for Wales report to if as well on behalf of the Wales OYce Minister—the he was to hold inquiries into non-devolved matters? most crucial aim that we have is to have a single Jane Hutt: Again—and I am sure you would want to point of reference for children in Wales. I have ask your questions of the Children’s already described my exchanges and meetings and Commissioner—we would have to look at the role my representations on this matter, and we need to and the independence of the Commissioner. Because move forward. It is now in this Place and you are we have a diVerent arrangement, because the going to take this forward in terms of the evidence Children’s Commissioner is a commissioner for that you receive with this inquiry. I hope very much children and not the Assembly’s commissioner, we that we can secure this principle. That is what would have to ensure—and I am sure he would want children and young people in Wales want to hear. to speak on this—that he was there for the children Do they have a Welsh Commissioner for children 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 4 Welsh Affairs Committee: Evidence
22 April 2004 Jane Hutt AM and Mr Chris Burdett and young people who is independent and who can had named it something diVerent because we could take up issues? We need to find the right routes to then understand the diVerences. But I just wondered that. I would suggest that is something on which this if you had any views on that. inquiry, in the evidence you are taking, has to Jane Hutt: We go back to our original evidence base concentrate: What are the routes to deliver this? in the inquiries following the Waterhouse Report reform and the recommendation for the appointment of a children’s commissioner in Q15 Julie Morgan: If the bill is not amended during Wales—and, indeed, back in 2001 with the Social its process, do you think there is a realistic possibility Services Committee report on what we would seek of coming up with an arrangement via a for our Children’s Commissioner, and then memorandum, as you have suggested, that will be amending the Care Standards Act and then our own able to take into account all the key issues: the first Children’s Commissioner Act. We have developed a point of contact for children, the independence of model for our commissioner, which of course has the commissioner and all those other key elements? been tested out in the past three years, with a strong Jane Hutt: I certainly hope so. Obviously this is new basis on the UN Convention on the Rights of the ground and territory for us because we have not had Child. That rights-focused base has been really the a commissioner—indeed, this was an opportunity in response we felt to the evidence we took, and, indeed terms of legislation. But we are committed to taking to the very initial stimulation and recommendations this forward and we do need to look at what kind of of the Waterhouse Report. I would feel that we have detail there should be in such arrangements in terms to look to our commissioner to protect his of eVective working. I think the independence of the independence and the independence of the post and commissioner is key to this, in terms of his role, and ensure that that is not undermined by new the discussions need to start now. There is an arrangements which are coming through the UK agreement in principle that this is the way forward Government through the Children Bill, and make but obviously that will emerge out of your inquiry sure—as I have said, he has already had influence I and parliamentary discussions. We already have think on the development of the other precedents—indeed, there are precedents to which commissioners in the devolved administration— we can look and I am sure share with you in relation that they can work together. But I think it is diYcult to protocols/ memorandum—but this is unique, and for me to comment on the role of the English preserving the independence I think is going to be commissioner, except to look at what I see in the bill the key question for the commissioner. It does go in relation to what we have in Wales and ensure that back to the point the Chairman made earlier about our Welsh commissioner can not only deliver his job the diVering role: basically, in terms of the clarity of but perhaps strengthen it through better what our commissioner would be doing on behalf of arrangements. an English commissioner, I think that is the nub of the question in terms of what would this mean for Q17 Julie Morgan: I think the Children Bill as the commissioner working on behalf of children. I drafted says that the new commissioner has think that is the sort of thing that will now need to responsibility for promoting the views and interests be explored very carefully with the commissioner. of children in the United Kingdom and that he or she We should see this as a commissioner’s would have to take account of the views of and work memorandum of understanding but ensure that our undertaken by the other commissioners. We have commissioner has the confidence that what he already touched on this in the discussion already, secures through that is going to deliver that but do you have any other comments about how that independence and indeed that clarity for children could work in practice? The Children’s and young people. Commissioner in England would obviously report to the Secretary of State in England, would you see yourself as having any role in that situation? Q16 Julie Morgan: We are talking a lot about the Jane Hutt: Again, I think if the point of principle is cooperation between the English Children’s accepted, that children and young people in Wales Commissioner and the Welsh Children’s should relate to a Welsh Children’s Commissioner, Commissioner but there will be four then all of the mechanisms which our commissioner Commissioners. You have mentioned that there is has been developing in terms of consultation with the Scottish Children’s Commissioner starting work children, open door for children and young people— on Monday and already a Northern Ireland and we have other mechanisms in Wales, through, Children’s Commissioner, and the model that the for example, Funky Dragon. Much of your report three devolved countries have has very much relates to participation, and of course the Children’s followed the model of our Children’s Commissioner Commissioner is on the agenda of every aspect really in Wales. In fact, the English Children’s of children and young people’s participation. When Commissioner is going to be diVerent, certainly in we looked at how will we deliver this Wales- based terms of the rights-based approach and in many focus, this one point of reference for children and other respects, from the Children’s Commissioner in young people, basically we secured that around Wales. It just seems to me that the English giving views. In relation to the UK/English Children’s Commissioner is not a Children’s Children’s Commissioner, the English Children’s Commissioner in the sense that we know it, and that Commissioner is not to report on the views of it might have been perhaps better if the Department children in Wales on devolved subjects, but we feel 9624232001 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Jane Hutt AM and Mr Chris Burdett that should apply to all issues and matters which problems and thence, if appropriate, to the Secretary may not be devolved and obviously that would have of State for that reserved function. That is the detail to be a matter for, again, this memorandum of and the discussion that now needs to take place for understanding that we hope to develop. us to clarify and to move forward, to have these robust arrangements in relation to children and Q18 Julie Morgan: You would hope that the young people. memorandum of understanding would also cover the fact that the bill limits the commissioner of Q20 Mr Williams: I think you have already told us England to undertake an inquiry initiated by the that the commissioner in Wales has not actually used Secretary of State. If this was about a Welsh child, you as a point of contact on reserved matters. Do presumably you would hope that this memorandum you think it would compromise the independence of would take into account any role that you could the commissioner, the fact that he cannot actually have in that situation. relate directly with the Secretary of State and has to Jane Hutt: Definitely, because I think the issue is do it through the Assembly? that we have to look at it from a child’s perspective. Jane Hutt: As I responded earlier, there has not been A child should not have to deal with more than one an issue where it has been raised via myself, but, commissioner, wherever he or she happens to find indeed, the Welsh commissioner can raise issues and the need to seek information, support, advice. That he produces reports which are widely circulated and really has to go back to the principle of what we I would hope the wider policy community, including should be seeking through the legislation and the governmental machinery, would be taking an through arrangements that emerge from legislation. interest in what our Welsh commissioner is saying The child should deal with one commissioner in on matters of policy because it is of a wider interest Wales. I think that has to be reflected in the way we than just to Welsh children. But I think this is a take forward these more detailed discussions, I hope matter where, again, we would want to make sure around a memorandum of understanding. I think that the Welsh commissioner was able to have the that is in the spirit of the Children Bill. I would like clout, if you like, on behalf of Welsh children to to say how we warmly welcome the Children Bill. know that something was being considered fully by We have been so fully engaged in it because it is the Secretary of State in the UK Government as it about safeguarding children. Indeed, the fact that we would be by the Welsh Assembly Government. But are also going to have responsibility for CAFCASS you have to remember of course that the Welsh is very important in terms of the Child and Family commissioner actually can hold us to account and to Court Service. We are going to see a much more task as well as a Welsh Assembly Government, and holistic service for children, safeguarding children, that is the measure of his independence. Certainly he as a result of a Children Bill which has strong Welsh has held me to task in terms of the policy functions clauses and I think this is the spirit in which we must for which I am responsible. We value that kind of try now to move forward in enabling and ensuring independence. that children in Wales have one point of contact, Chairman: Thank you. As a Committee we are with one Children’s Commissioner, our Welsh worried about the independence. Children’s Commissioner. Q21 Dr Francis: Good morning. If we could continue Q19 Mr Williams: Moving on from that point really, this theme of support for children: the Welsh you are saying that there should only be one point of Assembly Government has placed a strong emphasis contact and that is with the Welsh Commissioner. on shaping policy around the UN Convention on the But if we are dealing wit reserved matters, how Rights of the Child and the Commissioner for Wales would that then work? is under a duty to take account of the Convention. On Jane Hutt: At the moment, as you know, the Welsh a number of occasions when he has given evidence to Children’s Commissioner can raise issues of a non- us he has placed great emphasis on that. Any English devolved nature through the Assembly, through my Commissioner would have a much weaker duty. In oYce and that I can then raise with the UK your view, what eVect would this have on children in Government in terms of the Secretary of State. And Wales and your own policy aspirations as an this continues. This will not change as a result of this. Assembly Government? Because we have the Children Bill and the issues Jane Hutt: As you say, in exercising his function the relating to the English Children’s Commissioner and Welsh commissioner must have regard to the UN their role, which is expressed in the bill in relation to Convention on the Rights of the Child, and the bill reserved issues, then we have to move forward in the indicates that the English commissioner may have way that I have described to ensure that it is the regard to the Convention. It does not in any way Welsh Children’s Commissioner who is the point of reduce the requirement on the Welsh commissioner, contact in relation to reserved matters. It is diYcult of course: he must have regard in all his dealings and for me to go into practicalities, but, for example, if a workings with children and with government and I child is engaged with the youth justice system, then would not expect it to present any practical we would hope that the child or young person would diYculties. Certainly this is the key principle of our be able to relate to the Welsh Children’s foundation of independence and, indeed, the Commissioner. But obviously the Welsh Children’s functions of the Welsh commissioner, that he must Commissioner then would be relating to the English have regard, and we would obviously want to see Children’s Commissioner in relation to the issues or that played out in terms of future relationships. 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 6 Welsh Affairs Committee: Evidence
22 April 2004 Jane Hutt AM and Mr Chris Burdett
Q22 Dr Francis: In the development of commissioners presence in Wales. Without a physical presence, how of this kind, we have seen what has happened in the would the commissioner’s work be publicised in devolved bodies and even across Europe, would you Wales? say that what is envisaged in England is totally Jane Hutt: Again, it goes back to the previous point. exceptional? I think it would be very confusing if we had another Jane Hutt: I think you would have to ask that oYce in Wales. I do not think we should have an question of the Children’s Commissioner, who is English Children’s Commissioner oYce in Wales. If perhaps more familiar with developments beyond we can secure the clarity, the one point of contact, the UK. Obviously I am aware of the developments then we have one oYce in Wales and I think that in the other devolved administrations and, indeed, should be our line of thinking. we took evidence from other parts of the world when we were presenting our report, but again I think it is Q25 Hywel Williams: Are you aware of any a question for the UK Government, how they resources being set aside for the employment of envisage the English commissioner playing their Welsh speakers in the oYce of the Children’s role. Commissioner for England? What impact would it have in Wales should bilingual staV not be employed? Q23 Hywel Williams: Good morning, Minister. May Jane Hutt: Again this is a matter for UK I pursue the line of questioning my fellow members Government ministers in relation to the bill as it have been following for a moment. You put great stands. Again—it is the same answer—I would hope emphasis on clarity, which I think is very admirable. that we would have a fully bilingual Welsh language Looking at it from the point of view of the child, if scheme. It is a Welsh oYce that we have in Wales and a certain course of action is followed with this bill the that is what we want to endorse and embrace. I think child will be interacting with the commissioner in you need to ask UK ministers about those issues. Wales who will at turns be independent and not independent; will have full powers and limited powers; will be working with a clear remit and also Q26 Chairman: I find it hard to understand how the working under a memorandum of understanding. Children’s Commissioner in Wales could be what You said earlier on that children do not diVerentiate. you call a one-stop shop, the point of contact for I think that is quite acceptable but are we not in a both devolved and reserved matters when the danger of misleading children as to the basis of their Children’s Commissioner in Wales is not going to have full authority to act on those matters which are interaction with the commissioner because, to use a reserved to the UK Government. I can see that if we metaphor, the commissioner will be wearing two cannot get what we want as a Committee and what hats, both of which are invisible to the children. you want as a Welsh Assembly Government, that we Jane Hutt: I appreciate that point but we have to are going to have to do something like that, but it ensure that there is one point of contact and does seem to me to be very diYcult to understand communication. I have been saying that it is about how that is going to work in practice. I do not know clarity and consistency, and you can get a measure if you have put any thought to that, Minister. of clarity and consistency through ensuring there is Jane Hutt: Hopefully we are now on a route to Y one point of contact: one o ce, one phone number, working through this in detail in terms of the one person. I think we have to look at it through the practicalities in the way that I have discussed. We eyes of children and young people. The Children’s must remember, as I said in my memorandum in Commissioner OYce has been promoted extensively paragraph 8, the proposed role of the UK in Wales. Obviously not everyone knows about it, commissioner does not take anything away from the nor every child and young person, but it is one point role of the Welsh commissioner. That is a very of contact: one oYce, one person, and that is what strong message because our commissioner will be we should all be looking for in terms of the clarity of able to make representations to the Assembly about how we are then going to respond to the concerns of any matter aVecting the rights and welfare of that young person, but also, of course, in terms of children in Wales, including non-devolved issues. wider policy issues as well. As we have already seen Obviously, as I said in my memorandum, we did over the last three years, it is the everyday things in regard the bill as an opportunity to extend the Welsh people’s lives for which we are responsible in the commissioner’s more formal powers—and our Assembly that have mainly been on the agenda. views on this are a matter of record—but it does go back to the fact that if we can now work towards ensuring that children and young people are clear Q24 Hywel Williams: If I could just say, there is a about lines of communication to the Welsh general view that we support the commissioner’s Children’s Commissioner on all matters aVecting position as being independent, with full powers and them, which does go back to the earlier questions, a clear remit, I think in all aspects of his work in then that is what we should be moving forward. That Wales with children. If I may turn to a couple of is the principle that we should be seeking. Indeed, points of detail—and I appreciate that you were that is what I working with my colleague in the saying some of the detail is going to be worked out— Wales OYce to secure and I very much welcome in the Second Reading debate in the House of Lords, your inquiry because it will help move this forward Baroness Ashton said that the Children’s in the context of what is a very important bill for Commissioner in England would have no physical children in Wales in terms of all of its provisions. 9624232001 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Jane Hutt AM and Mr Chris Burdett
Q27 Chairman: I think there is a view that what we Government that they recognise that detailed are referring to as the England commissioner does arrangements for eVective working on behalf of have a kind of UK role in those reserved areas to the children should be developed and I think that has to UK Government but does not have the be the nub to take forward in terms of seeking the independence to initiate inquiries without the views of the UK Government. That is certainly what agreement of the UK minister, the Secretary of I am taking forward. State. If we have a one-stop shop which is essentially our commissioner in Wales, then that could Q28 Mr Caton: On the practicalities, we understand potentially limit the powers of the Welsh that only £2.5 million has been allocated for the commissioner and he would be acting with the kind whole funding of the new commission, both as of umbrella constraint of this UK remit, of what we Children’s Commissioner for England and with this are laughingly calling the “England commissioner”. UK remit. Do you think that is going to be anywhere I think there is a serious danger—and I am sure my near enough to do the job properly? colleagues do, because we even foresaw it, I think, in Jane Hutt: In terms of our commissioner, I think we our last report on Children and Young People—and started oV with a budget of about £900,000 and, as I am concerned, that you are perhaps not getting of this financial year, it is now up to £1.5 million. In your way in the way we want for the powers of our terms of delivering the service and the rights-based commissioner in Wales, from the UK Government. focus for children, we have recognised that that I wondered if you had any view of this potential funding is needed. So it is a substantial increase from overarching diminution of the power of the when we first set the funding base and approved the commissioner that explained it. budget for the Children’s Commissioner. That is Jane Hutt: I hope I have tried to assure you from my what we need in Wales. perspective that nothing has been taken away by the Children Bill and its provisions from the powers and Q29 Mr Caton: I can take from that that you predict role of the commissioner in Wales in terms of how this sum will increase considerably. the oYce is operated and, indeed, how it is Jane Hutt: You can obviously ask your questions of developing. But I think we have to go back now— the UK Government on that matter. and this will be for your discussions certainly when Mr Caton: Thank you, Minister. you take evidence from the UK Minister—to how Chairman: You can be assured we will be asking this is going to be delivered. In the response to your questions, as I said earlier. Thank you very much, report, again it is made quite clear from the UK Minister, for coming and answering our questions.
Written evidence from Peter Clarke, the Children’s Commissioner for Wales is printed on page Ev 28
Witness: Mr Peter Clarke, Children’s Commissioner for Wales, examined.
Q30 Chairman: Welcome, Mr Clarke. I saw you deliberations today, just the extent of your powers sitting in on the previous witness session, but I do and the extent of your independence. If you could not know if you were here at the start so perhaps I run through that for us, that would be very useful. can set the scene again. We do not need Mr Clarke: I shall try to do justice to that. I will try introductions because you have appeared before to describe my powers, particularly those that I see when we did our Children and Young People are in contradistinction to what is being proposed in inquiry. Our concern as a committee in that inquiry, the Children Bill. First, my full independence: I when the proposals for an England Children’s cannot be instructed by any minister to carry out an Commissioner were going to be drafted by the UK investigation. That is a key diVerence between what Government, was as to how it would impinge on is being proposed in the Children Bill for a your role. I think it is also fair to say as a committee commissioner for England, with its UK parts, and that we are extremely worried by the proposals as my own oYce. I consider that to be absolutely they stand at the moment. As you have also heard, fundamental to the independence of the post, and I we will be seeing the UK Government Minister and am sure it would be seen as such too by the European we will be raising most strongly your concerns. Network of Ombudsmen for Children. I think it is Really your role here today is to tell us what your just so fundamental that I am surprised it is a model concerns are in the strongest possible terms you can that is being put forward. There is a consequent manage. As part of that, perhaps you can outline concern I have about any memorandum of your powers now. One of the things that is quite understanding or protocol that might be arranged so clear from what we have read at the moment, is that that there is a single one-stop shop in Wales for essentially the powers of what we are calling the children and young people, though that is obviously “England commissioner”, but what appears to be my ambition. The other powers I have are primarily the UK commissioner in all reserved matters, are those powers to review. Again on my own volition, significantly less than yours and significantly less without instruction, picking up from the issues as independent. I think it might be useful, not so much children and young people see them, I have the for the Committee, because I think we know, but for power to conduct, to refuse and to require the Minister who will undoubtedly be reading our information; and they can be about policy or 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Mr Peter Clarke practice or issues, indeed, that no one else has yet How much of your time has that taken? How does identified but the children themselves have in their that fit in with the other reviews and diVerent things daily lives. I can require the provision of information that you do? in those circumstances. It seems to me from my Mr Clarke: Personally, I believe this power is a really reading of the bill that the English/UK important part of what I can oVer the children and commissioner could undertake research, but they young people of Wales. Indeed, I think it is diYcult only have powers to get information when they are to argue to them directly, particularly face to face, actually under the instruction of the Secretary of that you are there are their champion and then in the State for Education to do an inquiry. That is my next breath say you cannot help them as an reading of the bill at least. I also have the power to individual. Personally, I would find that diYcult. I make recommendations. You will know—and I think it would undermine my credibility in their eyes. think the Minister alluded to it—that I have done so We have actually had 500 cases come to us; many of on several occasions. Those recommendations then them are referred by parents, but nonetheless they need a response from the people they are aimed at. are children’s issues. This helps to inform me of the I have the power to monitor the implementation of issues that children are actually finding out there. It those recommendations—and, indeed, to say, if helps, therefore, for the children to set my agenda. necessary, quite rude things about people if they Just by way of example, in the first year of my have not complied with them. I see no such operation we had a very high percentage of calls and provisions within the act of what is being proposed individual referrals about special needs educational in England. Those are the key powers that I do have provision within Wales and therefore I was able to and the English commissioner I do not think will highlight it in my annual report. I would probably have if it goes forward as anticipated in the bill. But not have had such a clear view of how important that my major concern—and I know it is one that has issue was and the extent of the impact it was having already informed the questions you have asked this on quite a number of young people’s lives in Wales morning—is the relationship between this new post if I had not been involved in individual cases and and my own post, particularly taking the child and they had come to me in that way. young person’s perspective but also, additionally, the impact it might have on work and relationships Q35 Julie Morgan: So you do not find any conflict I have already established in non-devolved areas in between seeing individual children and taking my work in Wales in the last three years. strategic recommendations? Mr Clarke: Certainly no conflict in principle. When Q31 Julie Morgan: These are follow-up questions on the act was set up that established my post, it was the information really. Is there any other intention that I could both review systems of local commissioner—or perhaps they would be called complaint and I should refer children to them in the ombudsman—in places in Europe that could be normal course of events. Indeed, that is what we do. directed by a minister to carry out an inquiry? Of course in these early stages we have only been Mr Clarke: I am having to pause. I cannot think of able to do very small areas by which children can one. The problem I have in answering the question make complaints, so at the moment I suspect we are is that when I joined the European Network some going to have to carry a bigger case load than we will three years ago there were 12 members and there are in the future, when those systems are better now 40: it is growing very rapidly, particularly in the developed and we can refer to them with more former Soviet countries. It may just be that there is confidence. We have had to balance our workload in a model of that sort but I am certainly not aware that regard. Indeed, I have just appointed a manager of one. for that service because it has become clearer now after two or three years’ operation just what the scale Q32 Julie Morgan: Would it be possible for you to of interest is at the moment. We are also likely to give us that information? make it more distinct between the children’s direct 1 Mr Clarke: Most certainly, yes . contact, ringing us on a separate number, and others who are ringing on their behalf. So there are Q33 Julie Morgan: I think that would be very useful challenges in the amount of work that brings in, but when we have our discussions with the English personally I would not want to lose it. I think it is Minister. crucially important, particularly for those two main Mr Clarke: I am aware that the model being reasons: the credibility of the oYce in children’s eyes proposed has caused suYcient concern for the and the capacity it gives me to pick up on the actual European Network that I believe they have written issues that individual children are facing. a letter about it—and I can certainly give you a copy of that letter also. Q36 Julie Morgan: And you would refer them back to the local system of complaint where they exist? Q34 Julie Morgan: That would be very interesting. Mr Clarke: Yes. You have the powers to carry out inquiries and you have the power to take up individual cases which the English/UK commissioner does not have. How Q37 Julie Morgan: Where they are up and running many requests have you had to take up inquiries? properly. Mr Clarke: Indeed so. And if there is a local 1 Not printed, to be published by the Joint Committee on advocacy project, we would make a twin referral to Human Rights. the two at the same time. But we have never wanted 9624232001 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Mr Peter Clarke to turn a child away and just say “Go to someone whereas I could demand documents from every else,” so we always track what is happening and other party. I think that is an important matter encourage them to keep in touch with us. I think that because, of course, the police are full members of the will go on—for as long as I am in post, certainly. Area Child Protection Committees in Wales and I think anyone would see ACPCs, as they are Q38 Julie Morgan: Of those 500, many would be normally referred to, as being central to the concerns being investigated or followed up at a local level? of any credible Children’s Commissioner. Mr Clarke: The majority. Julie Morgan: The majority. Thank you very much. Q41 Chairman: You have just highlighted one problem, Mr Clarke. As you know, our Q39 Mr Caton: In its response to our report on the recommendation was to have those powers given to Empowerment of Children and Young People in you under both reserved and non-reserved powers Wales, the Government—and it did this to justify its within Wales and, in fact, extending them into refusal to extend your responsibilities into non- England where there are Welsh children who are in devolved matters—said “The Government’s priority custody or in that situation. You have highlighted has been to establish arrangements that work fairly one point but are there other practical or statutory and equally for children ion a UK-wide basis.” diYculties in giving you those powers? From how you have just described the proposals for Mr Clarke: I am aware of none. I understand that the Children’s Commissioner, that is exactly the legal advice was taken at some point in the opposite from what they will achieve in this bill. Is establishment of my oYce which reinforces the belief that fair to say? I have that I do not believe that the Government of Mr Clarke: That is my view, yes. Certainly. I have Wales Act would need amendment in order to give heard the word “consistency” used but this me powers extended over these non-devolved consistency, it seems to me, is being applied from a matters. That is my understanding. I am not a lawyer government and departmental perspective rather and no doubt others will be able to give you far more than the child’s. I think what the child needs is the informed advice. simple consistency that if you are in Wales and you Chairman: Neither are we but I think we would agree have an issue you go to the Welsh Children’s with you, which is why we recommended it. Commissioner. I think that should predominate; otherwise I cannot see any credibility in claims of Q42 Julie Morgan: Just following that up, you say child-centredness. you do not think the Government of Wales Act would have to be amended, but do you think it could Q40 Mr Williams: Some of the issues that aVect be done via the Children Bill or do you think the children are of a judicial or quasi-judicial nature. power is already there? Some of those are devolved and some are not Mr Clarke: My current powers are there but I do not devolved. You have talked already about special have my strongest powers in the area of non- education and the tribunals and things. Then on the devolved matters. I cannot require documentation non-devolved issues you have family courts. What to be given to me, I cannot require the attendance of are your powers exactly over judicial processes? Can witnesses to give evidence on oath if I am conducting you intervene? Are you able to report on those an inquiry. From the point of view of being the most issues? powerful children’s champion possible it would be Mr Clarke: Certainly. My general power, as the good from my perspective if the current Children Minister said earlier, is that I am to make Bill were amended to extend my powers over those representations to the Assembly on such matters. It matters. is not really a contradiction but I have actually Chairman: Which is what we want. approached the Minister for Health and Social Services on the Assembly on two non-devolved Q43 Dr Francis: Good morning. If we could move matters: the functioning of the Criminal Records on specifically to consultation on the Children Bill. Bureau, which was causing a serious inhibition to Were you consulted on the proposals to establish a the functioning of playschemes, and CAFCASS, Children’s Commissioner in England? which is now going to be devolved but was not at the Mr Clarke: My brief answer would be no, for the time. I think she was right to say it was not formal: following reasons: in Scotland and Northern Ireland I wrote a letter and we worked it out. I have found a I was extensively consulted and I actually went to number of informal ways of being able to advocate Belfast when their Assembly was sitting and gave on behalf of children and young people: I have been evidence, much as I am doing now, before the invited regularly to speak to magistrates’ benches, relevant committee prior to their setting their oYce family court judges and indeed other judges within up. I was video-linked from Scotland to a sub- Wales; I have been invited into two of the three committee of their Parliament similarly. In the case prisons in Wales; I have meetings regularly with of England, I was invited to a meeting by Margaret operational commanders in South Wales Police and Hodge and attended it but I would not have I have had contact with other police authorities. The described that meeting as a consultation meeting. At only place I have found my current powers a serious that point I did immediately outline my concerns on impediment has been in the conduct of the Clywch the proposal about non-devolved matters. I heard Inquiry where I would have liked to have had access those for the first time in that meeting and I outlined to a police report but I was not able to demand it, my concerns there and then and followed that up 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Mr Peter Clarke with a letter. My impression was, and I think the Mr Clarke: I think it was 15 December. actual phrase used was, that it was “non-negotiable” at that time. I would not describe such a process, therefore, as a consultation. Q49 Chairman: Did you feel then that you were being presented with a fait accompli, that they had decided precisely what was going to be in the Q44 Dr Francis: Apart from that situation which Children Bill then and that was it? you have just described, did you volunteer to give Mr Clarke: Yes. advice? Mr Clarke: Yes, I did. Just prior to the meeting I did have with Mrs Hodge we happened to be on the Q50 Julie Morgan: In your evidence you just said same platform together about these matters and at you felt that it was non-negotiable. that point I oVered any help that I could possibly Mr Clarke: I think that phrase was actually used. We give by way of information or the sharing of any did actually take rough notes of the meeting so I experience we had from three years’ operation in would be able to check that. I do seem to remember Wales. that phrase being used.
Q45 Dr Francis: What was the response? Q51 Julie Morgan: So at the point that you were Mr Clarke: The meeting. I believe the meeting was V consequent to that. called in or o ered to go to discuss the setting up of the English Children’s Commissioner you thought everything had been set in stone? Q46 Dr Francis: Could you describe the nature of Mr Clarke: That was most certainly the impression that meeting? I gained at that meeting. Mr Clarke: It was perfectly friendly, it was an enjoyable hour or so. I was accompanied by my deputy, Maria Battle, who is a lawyer. We shared Q52 Julie Morgan: Do you not think that is a bit with her some of our interests and how we saw this as damaging, that Wales has had a Children’s an opportunity, we felt, for the whole of the United Commissioner for three years, we led the way in Kingdom to be covered and for children in the having a Children’s Commissioner, and there has United Kingdom to have powerful children’s been no meaningful consultation about setting up a champions. I cannot honestly remember who raised Children’s Commissioner in England? first the issue of the concerns about non-devolved Mr Clarke: Yes. I find it very surprising that in powers but I was not aware of that proposal until I Wales we have the longest amount of experience in got into the room. I immediately expressed my running a Children’s Commission and it was not concerns about it, perhaps not as well thought out as seen, therefore, as a point of early reference given I have now had time to reflect on them, but some of what was going to come forward. I do find it them were immediately apparent to me, particularly surprising. On a personal level, I also find it the fact that I think there will be an objective overlap disappointing. of function because I have this general power to make representations at the moment in matters that the new English/UK Commissioner will also be Q53 Julie Morgan: Do you think this might be given powers, albeit limited. That is an objective perhaps something to do with devolution, that problem, it is not just because of the way I see it. England has not yet learned to learn from Wales? Mr Clarke: I have to be cautious. Q47 Dr Francis: To come back to a point that I raised with the Minister about the apparent Q54 Julie Morgan: That is just a comment. uniqueness or peculiarity of the Commissioner for Mr Clarke: I think sometimes the world looks very England, is it your view in terms of his or her powers diVerent depending which end of the M4 you are and the way in which these Commissioners or looking at it from. Ombudsmen are now being established throughout Europe and the world that what is envisaged in England is somewhat exceptional? Q55 Julie Morgan: Do you think it is possible to say Mr Clarke: Most certainly. I described it as the that the English Children’s Commissioner is weakest model of the Commissioners or independent? Ombudsmen that I have seen in Europe. Whilst Mr Clarke: In technical legal terms I understand it some Commissioners and Ombudspersons across will be established as a corporate sole, as I am, so in Europe might have individual elements of weakness, that sense it has independence. I do not believe that as I see it in the model, I have never seen such a it is given two things: the first is its overarching aim combination of those weak elements as in what is has to be consistent with the purposes of the being proposed here and quite seriously to the point Children Bill, according to my reading of it, and where I do wonder if the word “Commissioner” is secondly, and most importantly, the power of the the right word to describe the oYce that is being Secretary of State to instruct the Commissioner to proposed. undertake an investigation, and that that is the only route by which the Commissioner may undertake Q48 Chairman: Can I ask you when that meeting such an investigation seems to me to critically impair was? the independence of the oYce. 9624232001 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Mr Peter Clarke
Q56 Julie Morgan: If you no longer were able to never heard of me, and they were parents. That is a undertake inquiries yourself but you had a similar huge challenge, to get out there that “There is this direction put on you, how would that aVect your person for you, children in Wales”. It is one we are role? making huge eVorts to try and overcome in a variety Mr Clarke: It would compromise the independence of ways with a variety of partners. Introducing this of my oYce. One of the problems of principle I have sort of confusion will just set us back almost to the about the idea of developing a protocol or beginning again because I will have to then say to memorandum of understanding is precisely that. children, “Yes, I can talk to you about this, this and The clearer it makes things, the more it would this, but I am afraid it is the English Commissioner potentially compromise my independence, so there who you will need to talk to about this matter if you is an in principle issue there, I think. It is at the early have got a probation oYcer. Oh, and by the way they stages of discussing such a matter so I have not cannot deal with individual cases anyway”. I think thought it all through yet but that is an in principle that will cause immense confusion. It is a very hard issue, it seems to me, and one that I would be message to give. Personally, I think that we, the concerned about during the course of any such adults, should carry responsibility for working out discussion. the diYcult things and, therefore, it is for us, and particularly for Parliament, to come forward with a Q57 Julie Morgan: Do you think it is possible to deal set of proposals that will actually make that easiest with these sorts of clashing orders? If the Bill is from the child’s point of view wherever they are in unamended do you think it would be possible to the United Kingdom. come forward with some working arrangement? Mr Clarke: I think the key sticking points would be if we went for the one-stop shop approach and these powers of the English/UK Commissioner were by Q60 Mr Caton: The Minister who just gave evidence protocol actually deferred to me, the one I would very succinctly described two key objectives. One seriously object to is the power of the Secretary of was to maintain your independence and, secondly, State to instruct me to undertake an investigation, to have a single reference point for children. From not only because of the independence issue but it what you are saying it seems to me that possibly the would play havoc with my work programme. As we only way of achieving that, and certainly the best are involving children and young people more and way of achieving it, is to transfer responsibility for more in developing our work programme, in a way non-devolved matters to your oYce. Is that right? that would be completely disrespectful of the Mr Clarke: That is my view, absolutely. Yes. contribution that they are making to that. That is a major concern that I have. If the Secretary of State could not instruct me but only ask me, that is not a power the Assembly have and I would have to then Q61 Hywel Williams: Can I ask you about co- publicly refuse, perhaps, and that in itself would operation between Commissioners. The Bill as become an issue and a distraction and the agenda currently drafted states that the Commissioner has would again have been set by the Secretary of State responsibility for promoting the views and interests rather than the children of Wales. I have real of children in the United Kingdom and that he or she concerns about how we might achieve this. I am not should have to take account of the views of, and saying it is impossible because I have not had time to work undertaken by the other Commissioners. How give it due thought. do you think that would work in practice? Mr Clarke: I struggle with the model being proposed Q58 Julie Morgan: To be clear about what those here. I do not like the weakness of the words “take circumstances would be, that would be, for example, account of”. I am not clear whether that is a UK- if the Secretary of State in England felt that there wide brief for children as a whole in all areas of their should be an investigation into something that had lives or it would just be in these non-devolved happened to a child in a prison in Wales. That would matters. We have not waited for the Bill as be the sort of circumstance, would it? Children’s Commissioners. Kathleen Marshall from Mr Clarke: That is precisely the sort of Scotland starts on Monday but the three of us have circumstance. Any part of the secure estate really. already formed the UK Commissioners Group and we will be collaborating together in any case. We will Q59 Julie Morgan: As the Bill stands at the moment have to look at these new proposals in the light of that could happen. that already having been established, I think. Mr Clarke: As the Bill stands at the moment he Personally I would have preferred to see something could instruct the English/UK Commissioner to do in the Children Bill which gave a degree of statutory such an investigation. Again, I think that will cause basis to the collaboration of the four Children’s confusion in the minds of children and young people Commissioners in the United Kingdom and gave and it will seriously compromise the work that we them a clear reporting line so that the United have done. It is one of the biggest challenges of my Kingdom Government could actually hear the oYce, and if I did not know it then I was reminded collective voice of the Commissioners on matters of it on the You and Yours programme that some of that aVect all children across the United Kingdom you may have heard last week when the first three irrespective of devolution settlements in its various people they asked in the whole of Bridgend had parts. 9624232001 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
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22 April 2004 Mr Peter Clarke
Q62 Hywel Williams: My next question flows from Q65 Mr Caton: If you were involved in the case of a that. If there was a disagreement between the young person who entered the secure estate via the Commissioners, who would have the authority to youth justice system, would you have to pass the case make the final decision? on to the Children’s Commissioner for the UK if such Mr Clarke: I have been worried that there is an implicit a post is created? What diYculties would you envisage hierarchy in what is being proposed and I know that in such a transfer of responsibilities? worry is shared by my colleagues in Northern Ireland Mr Clarke: Technically I suppose that I would but it and Scotland as well. I see no reason why there should would be fairly futile because the English be such a hierarchy. I think the children in Wales, Commissioner will not have powers over individual Northern Ireland, England and Scotland deserve to be cases in any case. I suppose I could ask the Assembly treated equally and that their spokespersons, to the to send it to the Secretary of State for Education in the extent that we are that, therefore need equal status. hope that he might order an inquiry but that route is so circuitous that I would not really consider it. The other most obvious one is that by then we would have had a Q63 Chairman: I do not know if you have seen the relationship with the child, and that is the most submission from the Minister and the Welsh important issue, and we would then have to hand it on Assembly. She includes a line in that, which is that in a way which would mean us passing it over to “ . . . through arrangements which would allow the another body and rupturing that relationship, if you Welsh Commissioner to act under delegated powers of like. As I say, the more powerful point I believe is the the UK Commissioner in Wales” which does tend to first, and that is given that there is no power over suggest there is this hierarchy proposed which you individual cases envisaged for the UK or English would be right to be outraged about. Commissioner, except on the say-so of the Secretary of Mr Clarke: I think outraged would be the proper word State, presumably I would have to take that circuitous really. My interests are the children and young people route I talked of, and there is no guarantee that the of Wales, they really are, that is what I am here for. My Secretary of State would consider it a matter worthy of anger and crossness about various elements of the investigation. Whereas if I thought it was really Children Bill derives from that because I think this is important and was likely to have issues that aVected going to make things more confusing for them, and other children then, were those powers mine, for the goodness knows their lives as children are confusing child who had been put there through social services I enough as it is. I think that the Government and all of could just conduct a review. us should be working to make things as simple, as straightforward and as eVective for children as possible. I do not think this Bill does it in this section. Q66 Mr Caton: Can you explain your responsibilities I think in other sections of the Children Bill it is under the United Nations’ Convention on the Rights excellent. of the Child and how they diVer from the proposals for a Children’s Commissioner for England/UK? Mr Clarke: It is very simple really. I must have regard Q64 Mr Caton: In your briefing paper you cite an to the UN Convention on the Rights of the Child in example of how two children from the same street but everything that I do. It is a requirement upon me to try resident in Hillside secure accommodation could be V and make sure that as many as possible of the 650,000 represented by di erent Commissioners depending children and young people in Wales know what their upon the route those children took into secure V rights are under the UN Convention. It is clearly stated accommodation. Could you explain the di erent levels that the UK Commissioner may have regard to the of service each child might receive? UN Convention on the Rights of the Child and I am Mr Clarke: From the Commissioner? Certainly, yes. very perplexed as to why that weaker form of words The one who is placed by a local authority will have the has been used. All of my colleagues in Northern full benefit, to the extent that we have it, of all the Ireland and Scotland have the same strong form of powers that I have outlined, so I could require Hillside words that I have. That is considered a fundamental to give me information about their treatment, if that is aspect according to the European network. I believe it what the issue was. We could even go so far as to hold also formed part of the critique by the UNCRC, the a public inquiry, should we so require it, without Standing Committee on the rights of the child, when it having to ask anyone’s permission so to do. For the looked at the United Kingdom’s performance against other child, under the arrangements envisaged in the its charter objectives. The UN Convention is the Bill the issue could be reported to the English/UK cornerstone of the work that we do really. Commissioner, presumably, and might help inform their annual report to the Parliament of the UK if it goes past the Secretary of State. So it is very diVuse and Q67 Mr Caton: How do you see that diVerence unlikely to achieve such prominence and have such working in practice? potential eVective remedy in the case of the child who Mr Clarke: As it is actually worded it would be has been placed through the juvenile justice system. perfectly possible for the English/UK Commissioner Again, that example which we cited does seem to to disregard the UN Convention in his or her demonstrate the severity of the problem we are likely judgment, other things are more important. I do not to get into. It could even be that those two children are think that one should be given that temptation, if it is a from the same family. It does seem to make things look temptation. 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22 April 2004 Mr Peter Clarke can sometimes predominate over an understanding talking about something that is diYcult and, goodness and a proper interpretation of what their actual knows, things like child abuse, bullying and the other rights are. things that really matter to children are diYcult to talk about, you must be able to talk about it in your first Q68 Hywel Williams: If the Commissioner for language, in the language you feel most comfortable England does not have a physical presence in Wales, with. For many children in Wales that language is the how will the work be publicised and promoted? What Welsh language. If an oYce like mine does not provide would you feel if that role was pushed towards your that service in that language then it is wasting its time oYce? for those children. Mr Clarke: Less than delirious, I think it is fair to say. I think it was mentioned earlier that one of the key Q71 Julie Morgan: You say you are not aware of any points is the fact that all of our work is available resources being put aside for carrying out the functions bilingually. It is absolutely critically important. This is of the Welsh Language Act. Do you know if this point a fundament of working with children, that they have is being considered by the Department here? to be given the opportunity to express themselves in the Mr Clarke: I have seen no evidence that it has been. I language they are most comfortable with. I just do not honestly cannot remember in the meeting I had with see how an English/UK Commissioner is going to be Margaret Hodge whether I mentioned it or not, I was able to achieve that, particularly if they are not going suVering from mild shock at the time, I think. to have a physical presence Wales. I suspect that, V again, this may be something that is seen as being Q72 Chairman: Could you a ord to provide Welsh negotiated as part of a protocol or memorandum of language services for an English/UK Commissioner in understanding. I would have very serious reservations those areas that they might be involved in in Wales? about being the sort of Welsh agent of a Commissioner Mr Clarke: I could only do so at the expense of other in England because I would be then, in a sense, having areas of my budget. Although I do not in any way to do the PR work for that oYce when I am actually criticise the Assembly, who have increased my budget not comfortable with its powers, with its remit and year on year, there is no room for manoeuvre in it, we with the relationship between my oYce and theirs. It spend every penny and every pound that we can on would be asking a lot of me. One thing I do need to say trying to further the interests and the rights of children is because we genuinely have the rights and the welfare and young people. Certainly I have not got any slush of children as our only objective really, and our funds that would allow me to do PR work for the obsession, if this Bill goes through like it is, we will try English Commissioner. andmakeitworkasbestwecanbutitisnotbeing made very easy for us. I think it could have been made Q73 Chairman: That leads me on to the point of a lot easier for us and, more importantly, for the funding again. I think you mentioned there are 650,000 children. children in Wales. Do you happen to know how many there are in England? Mr Clarke: I believe it is 11 million. Q69 Hywel Williams: The Welsh Language Act actually refers to public bodies in England who Q74 Chairman: You are getting 1.5 million for 650,000 provide services into Wales and I think it would bear and they are talking about 2.5 million. investigation as to how those responsibilities should be Mr Clarke: Yes.Ibelievethesumsworkoutat24pper discharged and whether it is reasonable for an agent to child in England under what is being proposed, discharge them. That is just a comment. Are you aware whereas I think we are £2 something per child in of any resources being set aside for the employment of Wales. Northern Ireland have even more and Scotland Y Welshspeakersintheoce of the Children’s similarly. It is not even in the same ball park. Commissioner for England? Mr Clarke: No, I am not. Also, I have serious doubts Q75 Chairman: That is patently obvious. If there are as to whether the budget proposed is anywhere near no further questions from my colleagues, if I could sum adequate even for the very limited role that is being this up. As the established Children’s Commissioner proposed within the Act. Certainly I cannot see that for Wales, with the resources that you have now and there would be room for translating all the the powers that you have now and the independence documentation, which is what it would need to do, into you have, is your view of the proposal for the England the Welsh language and making it available for Welsh Commissioner, never mind the problems we have speakers, to Welsh children. I cannot see how it can established, that there may be a friction between your possibly achieve that. role and that role, that it would be adequate for the children of England? Q70 Hywel Williams: Can you just comment on the Mr Clarke: No, it would not. I would just echo the impact on Welsh speaking children of not being able other two of my colleagues who, when asked a similar to discuss their cases in their chosen language? question, also said they would not want the job. Mr Clarke: My comments are going to be informed in Chairman: I think that sums up this morning’s part by my experience in Childline, which is a evidence session very well. Thank you for coming. You telephone counselling service for children. There it is can be sure that we have lots of ammunition that we considered as just one of the most fundamental are going to fire at the Minister for the UK. Thank principles. We know ourselves as adults too, if you are you. 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 14 Welsh Affairs Committee: Evidence
Tuesday 4 May 2004
Members present
Mr Martyn Jones, in the Chair
Mr Martin Caton Julie Morgan Mr Huw Edwards Hywel Williams Dr Hywel Francis
Written evidence from Rt Hon Margaret Hodge MBE MP, Minister for Children, Young People and Families is printed on page Ev 37
Witness: Rt Hon Margaret Hodge MBE, a Member of the House, Minister of State for Children, Young People and Families, examined.
Q76 Chairman: Welcome, Minister. We all know Commissioner will improve their access. At the you of course but would you mind introducing moment, if it is a non-devolved issue, they could go yourself for the record? to the Welsh Commissioner and he would have to Margaret Hodge: I am Margaret Hodge and I am say, “This is not to do with me.” Now, he can refer the Minister for Children, Young People and the matter to somebody for whom these issues are Families. firmly on their constitutional agenda.
Q77 Chairman: I do not know how much you are Q78 Chairman: I think you have some convincing to aware of the very real concerns there are in Wales do, Minister. about the proposals in the Children Bill in relation Margaret Hodge: I probably have in this context. It to particularly to the relationship between the helps if I think we have it about right and I do Children’s Commissioner in Wales, which is up and recognise that there are diYculties, but I think we running, and the proposal for an England have done a good job for Wales on the whole. Commissioner or possibly even a UK Commissioner. We have had evidence given to the Q79 Chairman: It remains to be seen. You, very Committee that both the Welsh Assembly rightly in your terms, stressed right at the beginning Government and the National Assembly as a whole that you do not want to devolve any more powers. wish to see the present powers of the Children’s That is fair enough. That is entirely a matter for the Commissioner for Wales extended to cover all non- UK Government at the moment, but in a sense it is devolved matters. You will of course have had our not devolving power to the Assembly because the report on children and young people that Children’s Commissioner within Wales is recommended exactly that. However, so far, you completely independent. You would not be have decided to confer such powers on a Children’s devolving powers to the Assembly or to Wales. You Commissioner for England. What were your reasons would be giving the Children’s Commissioner the for not agreeing to the aspirations of the Welsh right to look after all the issues relating to children Assembly? either in England or Wales, in either non-devolved Margaret Hodge: Quite simply that this was not a or reserved matters. It is not devolution. I know we context in which we were seeking to extend the have had evidence from National Children’s Homes, devolution of powers to Wales in this particular Barnardo’s, Save the Children and from the area. We therefore felt that for children and young Commissioner himself all saying the same thing: that people who were accessing non-devolved services they see the independence of the Welsh across Britain it was appropriate that the Commissioner as important and this is in fact going Commissioner responsible for those services, who is to have the reverse eVect. It is going to make the the UK Commissioner, should be the one Commissioner slightly less independent. On the very answerable. This is not an issue where we were point of devolution of powers, can you tell me choosing to devolve further power to Wales. I think anything about that? this Bill is a very good Bill for Wales. I hope the Margaret Hodge: The Children’s Commissioner for select committee feels likewise. A third of the clauses England is also independent. All these concern Welsh matters and the way in which Commissioners are completely, utterly and totally children and young people’s services will be independent. The Children’s Commissioner for delivered in Wales. There is additional devolution Wales, if he has a report to make, reports to the after representations I had made to me of the Welsh Assembly. Therefore, it is appropriate that on CAFCASS service so that that can be appropriately issues which are devolved he should report to the integrated in with the children and young people’s Welsh Assembly. The Children’s Commissioner for agenda for Wales and the work that the Welsh England will report to Parliament independently on Assembly does. I think this is a good news Bill. In issues that are a matter of concern to the UK terms of the access of children to a Commissioner Government and that includes non-devolved issues. who is listening to their voices and working on their I think the way in which we have dealt with what is behalf, the settlement with an English undoubtedly an untidy situation, because 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 15
4 May 2004 Rt Hon Margaret Hodge MBE MP devolution is not particularly tidy or clear; it is ministers. We are extending the powers because the diVerent in all the four countries, is best given where English Commissioner will now be able to raise the powers lie for people to take action. If there is a matters that the Welsh Commissioner may problem, for example, in the criminal justice system communicate to him on non-devolved issues. That where it impacts on children and young people in route will be open to him in the future. Wales, it is the UK Government that acts. Therefore, it is appropriate that the Commissioner Q81 Chairman: It sounds like you are putting an who reports into the Houses of Parliament and to extra stage in the route. If at the moment he can the UK Government should report on those report to the Secretary of State for Wales and you matters. That is just logical. I have had discussions are going to say now he can report to the English certainly with the Welsh Commissioner and the Commissioner who can then report to the Secretary Northern Irish Commissioner around these issues. of State for Wales, it is getting a bit convoluted. When the Commissioner for Northern Ireland came Margaret Hodge: This is because devolution is not to me, we talked about what are bound to be slightly straightforward. I can talk to you about a huge woolly areas. Nobody denies that we are trying to range of issues in my portfolio. For instance, only deal with some devolved matters and others that are last week I was at a conference with delegates from not devolved. The Northern Ireland Commissioner right across the UK. A delegate from Northern wanted wording on the face of the Bill which Ireland said to me, “When are we going to get reflected the relationship between the four UK children’s centres in Northern Ireland?” The reality Commissioners. We were very keen on that because is that is a devolved issue and whether or not if that would make people feel great ease and children’s centres appear on the children’s landscape comfort with the settlement that we have decided in Northern Ireland is a matter not for me but for that was a good thing. We proposed at the time that ministers in Northern Ireland. Devolution does what we wanted to put onto the face of the Bill was a create these tensions but we have to be clear that on duty to cooperate between the four Commissioners. this particular issue we are not going for further My personal view is that that would have devolution of functions and therefore we have to strengthened the coherence of those four ensure that the UK Commissioner who has Commissioners working together on UK matters responsibility has responsibility for all children like in this instance the issues I know that are of across the UK and that they are treated equally. particular concern, issues around children and Chairman: I really think you are missing the point on young people and the criminal justice system. this because this is not further devolution. This is an However, the three Commissioners in the devolved independent Children’s Commissioner being given countries did not want that wording, so we have further powers. It is not giving further powers to the settled for slightly looser wording in clause 5(2)(a) of Assembly. the Bill where it says: “In discharging his function under section 2 the Children’s Commissioner must (a) to the extent that the matters with which he is Q82 Dr Francis: I wanted to ask you about these concerned relate to children in Wales take account intriguing words “tidiness” and “untidiness”. In of the views of and any work undertaken by the your suggestion for a way forward, you were hinting Children’s Commissioner for Wales.” I was keen that there may be three routes that the Welsh that that should be tougher. It was in the interests of Commissioner could take. Do you think that creates trying to get agreed wording with the existing more untidiness? That is a rhetorical question. Commissioners that we weakened it to what is now What I am really asking you is if you discard the on the face of the Bill. word “untidiness” and think of the word “understandable”, looking at it from the perspective of a Welsh child, would it not be much simpler to say Q80 Chairman: Before I ask about how you got into that the Welsh Commissioner is the person that the negotiations with the other Commissioners and Welsh child would approach? As the Chairman has came up with that wording, because I think that is already suggested, forget for one moment about the important, you said that the English Commissioner issue of devolution and non-devolved matters. is independent but is it not the case that the Secretary Would it not be much easier and more of State can direct the English Commissioner to a understandable for a Welsh child to see that Welsh certain extent? The only thing you have said that Commissioner as the person to whom he or she attempts to convince me that there might be some should go? reason behind the proposal as it stands is the Margaret Hodge: Can I answer that in two ways? reporting aspect. Surely the Welsh Commissioner The first is that currently the Welsh Children’s could report to the Secretary of State for Wales on Commissioner has a number of routes that he could non-devolved issues? employ to make representations around non- Margaret Hodge: At the moment, if an issue is raised devolved issues. This morning, in preparing for with the Welsh Commissioner which is a non- appearing before you this afternoon, there had been devolved issue, the Commissioner can do one of a one case in the three years that the Welsh number of things. He can talk to the Welsh Commissioner has been in oYce where he has found Assembly. He could make direct representations to the limit to his powers has inhibited what he has the relevant UK Government department and he wanted to do. That is in the case of the investigation could also talk to the Welsh OYce. I think that oVer of the teacher who committed suicide. That is the has been put to him by UK Government Welsh only case which has emerged. Secondly, when Jane 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 16 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP
Hutt was also here in front of you a couple of weeks the Children Bill. What we want the English ago, she said that she had never used the formal Commissioner to do is to be able to look right across route which is open to her to make representations all institutions and services in both the public, to a UK Government department or government private and voluntary sectors to see how they oYcials. It just has not happened. I slightly feel that support those outcomes for children. What we also we are talking theory, not practice. Secondly, what want the English Commissioner to do is to make does this mean to a child? I think it is wrong to be sure that children’s voices are heard in determining patronising of children and young people, if I may those outcomes. In Wales, which is a much smaller say so. Adults who have to find their rights through country, with a population of 650,000–700,000 a range of routes in relation to the devolution million children in Wales—those are the sorts of settlement manage to find their way through that. So figures—the Welsh Assembly has chosen to go down will children. Anyway, the reality of how this will adiVerent route, which is fine, where the emphasis of work in practice will depend on the working the work that the Children’s Commissioner does is relationship between the Welsh Children’s on policing individual rights. If you reflect and look Commissioner and the English Children’s back now on what the Welsh Children’s Commissioner. I have no doubt that when we get Commissioner has done, he now says he has about this into legislation and we appoint somebody they 500 live cases a year. In the first three years of his will be pretty quick in sitting down and sorting out time in oYce, he has produced one general report. I a way of working together. Probably, most children think it was on whistle blowing. I would hope that will go directly to the Welsh Commissioner whom the Children’s Commissioner in England will be very they should know—they do not all—as the route diVerent. If you parallel that into England, 500 to raise an issue. The Welsh Commissioner will then individual complaints to the Welsh Commissioner pass that through if it is a non-devolved issue could be 8,500 in England. They would be to the English Commissioner. That is pretty completely overwhelmed by that and no work would straightforward to me. What we do not want to cut be done, as very little work has been done in Wales, oV is the right for a Welsh child to go directly to the on those absolutely key, very important issues which English Commissioner on a non-devolved issue I think will influence the outcomes for children. where an English child also has that right. A Welsh V child in a youth oVending institution, for example, They are very di erent creatures and deliberately so. My view is that the English Commissioner will be ought to have the same right to go to the English V Commissioner or may choose to go to the Welsh extremely e ective in influencing both public and Commissioner. In practice, I think your concerns are private bodies in how they configure, frame and more theoretical than real. deliver services for children.
Q83 Chairman: I do not think they are because you Q86 Mr Caton: I think you have caricatured what said in your paper that the English Commissioner the Welsh Commissioner does but you did say that will not be able to take up individual cases. Am I the child in Wales would have this new avenue. He right or have you changed your mind? or she would go to the Welsh Commissioner as usual Margaret Hodge: No. The English Commissioner and then the Welsh Commissioner would take it up will not take individual cases. with the English Commissioner. If that is true and what you are saying is right and that can happen, the Q84 Chairman: The Welsh Commissioner can. Welsh child has a right presumably that the English Margaret Hodge: Right. We have a very clear reason child has not and is going to use the English why we are not doing that, which I can explain to Commissioner to further that right. you if you want. Do you want me to explain that? Margaret Hodge: The English Commissioner will not take individual cases but if there is a child’s voice Q85 Mr Caton: I think we need to clarify something. on non-devolved issues, on the state of the Minister, as I heard it, you just said that a Welsh conditions in a particular youth oVending child could go to the Welsh Commissioner and then institution, for example, that voice can be expressed the Welsh Commissioner could use the English through the Welsh Commissioner or directly to the Commissioner to take up that case. If the English English Commissioner and they will have regard to Commissioner has no power to take up individual that as and when they report to Parliament in their cases, we have come to a dead end, have we not? annual report. It does not mean they pursue or Margaret Hodge: No. We have constructed a very police the individual rights of the child in the context diVerent sort of Commissioner in England from the of the youth oVending institution. Sorry if I muddled one that you have in Wales. We have done that you earlier. purposefully and I think appropriately. The English Commissioner is not a Commissioner that has been set up to police individual rights. We have done that Q87 Chairman: The overall thrust of what you are for a number of reasons. We have done that because doing in terms of the idea that the English the whole thrust of the way in which we are trying to Commissioner is going to look at much broader respond to children’s needs and aspirations is to issues is fine. That is great and perhaps you could be ensure that we achieve better outcomes for children. saying that the Welsh Commissioner should be Those are the five outcomes that children said matter doing that as well, or more of it. We are all UK MPs to them and which we are now placing on the face of as well and I am going to fight on behalf of the 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 17
4 May 2004 Rt Hon Margaret Hodge MBE MP children of England. Who is going to take up their Q93 Mr Edwards: Whilst I accept what you say, that individual cases if the English Commissioner does the child population of Wales is around 700,000, not do it? could you not have a structure in England with, say, Margaret Hodge: There is a whole panoply of a system of regional commissioners that could have existing institutional and constitutional avenues for the investigative powers which the Commissioner children to pursue their individual rights. That is a for Wales has? key reason why we thought it was inappropriate for Margaret Hodge: Of course you could. There is the English Commissioner to add to that panoply. nothing to stop you doing that. I simply do not see any purpose in duplicating the panoply of existing structures that we have through which children can Q88 Chairman: Are you saying it is inappropriate for pursue their individual rights in settling through a the Welsh Commissioner to add to that panoply? Children’s Commissioner for England. That is our Margaret Hodge: That is your choice. view. We will see during the course of the consideration of our Bill through Parliament Q89 Chairman: It is not our choice. All the bodies whether that view holds but that is currently the that you are referring to, the NSPCC and so on, will government view. be furthering children’s rights or whatever but they are all supporting the Welsh Commissioner. Q94 Julie Morgan: I think we would both accept Margaret Hodge: I am not referring to the NSPCC. that the need for Commissioners in Wales, Northern I am thinking, for example, of a child with a special Ireland and now the English one has really come educational need, where I understand the Welsh about as a result of failures in the existing system. Commissioner’s case load has been dominated with The North Wales child abuse case recommended a children going to him because they have a problem Commissioner and I think Lord Laming with their special educational need being met or recommended a Commissioner. They really have assessed. I do not know what it is but that is where come about because of these horrific problems that the predominance of his case load arises. In the have arisen. Would you not agree that whatever English constitutional settlement, they have various systems are in place, although I would see it as the avenues through their schools, through the special duty of the Commissioner to look at those systems educational needs tribunals and through the courts. and see that they are working properly, one of the There are three sets of avenues through which a child key things about having a Commissioner would be can pursue its right to a special educational needs that there would be the opportunity for an statement or special educational needs provision. I individual child to go straight there but if this think it is a waste to add to that. That is my view. Commissioner over time becomes very well known Ministers and the Assembly in Wales have taken a and children know who the Commissioner is they diVerent view. I respect that. That is part of what have that straight access? On the issue about the 500 devolution is all about but equally we will wait and cases that the Children’s Commissioner in Wales is see. I think the model that we are creating of a dealing with, there is no way that he and his oYce are Children’s Commissioner will have a diVerent and actively dealing with 500 cases. Many of them are pretty substantial impact on the lives of children in referred back to those first points of contact, back to England. the local systems. Some of them are just inquiries. I think it would be wrong to have the impression that Q90 Mr Edwards: Would you not confirm that it is those 500 cases were active cases. Do you think that Parliament that decided it? It might have taken this appeal to a powerful position like a advice from the Assembly and the Assembly Commissioner is something that we need as a result Minister, but it was Parliament that passed that of these inquiries? legislation. Margaret Hodge: Can I say three things in response Margaret Hodge: Parliament decides—? to that? First of all, I would commend to the Committee that they perhaps look at Lord Laming’s speech in the Second Reading in the House of Lords Q91 Mr Edwards: Parliament passed the legislation on the Children Bill because he was quite clear that to have a Children’s Commissioner for Wales. the route down which we are travelling, in relation Margaret Hodge: The UK Parliament decided, yes. to the powers we are proposing for the Children’s I am not clear on the determination of the Welsh Commissioner in England, are appropriate, powers but I imagine it was on the advice of the proportionate and right. He agrees with that. We Welsh Assembly and people in Wales. That was their have not evolved this in a vacuum, out of thin air. It view of how they wanted it to play out in Wales. has the support of the man who was largely responsible for much of the reform agenda that we Q92 Mr Edwards: Surely, but if you think that the are now driving through. The second thing is I agree English Commissioner should not have the same with you entirely that it is utterly central to the powers to make individual inquiries that the Welsh success of the role of the Commissioner that children one has, do you think that the Welsh one should not should feel that they can have access to express their have them? views and concerns. I am 100% with you on that. Margaret Hodge: I honestly think that is a matter for Indeed, one of the key reasons for establishing the Wales. That is the strength of a devolution Commissioner role is that children with views, settlement. particularly those who are least often heard, who 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 18 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP tend to be the most disadvantaged in our disappointing. I have no doubt that there is advice community, should feel they have someone who will going on, on a day to day basis, and policies are listen to them and who will promote their interests. being developed, but I hope that the English When we consulted children, as we did on our Green Commissioner will put into the public domain that Paper, it was very warming that two-thirds of the voice of children on a whole range of issues. The responses we had to the Green Paper came from second thing is I read his evidence to you when he children themselves. They said they wanted appeared before you on this issue. It was interesting somebody “who has the ability to listen, understand to see in that that he is now looking to recruit and genuinely care.” Many of them wanted a additional staV to cope with the individual Commissioner who had had the experience of care complaints that he is having. That suggests to me themselves. Those were the priorities that they gave that there is a change of balance in his workload and to us. We do need a capacity which really hears that there is a lot of time and energy being expended children’s voices, really listens, really seeks out their on pursuing individual rights. That is my view. I may views and really ensures that all decision makers, be wrong but that is the view that I hold and that is whether in the public, private or voluntary sector, one of the reasons why we are putting the hear those views when they are framing policies and proposition in the Bill that will be considered delivering them; but that does not require them to through the parliamentary process. police individual cases. You do not make the jump from that to the necessity that this is the organisation that will police and judge on individual cases. We Q96 Hywel Williams: May I refer you back to a have just taken a view that that is not where we want question asked by the Chairman earlier where to focus it. I have said to you before and I strongly perhaps I missed the answer? You said a number of believe that you can go down a route with these times that the Commissioner in England will be Commissioners where you say one of the key roles is independent. Can you explain how that to pursue individual complaints. What tends to independence varies between England and Wales happen with so many of these Commissioner when the English Commissioner apparently will be organisations is they get bogged down in pursuing subject to direction and the Welsh one apparently individual complaints and they lose sight of the is not? bigger picture on which we want them to focus. I Margaret Hodge: The English Commissioner will be have seen that a little bit in the other Commissions set up as a non-departmental public body. She or he that we have, in the CRE, and a little bit in the will have the duty to report annually to Parliament Disability Rights Commission. When I had the on anything that she or he wishes to do. She or he ministerial job which meant I established the will have also the authority to range right across any Disability Rights Commission, I went and looked at issue which concerns children and young people and Commissions in Australia and America. Where you will have to ensure that their voice is heard. That, to get a Commissioner with that duty to investigate me, is pretty independent. I do not think we will like individual rights, it tends to take them over. We do everything that the Commissioner tells us. I think not want that here. Come back to me in five or ten there will be some quite challenging conclusions years’ time and if we have got it wrong I will put up coming out of the various agendas which she or he my hands, but I think we are establishing something might wish to pursue. Let me take some topical which will have a hugely strong influence on what issues at the moment. If you think about it, child matters to children, which are those outcomes, and obesity is pretty high on everybody’s agenda at the which will focus on influencing those key services moment. I would see the English Commissioner, as which deliver for children. I respect your diVerent I envisage it, taking evidence, doing some research view. and writing a report on that which may say some comfortable or less comfortable things to some government departments. We would have to listen Q95 Julie Morgan: I feel it is possible to have a to that. Similarly, the portrayal of children on balance between the two and I think the Welsh television which is an issue that children and young Children’s Commissioner is working towards that people talk to me about a lot. There may be some balance. I would not want you to think that the things arising out of a report that she or he may Welsh Children’s Commissioner had not been able make on that, which may be comfortable or to have some very strategic influence as well, for uncomfortable reading, or advertising on television, example, on adolescent mental health services in which is a diYcult issue for government where there terms of reporting to the Assembly and completely are tensions for us as we think through the right way changing the policies that the Assembly had and the forward. Again, I think that might make for resources that are going in. Also, anti-poverty comfortable or uncomfortable reading. I think there strategies and very wide issues as well as the is absolutely no doubt that the Commissioner will be individual cases which have not bogged him down. independent and I am totally committed to children Margaret Hodge: I think he is doing a splendid job being very strongly involved in selecting and so this is no criticism but structurally I would have appointing the Commissioner. The only diVerence, some questions. It is not a criticism of the individual, which is where something of a myth has grown up his commitment or the way in which he is around the independence of the Children’s energetically pursuing the agenda that he has. I think Commissioner, is that God forbid there is another one oYcial report in three years, the Telling child death or a case of child abuse in a children’s Concerns Report, would to me feel a bit home or something like that, extensive child abuse, 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 19
4 May 2004 Rt Hon Margaret Hodge MBE MP where an individual case we believe has wider public not we would use the vehicle of creating an English concern and we want to launch a public inquiry Commissioner for England as a means of adding to around it. In those particular instances, it would be the powers of the Welsh Commissioner on non- appropriate to ask the Children’s Commissioner to devolved matters. However, when I met the undertake that inquiry. Another Victoria Climbie Northern Irish Commissioner and we had similar inquiry, God forbid, would be where the Secretary discussions, it was he who suggested and sought of State would ask the Commissioner to do it. The wording on the Bill to clarify and strengthen the Commissioner would have all the relevant powers to relationship between the Commissioners in the four demand people to come and give evidence and countries. It was we who were willing to do that. To release information, all those sorts of things. If the correct what I said a little earlier, it was civil Commissioner in the real world were to say, “I do servants, devolved administrative oYcials rather not want to do this” I do not think the Secretary of than the Commissioners themselves, who were not State would force it on her or him but that is the only so keen to accept the duty to co-operate that we felt diVerence where people are now latching on to say, would be a good way of trying to bring together in a “This is not an independent Commissioner.” What more coherent way the four Commissioners. Thank we have tried to say is, were we ever to need another you for the opportunity to correct that. public inquiry of that sort, the obvious person or oYce to undertake that would be the oYce of the Q101 Dr Francis: “Non-negotiable” is a word that Commissioner. That is the only diVerence and that would have been used in the days of undemocratic is being interpreted, I think, in an unfair way. devolution. Now we have democratic devolution. Surely these issues are all negotiable? Q97 Chairman: Can I refer to an example? What if Margaret Hodge: This is the government view. The we had a dreadful case as you outline and the English government view is then reflected in the clauses that Commissioner wanted to be directed by the we have put in the Bill that is being currently Secretary of State to have an inquiry and the considered through the parliamentary process. Secretary of State said, “No, we do not want an Clearly, we will have to see how that parliamentary inquiry”? That would be limiting the powers of that process works its way through the system, but the so-called independent Commissioner, would it not? government view is that this is not a vehicle in which Margaret Hodge: Theoretically, yes, but in reality if we are prepared to extend the power of the Welsh there was overwhelming demand for a public inquiry Commissioner on non-devolved matters. which was supported by the Children’s Commissioner it would be extremely diYcult for Q102 Hywel Williams: In your memorandum you people to resist. That is the reality. state that children were consulted widely in advance of the publication of the Children Bill. Can you give Q98 Chairman: Can I move on to the consultation us examples of how you consulted Welsh children, in you have undertaken in regard to the Bill? We have, particular with regard to the establishment of the as you acknowledge, had an eVective Children’s Children’s Commissioner for England? Commissioner in Wales for three years and it is Margaret Hodge: We put a lot of eVort into ensuring widely acknowledged by all kinds of people involved that we heard children and young people’s voices in in the issues that he, in this case, has made a great the consultation process on the Green Paper. As I success. Why did you not consult him when you were said earlier, we had 4,500 responses and two-thirds drafting the Bill? of those were from children and young people. I Margaret Hodge: I certainly had meetings with him. think we were successful in ensuring that we heard their voices. Q99 Chairman: But you did not consult him. He asked for the meetings. Q103 Chairman: Were they self-selecting? Margaret Hodge: I cannot remember who asked for Margaret Hodge: No. On the whole, the way we did the meetings but I certainly consulted him and I it was through voluntary organisations who work know that my oYcials are in constant with children. We contracted with them to convene communication with him, as indeed I consulted the a number of group sessions, consultation processes Commissioner in Northern Ireland. I have yet to of a whole variety, to make sure that children had an meet the newly appointed, in-post Commissioner in input and we produced a document specifically for Scotland. children and young people. Every time I went out to talk about the Green Paper, I tried to make sure Q100 Chairman: He did ask to see you and you where appropriate that I had a separate session with kindly met him but he put to you the kinds of things children and young people who came to the events that we have been putting to you and probably a few that I attended. more that we are going to get round to eventually. When he asked you about the independence of the Q104 Hywel Williams: Can you answer the second English Commissioner and the eVect that was going part of my question about consulting with Welsh to have on his job, you described the relevant section children? Did you consult with any Welsh children? of the Bill as being non-negotiable. Is that correct? Did they, for example, provide submissions or did Margaret Hodge: I did read that little bit of evidence some of the groups that you contracted out to talk that he gave you. My recollection is that the only to Welsh children about the establishment of a part that I said was non-negotiable was whether or Commissioner for England? 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 20 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP
Margaret Hodge: We did not specifically consult Margaret Hodge: To be honest, we had a discussion with Welsh children because, as you will know, most about CAFCASS because that was an issue where of the propositions that we have in the Green Paper we were devolving new functions to Wales, so there do not impact on children’s services for children in was quite a long discussion on that. I made my view Wales. Again, a third of the Bill is taken up with clear on the way in which the Welsh Assembly and clauses relating to children’s services in Wales, so I Welsh ministers had chosen to organise children’s might suggest to you that it would have been services in Wales, but I never challenged their right appropriate for the Welsh Assembly and ministers to take a diVerent view to ours. there to undertake a consultation, which I am sure they did. I just do not have information on it. Q111 Julie Morgan: Surely the key issue about Certainly our consultation impacted on the way we consultation is on the UK non-devolved matters and have framed clauses in the Bill. whether you had any consultation with children in Wales about the proposals for non-devolved matters Q105 Hywel Williams: The Bill impacts on Wales to relate to the English Children’s Commissioner, but you cannot tell us whether you consulted at all rather than the Welsh clauses generally? on the Green Paper? Margaret Hodge: I will write to the Committee after Margaret Hodge: Because it is a matter for the Welsh I have gone back to see whether we did any specific Assembly and Welsh ministers. Those clauses on the groups with children in Wales1. As I speak to you, I whole have been put to us by the Welsh ministers do not know whether we did. I was a little who wish to pursue the development of children’s disappointed that the Welsh Commissioner did not services in Wales in that way. Interestingly, talking submit a response to the Green Paper proposals. We about devolution, I personally do not agree with had a very thorough submission, for example, which everything that is in there, but that is devolution. I I read from the children’s rights director for CSCI. do not agree with the fact that they are not creating He had obviously gone to huge lengths to consult directors of children’s services in Wales, but that is looked after children and gave an extremely valuable their choice. That is the route down which they have piece of evidence to us about children’s views chosen to tread. I respect that. It does not mean I resulting from the work he does with looked after have to agree with it. children. I would have hoped that the Welsh Commissioner would have undertaken a similar Q106 Hywel Williams: You cannot assure us that consultation exercise. That would have seemed to children in Wales were consulted on the Green me appropriate. Sadly, we did not get a response Paper. Can you assure us that children in Wales were from the Welsh Commissioner to the propositions in consulted through the medium in Welsh? the Green Paper. Margaret Hodge: I do not think it was my job to consult them. The clauses that have been put Q112 Dr Francis: If we can come back to the issue of forward in relation to services for children and devolution and tidiness again, some people might young people in Wales were on the whole put say that the Bill as it stands appears to be drafted for forward by the Welsh Assembly and Welsh the convenience more of ministers and civil servants ministers. Therefore, the duty is on them to consult rather than for children. I know it sounds a bit harsh. their population. Why have you not decided upon a simpler procedure that provides Commissioners with full responsibility Q107 Hywel Williams: You would not think it for their part of the United Kingdom? In your earlier reasonable to ask them if they had consulted? That replies, you seemed to be beginning to get towards a would be a matter for them, would it? compromise solution whereby our Welsh Margaret Hodge: I think that is a matter for them. Commissioner would be taking up non-devolved issues. The end result is questionable because Q108 Hywel Williams: For legislation that you are sometimes perhaps they would not be resolved. bringing forward? Where do you think that kind of untidiness would Margaret Hodge: On their behalf, because that is the end up if expectations are raised on non-devolved way legislation is enacted. issues? Surely it would be far better to simply tidy it all up and say that the Welsh Commissioner would Q109 Hywel Williams: Therefore, you could not tell deal with all Welsh issues? You would then be doing us what the views of any children from Wales might a great favour for democratic devolution across the have been on the Green Paper or on the Bill? whole of the UK. Margaret Hodge: I cannot pull them out now, no. It Margaret Hodge: Can I give you two answers? First may be appropriate for you to write to the Welsh of all, I think it is to misunderstand the whole ethos minister. I cannot remember whether you asked her and direction of the formal agenda we have for that question when she appeared before you but I am children’s services to suggest that we are putting sure she undertook some consultation with children forward a programme of change which meets the in Wales before she put forward the propositions interests of civil servants, ministers and providers of that are in the Bill. services to children, local authorities, anybody you can name. The whole central thrust of our reform is Q110 Chairman: Since they did all the consultation to put the child at the heart of everything we do, to and you did not know anything about it, did you accept all the clauses they gave you? 1 Supplemetary evidence on page Ev 39. 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 21
4 May 2004 Rt Hon Margaret Hodge MBE MP ensure that that child’s voice is heard and that we outputs he has made it is a little disappointing. I build services around the needs of the child. Much of hope to see something diVerent from the what the Bill does is to provide that legislative spine Commissioner in England. That is with a diVerent to ensure that we can then pursue our reform agenda view of what we want the Commissioner to do. I in the way services are delivered in every locality. I completely, utterly and totally respect the decision completely take issue with what you think we have of Welsh ministers and the Welsh Assembly to go been about. We have not been about that. What I did down a diVerent route. say—and perhaps I ought to repeat it so that the Committee is completely clear—is it could well be Q114 Mr Edwards: Mr Clarke, the Commissioner that the Welsh Commissioner would want to raise an for Wales, said that he would not accept the sort of issue around a non-devolved area. He could raise powers that are being proposed for the English that directly with the UK Government department Commissioner and he believed that neither would or he could, when we have a UK Commissioner in the Scottish nor Northern Ireland Commissioner place, raise it with the English Commissioner. What accept those powers. What would you say to him he cannot do is raise an individual case. He cannot now, given the proposals for England? take forward an individual complaint. An issue may Margaret Hodge: My view is that it is a very arise out of some instances of children writing to important post that we are establishing. It is an you, talking to you about things that have happened exceedingly vital capacity in ensuring that children’s to them. As we all do in our surgeries, we often use voices are heard and there is a strong influence from those individual people who come to see us to raise children and young people on the development of the wider policy issue. That is perfectly legitimate policy and programmes. I would like the without being seen as the route by which the Commissioners to get on, when we have appointed individual complaint is resolved. That is what I ours as we intend to do swiftly if the legislation is meant. Is this an issue of just tidying up? Were it successful and gets onto the statute book, with such, probably we might concede the point that the working out ways of working together with their Committee has made very strongly and about which diVerent remits to the benefit of all children in the we have had representations from a number of other whole of the United Kingdom. I think this is an bodies. We think it is inappropriate in this area to utterly exciting, important opportunity. It may not give the Welsh Commissioner the powers he has on have given the Commissioner in Wales the extended Welsh issues around non-devolved issues and that powers that he sought, but nevertheless it does not remains our position, I am afraid. Although that diminish his powers. I think it makes it easier for him leaves us with what some may consider some to work and I think it gives a strong children’s untidiness, I just believe that is the world of presence in the whole of the United Kingdom. devolution in the UK context and it should be something we celebrate. It should not be something Q115 Mr Edwards: Do you acknowledge however that we find diYcult to live with. that the cost of the English Commissioner would be about £2.5 million which represents about 24 pence Q113 Dr Francis: I am surprised by the your per child, but in Wales the current funding observations on the Welsh Commissioner, as Mr represents about £2 per child? Why do you think the Caton said, caricaturing his role. I have not heard level of funding is so diVerent and do you accept that that critique at all from anyone in Wales. I have not the estimate may be unrealistic? heard ministers in Wales or advocacy bodies in Margaret Hodge: It is the best estimate we can make Wales saying that the Commissioner seems to be as we plan for putting into place the English overly concerned about individual cases and not the Commissioner. The roles and functions are very big picture. We have always been impressed by the diVerent. The Welsh Commissioner is having to way in which he focuses on the big picture. Would spend time and money on pursuing individual you care to comment on that? complaints. The English Commissioner will not be Margaret Hodge: All I am looking at is the evidence doing that same job. I had similar criticism when we I have on what is produced in the three years that he established the Disability Rights Commission. has been in oYce. I would reiterate again that he People were worried then that the funding that we himself said to you he currently has a case load of provided would be insuYcient for the job that we about 500 and it is a growing case load. If you plot were giving the Commission to do. What I said when it over time since he has been in oYce, that we set that up I will say now we are setting this up. individual case load has grown and he has so far We need to reflect as we develop the role and oYce produced one report. It is an important report. I of the Commissioner to see that it is properly funded know he is working on three other inquiries, one to do the job we are asking of it. We will have to around children’s toilets which is really important, come back to it if we get it wrong. This is our best one around children’s access to transport which I estimate at this point of appropriate funding to carry think is also important and one around the out the job we have asked for. particular teacher in Wales who committed suicide. For me, looking back at it—and I do not live in Q116 Mr Edwards: Can I therefore ask whether you Wales so it is diYcult for me to pick up the vibes that could reiterate the point about establishing assistant you pick up or what comes out in Welsh newspapers commissioners, say, for the regions of England and or in the Welsh media; it may be a very diVerent whether this might be looked at or reviewed at perception from the one I have—and looking at the some time? 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 22 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP
Margaret Hodge: That will I think be a matter for Margaret Hodge: No; he could ask the Welsh the Commissioner himself or herself. Children’s Commissioner to undertake it. The Welsh Children’s Commissioner could refuse. Q117 Mr Edwards: Is there any statutory review built in? Q124 Julie Morgan: The Welsh Children’s Margaret Hodge: I do not think so. As with all new Commissioner would not have to carry it out? institutional settlements, we will have to come back Margaret Hodge: No. to it and see if it works in the way that we intended. No doubt children will make it clear to us if it is not Q125 Julie Morgan: The power of direction which doing the job they want. appears to be there for the English Children’s Commissioner for individual cases would not extend Q118 Chairman: Can I explore the independence to the Welsh Children’s Commissioner? again, Minister? It has just occurred to me that you Margaret Hodge: No, but it may be appropriate and seem to be very critical of the Welsh Commissioner’s the Welsh Commissioner may welcome the ability and concentration on individual cases. opportunity to do such an inquiry. Margaret Hodge: I am not critical of it; it is just not how I envisaged the English settlement. I have complete respect for— Q126 Julie Morgan: I am sure the Welsh Children’s Commissioner may want to do such an inquiry but I think he would probably feel that his independence Q119 Chairman: Just suppose the English was compromised very strongly if the Secretary of Commissioner decided to look at individual cases. State had the power to direct— What would you say to him or her? Margaret Hodge: The Welsh Commissioner could Margaret Hodge: That would not be within their say no. remit. Q127 Julie Morgan: The Secretary of State has no Q120 Chairman: They are excluded, so they are not power over the Welsh Children’s Commissioner to as independent as the Welsh. ask him or her to do an investigation into non- Margaret Hodge: That is because we have a whole devolved matters? array of diVerent— Margaret Hodge: No. What I was trying to address in that particular paragraph was the concern I know Q121 Julie Morgan: It is important to remember the Committee has felt, that if there was an inquiry that the Commissioner has also produced two taking place in an institution in Wales it would be annual reports which were debated at the Welsh more appropriate for the Welsh Commissioner to Assembly, so I hope that your oYcials have made oversee that inquiry than the English Commissioner those available to you, besides this one report you and that is possible in the legislation. There is no refer to. In paragraph 13 of your submission, you duty on the Welsh Commissioner to undertake such argue that if the Secretary of State felt it appropriate an inquiry. The reality is, even in England, if the he could appoint the Children’s Commissioner for English Commissioner said, “I do not have the time Wales to undertake an inquiry in Wales; yet nobody or resources”, some very good, coherent reason for in Wales itself is able to direct the Children’s not undertaking it, I do not think this would be Commissioner in Wales. Do you think it is forced on the English Commissioner. No doubt appropriate for there to be a power with the some other appropriate person— Secretary of State to direct the Children’s Commissioner in Wales which is not available to the Q128 Julie Morgan: That bit of the Act does cause a government in Wales? great deal of concern amongst all the voluntary Margaret Hodge: I am afraid this is another bodies. There is this sort of feeling that the devolution issue, because this would be directing the Commissioner is not entirely independent and that Commissioner in Wales on a non-devolved matter. he or she is bound in with the government in a way that he or she can be directed to do something. Q122 Julie Morgan: Yes. Margaret Hodge: The Welsh Commissioner? Margaret Hodge: That is how, on a non-devolved matter, the UK Government determines policies and Q129 Julie Morgan: The English Commissioner. how services are delivered. It would only be in that Margaret Hodge: The only area in which there will context where it would be in the authority of the UK be a duty is the duty to carry out those inquiries. You Secretary of State to decide how to do a particular can interpret that as being non-independent. I do inquiry on an issue which is a non-devolved issue not. I see it as a specific area where, if you think in Wales. about what is the appropriate body to carry out those sorts of inquiries, you must think that the Q123 Julie Morgan: If there was an issue in a young Children’s Commissioner ought to be, so we have oVenders institution or some sort of juvenile justice provided that by creating a duty within the establishment in Wales and the Secretary of State framework of the legislation. There is no duty on the here could direct the Welsh Children’s Welsh Commissioner to agree if asked to undertake Commissioner— an inquiry on behalf of the Secretary of State. 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 23
4 May 2004 Rt Hon Margaret Hodge MBE MP
Q130 Julie Morgan: Say it was felt appropriate for Margaret Hodge: We are embarking on the first the Welsh Commissioner to undertake an inquiry stages of developing a Children’s Commissioner and he agreed to do so. Would that inquiry then be capacity in England and the UK. I certainly want to entirely left up to him to carry out exactly as he have continuing conversations, not only with the wanted to? Welsh Commissioner but also with the Northern Margaret Hodge: Yes. Ireland and Scottish Commissioners, to hear from their experience and to learn from what they do. I will take up your invitation and have further Q131 Julie Morgan: If the Welsh Commissioner can conversations with him. I just have not met him undertake an inquiry on non-devolved matters since. We have met two or three times on various under the direction of the Secretary of State—but occasions and we have had the one meeting together. now we are clear it would not be by direction; it I certainly will do that and if I have the wrong end of would be by agreement or request—why could he the stick I will reflect on that. not do that independently of the Secretary of State in any case? Say there was a child in youth justice in Q134 Mr Caton: That is very generous. Thank you. Wales and he felt there should be an independent Your memorandum states that the Government investigation. What problem would there be? anticipates the two Commissioners will want to set Margaret Hodge: It is a non-devolved issue. It is this Y out their working relations in a memorandum of di culty of it being a non-devolved territory. understanding or a concordat. However, the Commissioner for Wales was concerned that this Q132 Julie Morgan: I know he has been in prisons could undermine his independence. How would you in Wales, for example, and he has been approached respond to his concerns? about non-devolved matters already. If he felt it was Margaret Hodge: I read that in his evidence too and necessary to have some sort of inquiry, he would not I was slightly puzzled by that, because it seems to me be able to do that? that there have to be some bilateral discussions and Margaret Hodge: No, but he would no doubt make some discussions between the four Commissioners. representations to the relevant department, to the They need to get together to work out how they Welsh Assembly, who could then make work best together to ensure that children’s interests representations to the UK Government, to the UK are best represented. If that is reflected in a Children’s Commissioner, who could then make memorandum of understanding, that is a clear way representations to the Secretary of State. There is a in which people can operate over time. I do not think range of routes open to him if he felt that such an it interferes with the independence of the inquiry were appropriate. Commissioner at all. It just seemed to us a sensible way of working. I was a bit puzzled by that bit of his evidence. Q133 Mr Caton: I would like to ask you some questions about the relationship between the new Q135 Mr Caton: There are two aspects. One, if he English UK Commissioner and the Welsh was acting as an agent for the UK Commissioner, he Commissioner. Before I do that, I would like to press loses some control over his work. The great principle you, because what has come out this afternoon is the issue, the one we have dealt with to some extent, is clarity of your rationale. We would argue, and I that, if the Secretary of State directs the English think most people in Wales would argue, that it is Commissioner to do a certain review or inquiry and based on a false premise. In paragraph four of your the memorandum of understanding says that the written submission, you talk about preferring an Welsh Commissioner will do that as regards Wales, outcomes based approach to a rights based a Commissioner whose independence has been approach and a strategic role rather than one jealously guarded in Wales is now doing work for the supporting individual cases. I think you have created UK Secretary of State for Education. a false dichotomy there. The experience in Wales is Margaret Hodge: If that is an issue, that needs to be that the Commissioner does deal with individual reflected in the way in which a memorandum of cases—though as Ms Morgan has pointed out understanding or another equivalent document is mostly directing those individual cases to the drawn up between the Commissioners. If that is a appropriate advocacy, agency or whatever—and the genuine issue of concern to him, that needs to be strategic role is there. You said you read the evidence reflected in that document. of the Commissioner and, as you know, we took evidence from the Assembly Minister, Jane Hutt, on Q136 Mr Caton: You have suggested this afternoon the same day. She told us that the bulk of the that the Commissioner in Wales can talk to the UK Children’s Commissioner for Wales’s influence has Government departments and the Wales oYce as been on policy development locally and nationally well as the Assembly. How will this work? How will and very clear examples are coming through. Can I these arrangements be formalised? Will the Wales suggest that it might be worth your while going back, OYce or the relevant UK department be required to talking to the Minister, talking to the Commissioner respond? and his staV and finding out what is really happening Margaret Hodge: What I was describing was current on the ground in Wales. I said “caricature” before arrangements, not new arrangements proposed in and I stick with it. You really do not have a picture the body of this Bill. Interestingly enough, I do not of the real experience in Wales, as I understand it. think these arrangements have been used so far in a 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 24 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP formal way. No doubt there have been informal Q140 Chairman: I really think that is a red herring. conversations. I read the evidence from the Welsh There are all sorts of other areas where it could be Commissioner that he had had some conversations very vague and there could be diYculties with what around the Criminal Records Bureau and is on oVer at the moment. CAFCASS. No doubt those were issues which he Margaret Hodge: Other muddles, perhaps. raised with those two bodies which were informally resolved in his negotiations with those two bodies. There is no proposition on the face of this Bill which Q141 Chairman: Indeed. What we can see is a would lay down rules as to how those relationships situation where we have a Commissioner in Wales would be pursued. Are you looking for something? who can take up individual cases, except in non- devolved areas; whereas if that person was given the extra powers that Commissioner could take up Q137 Mr Caton: Most of us here would perhaps individual cases in the non-devolved areas. At the celebrate devolution. We can imagine a situation moment, that is not being covered. There is a gap. where we had a change of administration, but the Margaret Hodge: I have been a localist for much of practice at the moment would be that one way or my political life and I just think celebrate diVerence. another the communications both ways would be Chairman: Let us not celebrate reductions in perfectly practical. A future government could people’s rights and responsibilities. renege on that. Margaret Hodge: Maybe I should give this assurance: there is absolutely nothing in this Q142 Mr Caton: In the Second Reading debate on Children Bill or in the legislation that we are putting the Children Bill in the Lords, Baroness Ashton forward to Parliament which diminishes or stated that the Children’s Commissioner for interferes with the role of the Welsh Commissioner England would have no physical presence in Wales. as it is currently laid out and implemented. If However, you state in your memorandum that both anything, I think there is an enhancement to his role. Commissioners have a clear duty to ensure that children are aware of them and what they do, and Q138 Chairman: It is nice to hear that but that is not how they can communicate with them. In the what the Children’s Commissioner for Wales thinks. absence of a physical presence, how will the UK Margaret Hodge: I will write to him and say that to Commissioner publicise or promote his or her work him. He should raise those issues with me. Also, in Wales? there is nothing in the Bill which extends his powers, Margaret Hodge: I am not going to prescribe that, to which is what he was seeking, but there is nothing be absolutely honest. That will be an issue that the that diminishes them. Commissioner, once appointed, will have to decide for himself or herself. Having a Welsh OYce seemed to Baroness Ashton—and I agree with her—not the Q139 Chairman: It is also what we were seeking and best use of resources. I hope that the Commissioners I still think that is a possibility because of all the will sort out a way of working between themselves things we are talking about. It is not devolving which makes sense for children in Wales. Part of it power to the Assembly; it is giving the Children’s will be sharing information that they get about Commissioner for Wales the right to represent children’s views. Part of it will be the right of access Welsh children. We are not talking about him to the Welsh Commissioner and the right of access parading into England to start messing around with to the English Commissioner around non-devolved what goes on in England, any more than we want the issues. It is just going to be on a common sense basis, English Commissioner to interfere with what we but we do not want to prescribe that. We are have at the moment in Wales. concerned to have an independent, English Margaret Hodge: If you take the criminal justice V Commissioner. The last thing I want to do is instruct system and the youth o ending institutions, I have him or her how they should operate. not looked at the figures and I do not know how many youth oVending institutions there are in Wales; you probably do, but my guess is that they Q143 Mr Caton: If the government fails to get that will not be peopled by Welsh children alone. They sort of concordat/memorandum of understanding will be peopled by children from across the UK. approach and the Welsh Commissioner said he That is the practical diYculty we face, if I am honest. really felt that he could not act to deal with the non- If we were to go down the route that you suggested devolved matters on behalf of the UK and we said that he had the right to extend his Commissioner, do we assume that the English powers and his remit there, what does he do? Commissioner or the UK Commissioner will act Represent the Welsh children in the Welsh directly? institution? The Welsh children who are in youth Margaret Hodge: The English Commissioner will be oVending institutions in England? The English under a duty to ensure that the voice of children children in the Welsh institutions? It becomes a very across the UK is heard on non-devolved issues. If he muddled area and I genuinely believe that the right or she decides to carry out their duty by an way to pursue that argument is through an argument agreement with the Welsh Commissioner, fine. If of what is appropriate to be devolved to Wales that agreement cannot be completed, the English around criminal justice issues, rather than what is Commissioner would have to find other ways to appropriate to be devolved in this very limited ensure that children in Wales’ voices are heard on sphere of— non-devolved issues. 9624232002 Page Type [O] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Welsh Affairs Committee: Evidence Ev 25
4 May 2004 Rt Hon Margaret Hodge MBE MP
Q144 Mr Caton: I take your point earlier about not Margaret Hodge: It is neither an omission nor an patronising children but I honestly think if you have oversight. The protocol around ensuring that access to two Commissioners serving them with diVerent the Welsh language is there will be relevant to the work areas of responsibility patronising is not going to be of the English Commissioner. In my constituency, I the problem. Confusing them is going to be the have probably 170 diVerent mother tongues so this is problem. not an issue just about the Welsh national language. In Margaret Hodge: That is your view. What I said to a multicultural society, it is an issue about the whole you was that there are whole areas in the devolution range of other tongues that children grow up with. settlement where people have to have their Many of the children in my constituency, when I first individual voice heard and pursue their individual meet them, have absolutely no English at all. issues in diVerent fields. This is just one. I think children will be fine with that. It is not an issue that Q151 Hywel Williams: The legal status of the Welsh has been raised with me personally by children or language is somewhat diVerent from the status of other young people. They talk about lots of things to me. languages, apart from English of course. Can you give They do not talk about that. us some specific information about what resources you have allocated to the provision of Welsh language Q145 Mr Caton: But we have not established information and how that will be supported by the whether any Welsh children have communicated English Commissioner? with you about this Bill. Margaret Hodge: We will certainly abide by our legal Margaret Hodge: I meet regularly, for example, with obligations and I cannot give you that information oV the UK Parliament. It has not been raised as an issue the top of my head but I will let the Committee know in that forum. I meet regularly with children. I do not in writing2. ask if there are Welsh children there. I do not particularly ask that question. Maybe I should. I meet Q152 Hywel Williams: Can you confirm that all regularly with children in a range of settings organised documentation on UK-wide matters will be available by voluntary organisations. I meet with national in hard and electronic copy in Welsh in Wales? organisations that represent children’s voices or look Margaret Hodge: If that is our legal duty, we will do after children and those sorts of groups. It honestly has that. not been raised with me as an issue.
Q153 Hywel Williams: I am concerned about the Q146 Mr Caton: ThiswouldonlybeanissueforWelsh resource issue. Have you any idea how much that children, would it not? would cost? Margaret Hodge: WhenItalktosomeofthe Margaret Hodge: No. What I am being advised is that organisations that represent the nation’s children, you the Commissioner will be subject to the requirements would have thought I would have heard it. I have not. of the Welsh Language Board under the Welsh Mr Caton: You will certainly hear it from the Welsh Language Act, so we will no doubt abide by that. organisations that represent children because the evidence we have had from every one of them is that one of the things they take into account is the Q154 Hywel Williams: Have you consulted at all with aspiration that there should be a single point of the Welsh Language Board before this meeting? reference for children. The obvious point of reference Margaret Hodge: I think that is a matter for the in Wales is the Welsh Commissioner. Commissioner. Before this meeting?
Q147 Chairman: When was the last time you met the Q155 Hywel Williams: Before the Green Paper and UK Youth Parliament? before the Bill? Margaret Hodge: Probably about a month ago. Margaret Hodge: No. I think that is a matter for the Commissioner. I have to reiterate that in the UK and in England there are hundreds and hundreds of mother Q148 Chairman: Have you ever met the Funky tongue languages. Dragon, the Welsh equivalent? Chairman: With respect, Minister, Welsh has a Margaret Hodge: I have not met them separately, but particular status. It is an oYcial language of the United they come in as part of the UK Parliament. Kingdom.
Q149 Chairman: There are issues there. Q156 Hywel Williams: There are requirements to draw Margaret Hodge: I do know about that. If you up a language scheme as to how services will be remember, we talked about those the last time I was provided through the medium of Welsh and English here. on the basis of equality. That applies to oYcial bodies outwith Wales, not just to bodies in Wales. I am just Q150 Hywel Williams: About a third of the children in reflecting my concern that the resources might not be Wales speak Welsh and in my constituency it is about there. The Children’s Commissioner for Wales was 93%. I can see no reference in your memorandum to concerned that his oYces might be called upon to services for the medium in Welsh by either the Welsh provide Welsh language support and that might have Commissioner or the English Commissioner. Is that a deliberate omission or an oversight? 2 Supplementary written evidence on page Ev 39. 9624232002 Page Type [E] 22-07-04 21:27:02 Pag Table: COENEW PPSysB Unit: PAG1
Ev 26 Welsh Affairs Committee: Evidence
4 May 2004 Rt Hon Margaret Hodge MBE MP some impact on his resources. Can you confirm that Q162 Julie Morgan: In the figures that we have, the you will not be calling on the Children’s Commissioner costings for a Welsh language have not yet been for Wales? included? Margaret Hodge: That is entirely a matter for the Margaret Hodge: Let me reiterate. The English Commissioner. It is not an issue which I am going to Commissioner will have to draw up a scheme because prescribe from central government in determining how they will have to abide by the Welsh Language Act. she or he works and the way in which they implement Our costings are pretty broad range. They are not their legislative responsibilities. It is really entirely not detailed, down to the last penny. Our costings are for me. based on our best estimate at this juncture of the money that she or he will need to carry out their duties properly and that will include their duties in relation to Q157 Hywel Williams: You cannot confirm that there the Welsh language. will be suYcient resources to provide information? Margaret Hodge: The Commissioner will have to meet Q163 Julie Morgan: I think that is quite important the requirements under the Welsh Language Act. because a lot of the voluntary bodies, when they have had to implement the Welsh Language Act, have had to bring additional resources in because of having to Q158 Hywel Williams: You cannot confirm that there publicise in two languages and provide a service in will be or is a language scheme which lays out those Welsh. If that has not been taken into account already, requirements as yet. Can you confirm that the it will probably mean that you will have to boost the Commissioner for England will be drawing up a budget in order to deliver a proper service to the language scheme and can you tell us when that might children in Wales. I was going to ask you about the be? United Nations Convention. Why does the Bill state Margaret Hodge: No. The Commissioner will have to that the English Commissioner may have regard implement his legislative duties. He or she will do what whereas the Welsh Commissioner must have regard, as he or she needs to do to abide by legislative I think is true for the other devolved bodies? Is this responsibilities. something that might be changed in the passage of the Bill? Margaret Hodge: We are listening incredibly carefully Q159 Hywel Williams: Public bodies have drawn up to the representations that have been made to us language schemes anything from immediately to around that. Indeed, time permitting, Baroness within five or six years of being asked to do so, as far Ashton is going to be taking amendments around this as I understand. Can you confirm that it is your issue tonight. intention that a language scheme will be in place Julie Morgan: We can be hopeful on that issue. immediately on the establishment of the Thank you. Commissioner’s oYce for England? Margaret Hodge: You are asking me to prescribe Q164 Chairman: On that slightly hopeful note, again the work priorities for the independent Minister, I hope that you have taken on board the Commissioner for England and I am not prepared to concerns that we have passed on to you. They are do that. What I am prepared to say is that the English concerns as well from our deliberations earlier. I do Commissioner will no doubt wish to abide by their want to welcome the CAFCASS devolution though. legislative responsibilities. That was very useful and I hope that perhaps as the Bill goes through further amendments might be considered. Certainly it would be useful if you liaised Q160 Hywel Williams: I am just reflecting the concerns with the Children’s Commissioner. One way or both of people in Wales that there should be a fully ways, he might be able to contact you on this issue and functional, bilingual service on day one rather than maybe you can allay his concerns and our concerns. waiting three, four, five or six years, and that there is a Margaret Hodge: Thank you very much. I enjoy perfectly adequate model for doing this in the way that coming to the Welsh AVairs Committee so thank you the Commissioner for Wales operates. It seems to me for inviting me. I am sorry we have this one little aspect that you are seeking to reinvent the wheel. of the Bill on which we do not agree but I do hope that Margaret Hodge: No doubt you will make those we can jointly agree and work through all those other representations clear to the Commissioner or— clauses which are extremely important for improving children’s outcomes, which I think are warmly endorsed and welcomed, I hope, by all members of the Q161 Chairman: It is not just a matter for the Committee. I look forward to further discussions no Commissioner when he or she comes into place; it is doubt with the Welsh Children’s Commissioner and also a matter for the costing which you must include in with yourselves. your consideration of the Bill, surely. As the Minister in charge of the Bill, it is a UK Bill and England covers Q165 Chairman: Can we ask when the Bill is likely to England and Wales there has to be a cost element to come before the Commons? this. I would have thought perhaps you ought to be Margaret Hodge: It depends. It is this session Bill but looking at that cost element before you even consider the precise date depends on how long it takes to go drafting the Bill. through the House of Lords. I am not in charge of the Margaret Hodge: Indeed, as I will have to look at all business managers in both Houses, but it is definitely sorts of elements. I agree with that. a Bill for this session. 9624231004 Page Type [SO] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
Welsh Affairs Committee: Evidence Ev 27 Written evidence
1. Written evidence from Jane Hutt AM, Minister for Health and Social Services, Welsh Assembly Government 1. This memorandum is in response to the Committee’s request for an account of the Welsh Assembly Government’s view of the relationship between the powers of the Children’s Commissioner for Wales and the “UK” Commissioner proposed in the Children Bill. 2. The particular issue into which the Committee is to inquire needs to be set in the context of the Bill as a whole. The Assembly Government very warmly welcomes the Bill and the provisions which it makes for children in Wales. It will allow us, for example, to take forward our partnership planning agenda for children and young people and will introduce a duty for the statutory partners to co-operate to improve the well being of children. In common with colleagues in England, the Bill will allow us to enhance the work of Local Area Child Protection Committees by placing them on a statutory basis as “local safeguarding children boards”, in line with Lord Laming’s recommendation in the Climbie Inquiry. On a similar basis, the Bill also includes an important new duty on local authorities to promote the education of looked after children and provision to strengthen current arrangements for the notification of private fostering to local authorities. In addition, the Bill sets out arrangements to transfer the functions of the Children and Family Court Advisory and Support Service (CAFCASS) in Wales to the Assembly Government in a way which mirrors the transfer of responsibility for that service to the Minister for Children in England. 3. A great deal of detailed work has been invested in bringing these proposals to the point where they have been able to be included in the Bill now before Parliament. I wish to set on record my own thanks to Ministerial colleagues and oYcials at the Department for Education for the ready assistance which has been made available during the discussions which have taken place. In doing so, I wish also to pay particular tribute to the work of Ministers at the Wales OYce. Without their assistance, the new safeguards of the interests of Welsh children which the Bill sets out could not have been secured. 4. The Welsh Assembly Government has taken a clear and consistent approach to the role of the Children’s Commissioner for Wales since the Assembly’s Health and Social Services Committee published its report on the subject on 31 May 2000. That report, which had all-party support, indicated that “the widest possible functions in respect of non-devolved policies and services should be explored”. More recently, in plenary debate on the Commissioner’s Second Annual Report on 5 November 2003, it was agreed by unanimous vote that the Assembly “calls on the Welsh Assembly Government to initiate discussions with the Westminster Government to confer on the Children’s Commissioner wider statutory functions.” 5. The UK Government has indicated that it does not wish to give the Children’s Commissioner for Wales a wider role in respect of non-devolved powers. Instead, the Children Bill proposes the creation of a Children’s Commissioner to promote “awareness of the views and interests of children in the United Kingdom”. This role will cover all functions in respect of children in England and all non-devolved or reserved matters in respect of children in Wales, Scotland and Northern Ireland. 6. The proposed role of the “UK” Commissioner does not take anything away from the role of the Welsh Commissioner. She/he will still be able to make representations to the Assembly about any matter aVecting the rights or welfare of children in Wales, including non-devolved issues. However, the Assembly Government regarded the Bill as an opportunity to extend the Welsh Commissioner’s more formal powers and our views in that regard are already a matter of record. Underlying our view has been the importance of ensuring that children and young people are clear about the lines of communication to the Welsh Children’s Commissioner on all matters aVecting them. 7. There are issues where this will be particularly relevant such as youth justice where both Commissioners might have a role to play. 8. One way forward would be for the Welsh Commissioner to be able to act on non-devolved areas in Wales in the same way as he does on devolved areas, thus becoming the initial point of contact on all matters. 9. To clarify the position the proposed arrangements for division of responsibilities are intended to reflect the devolution settlement and the separation of powers between the UK Government and devolved administrations. However the Welsh Commissioner is not the Assembly’s Commissioner but the Children’s Commissioner. That is why he was given oversight of the actions of the Assembly itself. This independence removes the necessity to follow the devolution-based separation of responsibilities. 10. It can be argued that there is a need to ensure consistency of treatment of non-devolved subjects across the UK. However, the devolution settlement is diVerent in each part of the UK, and the model of Commissioner proposed in the Children Bill is very diVerent from the existing ones in Wales, Scotland and Northern Ireland. The Bill thus recognises that diVerent models make sense in diVerent parts of the UK. From the Assembly Government’s perspective, the most important consistency is that one Commissioner should provide a clear and consistent point of contact for children and young people in Wales. 9624231001 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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11. If it does not prove possible to secure this clarity on the basis outlined in paragraph eight of this memorandum, an alternative approach could be sought through arrangements which would allow the Welsh Commissioner to act under delegated powers of the “UK” Commissioner in Wales. Such a way forward would have the advantage of ensuring that the Welsh Commissioner would continue to be the single point of reference for children and young people in Wales. 21 April 2004
2. Written evidence from Peter Clarke the Children’s Commissioner for Wales
Briefing document: impacts of proposals for a Children’s Commissioner outlined in the Children Bill 2004
Contents Introduction: the Children’s Commissioner for Wales 1 Child-centred and accessible 1 Scope of powers 2 Devolution 2 Current anomalies and inconsistencies 3 Children’s Commissioner for England: Part 1 of the Bill 3 Welsh AVairs Select Committee recommendations 3 Equal protection for children from physical assault 4 Commentary 4
Introduction The Children’s Commissioner for Wales was established under Part V of the Care Standards Act 2000. The Children’s Commissioner for Wales Act 2001 broadened the post’s remit and set out its principal aim, which is to promote and safeguard the rights and welfare of children in Wales. The Commissioner has express powers designed to enable him to be an informed and independent champion for Wales’ children, including those which allow him to access information, review and monitor the eVects of policies, proposed legislation and the delivery of services. He may also provide advice and assistance, and examine or investigate cases of particular children receiving regulated services. The post has an additional power of consideration and representation to the National Assembly (see Scope of Powers below), and has no power to overturn government decisions. Peter Clarke, the first Children’s Commissioner for Wales, took up his post on 1 March 2001, and his oYce became operational in Spring 2002. The three year period since the establishment of the post has allowed many aspects of the legislation to be tested, and proposals for their extension to be formulated.1 The establishment of an equivalent post in England has long been seen as a golden opportunity to ensure that children and young people throughout the UK are provided with the protection, services and opportunities they deserve. It is therefore disappointing that the model proposed falls far short of those in Scotland, Northern Ireland and Wales. There are significant concerns about the relatively limited powers of the post, and that there is also potential for confusion. This may mean that children in Wales as well as those in England may be disadvantaged in terms of the benefits the existence of such a post can oVer.
1. Child-centred and accessible A true champion of children and young people’s rights and welfare must be prepared to listen, hear and learn from them, and work in a way that is not at odds with how children, young people and their families experience their lives. The relevant legislation does not confine the Wales Commissioner’s role to what are usually considered to be children’s issues (eg health, education and social services), and means in practice that he must: — ensure that children and young people know where his oYces are and how to contact him (or his team); and they are encouraged to do so. — gather information on the views, opinions and experiences of children and young people which inform his work, and allow them to influence the work programme. — make sure that he and his staV are accessible to children and young people, and that actively work to meet children in their communities. — pay particular regard to children who are “hard to reach”. — have regard to the UN Convention on the Rights of the Child in the exercise of his functions.
1 For information on work undertaken and to download annual reports and other publications, visit www.childcomwales.org.uk 9624231002 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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The Commissioner has oYces in both South and North Wales, and must also comply with the Welsh Language Act 1993 in providing services to children and young people and dealing with the public, demonstrating that the English and Welsh languages are treated on the basis of equality. Specific eVorts are made to ensure that the communication and other needs of all Wales’ children are recognised in the work of the Commissioner and his team.
2. Scope of powers At the time of the establishment of the post of Children’s Commissioner for Wales, the approach was to limit his powers to the areas of responsibility devolved to the National Assembly for Wales under the Government of Wales Act 1998 and the National Assembly for Wales (Transfer of Functions) Order 1999. This means that matters such as youth justice, the benefits system and police are excluded from the Children’s Commissioner for Wales’ remit, although the Commissioner does have the power to make representations to the National Assembly for Wales about any matter that aVects a child in Wales. To some extent this has made it possible to take a holistic view of children’s rights and needs, although the non- devolved/devolved distinction has impeded action in some cases (see Current anomalies, below). Given that the diYculties experienced by children and young people do not often fall neatly into devolved or non-devolved areas, or even into one area of service, the Commissioner has sought to establish working relationships and memoranda of understanding with a number of bodies technically outside his remit. For example, regular meetings are held with the Police, and the Commissioner has visited prisons. These working relationships may be undermined if these policy and service areas are formally designated to be ones for whom the “UK” Children’s Commissioner would be the relevant authority.
3. Devolution The Children Bill is consistent with the approach of linking the work of the Children’s Commissioners to the respective powers and responsibilities of the political institutions in each of the UK countries. However, those powers and responsibilities diVer substantially. Consequently, what this means to children and young people is anything but consistent, since the statutory powers vested in each Children’s Commissioner diVer significantly also. As the Bill stands, for children in Wales, the potential confusion and disparity in the kinds of action possible by each of their Commissioners is at its greatest. To limit the opportunities the Commissioner has to act to promote and safeguard the rights and welfare of Wales’ children and young people, according to the responsibilities of a political institution, is not only inequitable in terms of children’s rights, but is impractical. Restricting children’s rights by reference to government departments is artificial, ineYcient and inappropriate, particularly post-devolution.
4. Current anomalies and inconsistencies Not all children are able to receive an equal service from the Children’s Commissioner from Wales despite similar circumstances. This may even be the case where they are receiving services from the same provider. For example, two children from the same street, but resident in Hillside secure accommodation in Neath, might be aVected by this anomaly. One might be placed by the local authority, and the other via the youth justice system. The Commissioner has extensive powers in respect of the child placed by the local authority, but only the power to make representations via the National Assembly in respect of the other child. The establishment of the new “UK” Children’s Commissioner as set out in Part 1 of the Bill oVers such a child or young person no greater support or protection than at present, because of the role’s limited powers. There are anomalies between the respective responsibilities of the central and devolved governments, and actual practice on the ground. For example, the Police are full members of Area Child Protection Committees and subject to the All Wales Child Protection Procedures. They undertake child abuse investigations with social services. While the Commissioner has full powers in respect of the other members of the ACPC, he has no powers in relation to the Police, other than to make representations. The Children’s Commissioner for Wales recently held a public inquiry into how serious allegations of sexual abuse at a secondary school in Wales were investigated (the Clywch Examination). Although he could examine all the documentation held by social services, education, the WJEC and the school, he did not have the power to enforce disclosure of the police internal review of their investigation in 1991. This document could have assisted the Inquiry.
5. Children’s Commissioner for England: Part 1 of the Bill As it stands, the Children Bill outlines a Children’s Commissioner for England without many of the tools made available to the Children’s Commissioner for Wales via the Care Standards Act 2000, Children’s Commissioner for Wales Act 2001 and the secondary legislation. The principal aim is of promoting “awareness of the views and interests of children” and a lack of focus on the human rights of children. The 9624231002 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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role also lacks the strength and independence of the Commissioner for Wales, and can only undertake formal investigations with strong inquiry powers if directed by the Secretary of State. There is the potentially confusing relationship with other UK Children’s Commissioners, and an actual overlap on non-devolved issues due to the additional power the Children’s Commissioner for Wales has to make representations to the Assembly. The Government has already indicated that the Children’s Commissioner for England will not have a presence in Wales, and this will present diYculties in terms of accessibility.
6. Welsh AVairs Select Committee recommendations The report of the Welsh AVairs Select Committee, The Empowerment of Children and Young People in Wales concluded that “the current limits on the remit of the Children’s Commissioner for Wales do not serve best Welsh Children and young people in the Youth Justice System. We recommend that the powers of the Children’s Commissioner for Wales be extended to those Welsh children residing in the secure estate outside of Wales. A suitable vehicle for enacting that change would be the proposed legislation to establish a Children’s Commissioner for England”, and further that the committee “do not believe that the interests of children and young people in Wales would be best served by conferring powers over them, with regard to reserved matters, to a Children’s Commissioner for England. We recommend that the Government include in any Bill to establish a Children’s Commissioner for England, clauses to extend the powers of the Children’s Commissioner for Wales to cover all non devolved areas of policy for children and young people in Wales.”
7. Equal protection for children from physical assault It is unfortunate that a clause repealing the defence of reasonable chastisement currently available to those who physically punish children was not included in the Bill. The Commissioner believes that without the removal of this defence, the many improvements and safeguards proposed will be undermined. The Children’s Commissioner for Wales is a member of the Global Initiative to End All Corporal Punishment of Children and of “Sdim Curo Plant/Children are Unbeatable”. The commitment of the Welsh Assembly Government to make real its statements calling for a diVerent approach to parenting and encouraging good behaviour is to be welcomed; but legal reform is necessary in order to avoid mixed messages. AVording children equal protection from physical assault is consistent with the UN Convention on the Rights of the Child. Article 19 of the Convention on the Rights of the Child requires States to protect children from “all forms of physical or mental violence” while in the care of parents or others. The Committee on the Rights of the Child has consistently interpreted the Convention as requiring States to protect children from all corporal punishment and has recommended that prohibition should be accompanied by public education to promote positive discipline. Article 19 of the Convention is specifically relevant, but such a change in the way adults relate to children and young people will have far reaching impacts, and is necessary if such a cultural shift is to be achieved. It would reduce levels of violence in society in general, and is likely to enable children and young people to enjoy many more of the Convention rights.
Commentary The Children’s Commissioner for Wales welcomes the proposed establishment of a Children’s Commissioner for England, and the opportunity it brings for close and eVective working between the Children’s Commissioners in each of the countries of the United Kingdom. The Commissioner urges UK Government to ensure that this legislative opportunity is used to develop a system which is consistent, independent, straightforward and eYcient. It must be as accessible as possible to children and young people in each country, and have due regard to geographical location, culture and language, in order to help ensure the best possible standard of care and protection for all the UK’s children and young people. April 2004
3. Joint Statement on the Children Bill including proposals for a Children’s Commissioner for England by the Children’s Commissioners of Wales and Northern Ireland We welcome and fully support the principle of establishing a Children’s Commissioner for England. This means that all parts of the United Kingdom will soon have someone who is championing the interests of children and young people. There are elements of this Bill that do cause us concern. For example, we would have welcomed a stronger focus in the Bill on safeguarding children’s rights as set out in the UN Convention on the Rights of the Child. This is the position in the legislation for all the other UK commissioners. 9624231003 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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An additional fundamental weakness lies in the proposed arrangements for dealing with non-devolved matters. We believe that the ability to act on children’s behalf should rest with the Commissioner nearest to the children. It will cause confusion in the minds of children living in Wales, Scotland and Northern Ireland, if they must turn to someone other than the Commissioner for their own country. We are also concerned that the England Children’s Commissioner as set out in the Bill, would appear not to be able to launch investigations without the approval of Ministers, which undermines independence—a key feature of such posts. We trust that these issues will be resolved during the passage of the Bill through Parliament, and will work towards that end. In due course we look forward to welcoming the Children’s Commissioner for England to the United Kingdom Children’s Commissioner’s Group. Peter Clarke Children’s Commissioner for Wales Nigel Williams Commissioner for Children and Young People for Northern Ireland Note: Peter Clarke, Children’s Commissioner for Wales, was appointed in March 2001, and Nigel Williams, Northern Ireland Commissioner for Children and Young People, in October 2003. Professor Kathleen Marshall will take up her post as Commissioner for Children and Young People in Scotland in April. Issue date 5 March 2004
4. Proposals for the extension of the statutory powers of the Children’s Commissioner for Wales
Introduction The Children’s Commissioner for Wales was established under Part V of the Care Standards Act 2000. The Children’s Commissioner for Wales Act 2001 broadened the post’s remit and set out its principal aim, which is to promote and safeguard the rights and welfare of children in Wales. Peter Clarke, the first Children’s Commissioner for Wales, took up his post on 1st March 2001, and his oYce became fully operational in Spring 2002. The 2° year period since the establishment of the post has allowed many aspects of the legislation to be tested, and proposals for their extension to be formulated. The establishment of an equivalent post in England provides an appropriate opportunity to revisit the Commissioner’s statutory powers.
1. Scope of powers and devolution The approach at the time of the establishment of the post of Children’s Commissioner for Wales was to limit his powers to the areas of responsibility devolved to the National Assembly for Wales under the Government of Wales Act 1998 and the National Assembly for Wales (Transfer of Functions) Order 1999. This means that areas such as youth justice, the benefits system and police are excluded from the Children’s Commissioner for Wales’ remit, although the Commissioner does have the power to make representations to the National Assembly for Wales about any matter that aVects a child in Wales. The current limitation is inequitable in terms of children’s rights. The Children’s Commissioner for Wales’ powers should be extended to cover functions that are not devolved in Wales because: — the devolution settlement diVers in the three countries. Devolved powers are more extensive in Northern Ireland and therefore the Northern Ireland Commissioner for Children and Young People has greater powers and a wider remit than the Commissioner in Wales. — a Children’s Commissioner for England is likely to be given powers with regard to all bodies, as the devolution argument does not apply, and restricting children’s rights by reference to government departments is unfair and cannot be justified. Therefore, it is only equitable that at the time of creation of the English Children’s Commissioner the powers of the Welsh Children’s Commissioner are extended to cover non-devolved areas. The alternative would be for an English Children’s Commissioner to have powers over non-devolved functions in Wales which would be ineYcient and inappropriate, particularly post-devolution. — there are anomalies between the respective responsibilities of the central and devolved governments, and actual practice on the ground. For example, the Police are full members of Area Child Protection Committees and subject to the All Wales Child Protection Procedures. They undertake child abuse investigations with social services. While the Commissioner has full powers in respect of the other members of the ACPC, he has no powers in relation to the Police, other than to make representations. 9624231004 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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The Children’s Commissioner for Wales recently held a public inquiry into how serious allegations of sexual abuse at a secondary school in Wales were investigated. Although he could examine all the documentation held by social services, education, the WJEC and the school he did not have the power to enforce disclosure of the police internal review of their investigation in 1991. This document could have assisted the Inquiry. — the current state of aVairs means that not all children are able to receive an equal service from the Children’s Commissioner from Wales despite similar circumstances. This may even be the case where they live in the same street, and are receiving services from the same provider. Two children from Llanelli resident in Hillside secure accommodation in Neath, for example, might be aVected by this anomaly. One might be placed by the local authority, and the other via the youth justice system. The Commissioner has extensive powers in respect of the child placed by the local authority, but only the power to make representations in respect of the other child.
2. Working Together With the advent of Children’s Commissioners in each of the countries of the United Kingdom, an express power should be included in the legislation to enable and ensure that the Commissioners to work together to raise UK issues, review the impact of Parliaments functions on children, review arrangements in non- devolved areas and to hold examinations.
3. Residence Test Currently the definition of a child is restricted to being ordinarily resident in Wales. Children and young people have come to us who are ordinarily resident in England and Ireland, but who are receiving services in Wales, or are in need of advice assistance and representation. This definition is unnecessary and unfair to those children.
4. Services Test The powers of the Children’s Commissioner for Wales are restricted to service providers as defined in the Acts or to those who provide services on behalf of or under arrangements with those service providers. Concerns about unsafe practice, complaints whistle blowing and advocacy arrangements in the voluntary sector have been brought to the attention of the Children’s Commissioner for Wales. Some voluntary organisations may fall within the statutory definition but some may not. In the interest of fairness and consistency the Children’s Commissioner for Wales should be able to promote and safeguard the rights and welfare of children in Wales in all organisations providing services to children.
5. Children’s Commissioner for Northern Ireland The Order creating the Children’s Commissioner for Northern Ireland includes the following express powers. These should be included in the powers of the Children’s Commissioner for Wales and are: — Research: The Northern Ireland Commissioner for Children and Young People can undertake, commission or provide financial or other assistance for research or educational activities concerning the rights or best interests of children or the exercise of his functions. — Individual Reviews and Investigations: The Northern Ireland Order makes it clear that reviews can be undertaken in individual cases. We submit this is implied in the Children’s Commissioner for Wales’ powers but an express power would aid clarity. — Bringing, intervening and assisting in legal proceedings: The Children’s Commissioner for Northern Ireland has the express power to bring proceedings (except criminal) involving law or practice concerning the rights or welfare of children, and to intervene in any such proceedings acting as amicus curiae. This is an extremely significant power to promote and safeguard the rights and welfare of children. — Power of entry: Where the Commissioner deems it necessary for the proper conduct of an Examination, he may at any reasonable time enter into any premises managed by a relevant authority (not a private dwelling) where a child is being looked after, or detained, or where education health welfare or other services are provided. He may on entry examine the state and management of the premises, inspect or take copies of any documents required by statute to be kept, interview in private any employee and any child subject to informing the parent and giving the parent the right to be present, unless the Commissioner believes that this would not be in the child’s interests. — Review of Inspection Arrangements:The power to review arrangements for whistleblowing, advocacy and complaints also includes inspection 9624231004 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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6. Children’s Commissioner for Wales Examination Order An Order clearly setting out the rules for an Examination should be drafted including scale of legal fees. This will greatly assist any future Examination.
7. Enforcement The Disability Rights Commissioner has powers of enforcement through the courts. The Children’s Commissioner for Wales’ powers are primarily of recommendation followed by publication of non- compliance. Consideration should be given to strengthening this power.
8. Consolidation This is an opportunity to consolidate the legislation.
Commentary The Children’s Commissioner for Wales welcomes the proposed establishment of a Children’s Commissioner for England, and the opportunity it brings for close and eVective working between the Children’s Commissioners in each of the countries of the United Kingdom. The Commissioner urges UK Government to use this legislative opportunity to address identified weaknesses in the statutory powers of the Children’s Commissioner for Wales, as set out in the relevant legislation, in order to help ensure the best possible standard of care and protection for all the UK’s children and young people. December 2003
5. Joint Briefing by the Commissioners for Children in Northern Ireland, Scotland and Wales1 on the Part 1 proposals for a Children’s Commissioner
Children Bill
Overview & Principles Our concern as existing Commissioners for Children in Northern Ireland, Scotland and Wales is the rights and best interests of all children—every area of society’s relationship with children should be open to independent review and advocacy. We want English children to enjoy the same or better protection for their rights, and at least as good service from their Commissioner, as the children elsewhere in the UK. We want all children, to have easy access to a Commissioner who will act independently on their behalf and jointly with other Commissioners where appropriate. We need to take a holistic view of children’s needs—not one dominated by the complicated government and legal structures arising from devolution.
Deficiencies in the Children Bill Proposals While we welcome the move to establish a Children’s Commissioner for England, and look forward to welcoming whoever is appointed to the UK Group of Children’s Commissioners, we do have profound concerns about the detail of the current proposals: — Lack of focus on children’s rights—the Bill2 charges the English Commissioner to “promote awareness of the views and interests of children” and merely proposes the Commissioner “may have regard to the UN Convention on the Rights of the Child”3. Existing UK Children’s Commissioners have a much stronger focus on promoting the rights and best interests of children, and are required to take account of the UNCRC.4 — Limited powers and lack of independence—the Bill restricts the English Commissioner to undertaking formal investigations with strong inquiry powers to the case of an individual child raising general issues and only as directed by the Secretary of State.5 Existing UK Children’s Commissioners have a range of powers they can use in relation to more general issues and all can
1 Peter Clarke, Children’s Commissioner for Wales, was appointed in March 2001, and Nigel Williams, Northern Ireland Commissioner for Children and Young People, in October 2003. Professor Kathleen Marshall will take up her post as Commissioner for Children and Young People in Scotland in April. 2 Clause 2 (1). 3 Clause 7 (1). 4 See Article 6 of the Commissioner for Children and Young People (Northern Ireland) Order; Sections 4 & 5 of the Commissioner for Children and Young People (Scotland) Act 2003; and Section 2 of the Children’s Commissioner for Wales Act 2001 and Regulation 22 of the Children’s Commissioner for Wales Regulations 2001. 5 Clause 4. 9624231005 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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initiate inquiries at their own behest.6 We believe the proposals in the Bill are creating a Commissioner that while being a strong voice for children’s views will neither enjoy the powers nor the independence that will enable those views to be translated into meaningful action. — A confusing relationship with other UK Commissioners—the Bill initially states that the Commissioner has responsibility for promoting the views and interests of children in the United Kingdom7 which is then qualified by excluding the existing responsibilities of the Commissioners in Northern Ireland, Scotland and Wales8. The Bill introduces a weak duty on the Commissioner to take account of the views of and work undertaken by the other Commissioners9. This duty specifically excludes formal investigations—so that the Commissioner can investigate10 the case of an individual child in Northern Ireland, Scotland or Wales without reference to the Commissioner in that country. In our view the Commissioner’s initial role should be limited to England, but there should be a clear duty to “work jointly and consult with” the other Commissioners on any matter where there is a UK wide interest, or with a specific Commissioner in relation to a matter where there is an interest in his or her country. This will require amendments to both Clause 2(1) and Clause 5. There is a case for giving each Commissioner a remit which covers all matters aVecting children (whether devolved or non-devolved) in that country but this would require further amendments to the primary legislation setting up the Commissioner’s oYces.
April 2004
6. Supplementary written evidence from Peter Clarke, Children’s Commissioner for Wales
The Children’s Commissioner for Wales’ response to UK Minister for children’s comments to Welsh AVairs Committee—Press statement Children’s Commissioner for Wales, Peter Clarke, today expressed his disappointment and surprise at comments made by UK Minister for Children, Margaret Hodge MP, when she gave evidence to the Welsh AVairs Committee. During the course of rigorous questioning by Welsh MPs, Mrs Hodge, attempted to defend the more restricted model of a Children’s Commissioner she envisages for England, by criticising directly the kind of work completed in Wales. She claimed that the oYce was bogged-down in individual casework, and had made insuYcient impact at a policy or strategic level. Peter Clarke said: “I am perplexed by Mrs Hodge’s remarks, since she is so clearly unaware not only of the breadth of work undertaken by myself and my team, but also of the whole range of developments in Wales in general. To see policy and strategic influence solely in terms of the publication of reports is very narrow and bureaucratic. I have sought to ensure that my team of staV operate eVectively and eYciently across the whole range of activities that are essential when working to safeguard and promote the rights and welfare of our children and young people. We have structured programmes of meetings, workshops and discussions with policy makers and key stakeholders—including some of the most vulnerable and marginalised children—and these are frequently more successful is establishing views and achieving change. “In addition to the three reports already published, there are three more due for publication in the next two months—including the report of my first Public Inquiry into the handling of abuse allegations against a former drama teacher, the Clywch Report. “In our first two years as a fully operational oYce we have been able to influence Assembly policy and help secure action on child-poverty, child and adolescent mental health services and advocacy provision. Telling concerns, which looked at systems in social services departments throughout Wales to help protect vulnerable children and young people, made 65 recommendations at many diVerent levels. Because we monitor progress we know that most of these are already being implemented. “Many people will know that I make public statements on issues which children tell me are of importance to them, and on matters which are fundamental issues of children’s human rights— such as protection from physical punishment. But much of our work goes on behind the scenes— as network members, or observers on task groups, or by responding to consultation documents. Just because it isn’t in the public eye, it doesn’t mean that it hasn’t been eVective in ensuring that children are better protected and have a voice in more of the decisions that aVect them. There’s
6 A detailed comparative table of the powers in Northern Ireland, Wales and Scotland is available at www.niccy.org . There are diVerences in the range of powers that each Commissioner has but they are without exception stronger than those of the English Commissioner. 7 Clause 2 (1). 8 Clause 5 (1). 9 Clause 5 (2). 10 Such an investigation would be in relation to non-devolved matters as defined by Clause 5 (3). 9624233001 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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still a long way to go, and I am resigned to the fact that I shall never feel that I can rest on my laurels; but I do feel that even in these early days we can see the impact my post and the hard work of my team of staV has on improving the lives of children and young people. “I would be happy to respond in more detail to any questions Mrs Hodge would like to raise, so that she can fully understand what being a children’s commissioner is all about. My own view is that I need all the tools that the legislation provides me with to do a good job as a Children’s Champion. If children and young people in England are happy with the kind of Commissioner outlined in the Children Bill, then I respect that decision. However, insofar as the proposals aVect the children of Wales, I feel that I have a responsibility to make my reservations public.” 5 May 2004
7. Supplementary written evidence from Peter Clarke, Children’s Commissioner for Wales I submit the following evidence in addition to that provided at the commencement of the Committee’s inquiry in order to further clarify the role of the Children’s Commissioner for Wales, and illustrate the range of work undertaken at a policy and strategic level in order to safeguard and promote the rights and welfare of children and young people in Wales. While many aspects of the work of my team are outlined in my Annual Reports (attached, or accessible from www.childcomwales.org.uk ), they do not always give a clear indication of the amount of detailed work which contributes to the outcomes. While the need to conduct formal studies or reviews is axiomatic, I have taken a more progressive and proactive approach in order to ensure that my team of staV work in the most creative and productive ways to establish the views, opinions and experiences of children and young people in Wales. This information is then analysed and translated into policy positions, and then used to influence the strategic development of policy and service development in a range of ways.
Advice and Assistance Work Much attention has been given to what is described as “individual cases” in recent weeks. I believe that it would be helpful to the Welsh AVairs Committee to describe the sort of work involved in dealing with what is termed “Advice and Assistance” in my oYce. As indicated in my oral evidence, we have in excess of 500 cases on our Advice and Assistance database. While a small proportion of these cases are being considered as potentially suitable for investigatory reviews, or are currently the subject of investigatory review, the vast majority involve either signposting children, young people, parents, carers or other advocates to appropriate sources of information, service provision or support. Many will involve tracking the progress of a complaint or issue, or working to ensure that children and young people (often groups of children and young people) are able to participate in the decision making process and that their views are given due weight by the agency or body making the final decision. In my opinion, the statutory power to take on such advice and assistance work is critical in order to fulfil the following aspects of my responsibilities as an informed champion of Wales’ children: 1. It enables me to identify priority areas for investigative and policy reviews, providing intelligence of the real experiences of children and young people, and those who act in order to ensure that their needs and rights are met and respected. 2. The process enables my team to identify gaps in service, or between the rhetoric and reality of government policy, which help develop the focus of influencing activity. 3. It provides an opportunity for individual or groups of children and young people to receive speedy redress, as part of the process of achieving (1) and (2) above. 4. Contextualised examples of the need to promote the UN Convention rights, and in particular Article 12, are a learning opportunity for agencies and organisations in which we are in contact. Awareness raising outside the realities of providing services or developing or implementing policy do not always achieve as much as promoting practice. My own view is that I need all the tools that the legislation provides me with to do a good job as a Children’s Champion. If children and young people in England are happy with the kind of Commissioner outlined in the Children Bill, then I respect that decision.
Policy and Strategic Influence To see policy and strategic influence solely in terms of the publication of reports is very narrow and bureaucratic. I have sought to ensure that my team of staV operate eVectively and eYciently across the whole range of activities that are essential when working to safeguard and promote the rights and welfare of our children and young people. Achieving cultural change requires a broader approach. In addition to the three reports already published, there are three more due for publication in the next two months—including the report of my first Public Inquiry into the handling of abuse allegations against a former drama teacher, the Clywch Report. 9624233002 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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As the Committee will be aware, the Annual Report is more than a summary of organisational activity and financial accounts within a particular year. It is an opportunity to influence the policy agenda in the coming year, and we have used the Commissioner’s Review of Issues relevant to the rights and welfare of children and a means of highlighting priority areas. These issues have been drawn to my attention in a number of ways. These include the intelligence accumulated through Advice and Assistance work, information from groups or organisations of young people or children and through direct contact between myself and members of my team with the children and young people of Wales. In our first two years as a fully operational oYce we have been able to influence Assembly policy and help secure action on child-poverty, child and adolescent mental health services and advocacy provision. Telling concerns, which looked at systems in social services departments throughout Wales to help protect vulnerable children and young people, made 65 recommendations at many diVerent levels. Because we monitor progress we know that most of these are already being implemented. A similar review exercise examining advocacy, whistleblowing and complaints within Local Education Authorities is now nearing completion, and my team has already commenced preparatory work in relation to replicating the process in Health. Each team within my oYce has a structured programme of meetings, workshops and discussions with policy makers and all our key stakeholders—including some of the most vulnerable and marginalised children—and these are frequently more successful in establishing views and achieving change. Many of these occur as part of initiatives to promote the recommendations of a particular piece of work by a team, and others look specifically at the participation of children and young people. Relationships have been forged via a programme of meetings and/or seminars with Local Health Boards throughout Wales, advocacy providers, children’s NGOs and professional associations, as well as with special interest groups and Welsh Assembly government divisions and ASPBs. Representatives of my oYce have observer status on a number of working groups, including the following: — Child Poverty Task Group. — All Wales Equalities Network. — Special Educational Needs Reference Group. — Self-Assessment Audit Tool Stakeholder Group (NSF). — Review of Joint Reviews in Wales Group. — Complaints and Representations Advisory and Implementation Group. — Technical Advice Group on Tourism, Sport and Recreation. — Spatial Plan Development Group. — Daugherty Assessment Review Group. — National Community Child Health Database Group. — CHILD (European Child Health Indicators Group). Where appropriate, and where the independence of my oYce would not be compromised, we participate in networks as full members. These include the End Child Poverty Network Cymru and “Sdim Curo Plant!/ Children are Unbeatable!”, and the oYce has contributed to these campaigns. EVective use of the opportunities to promote these and other issues through working with local, national and UK media has been a focus also, and we far exceed the monthly media targets set for the organisation in our corporate plan. The media coverage secured has been both print and broadcast, including that aimed at children and young people as well as the general public and specialist journals. Regular authoritative comment on matters relevant to the rights and welfare of children is provided in both the English and Welsh language, and this contributes significantly to raising the profile of our work, and of the human rights of children and young people, as well as of the issue under consideration. While public statements are of importance, much of our work goes on behind the scenes—as network members, or observers on task groups, or by responding to consultation documents. This may not be in the public eye, and the results are sometimes yet to be measured, but it cannot be concluded that it hasn’t been eVective in ensuring that children are better protected and have a voice in more of the decisions that aVect them.
Conclusions Despite many of the Government statements made by way of assurance and explanation during the recent House of Lords Committee stage debates on the Children Bill 2004, and in evidence to the Committee, I remain concerned about both the model proposed for England, and the likely impacts of the implementation of those proposals on my oYce and the service available to children. I consider it a duty to comment of the issue insofar as the proposals aVect the children of Wales, in order to safeguard and promote their rights and welfare, which is the principal aim of my post. 9624233002 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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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. Clearly, if the English Commissioner is truly independent, it would be inappropriate for anyone to do so on his behalf. I welcome the recommendation made in the Committee’s report The Empowerment of Children and Young People in Wales, to extend the powers vested in my post to cover all matters impacting of children and young people in Wales, regardless of whether they are devolved or otherwise. To this end, I would like to restate my view that a Children’s Commissioner must be able to provide as far as possible a holistic and child-focused response, and that to confuse the responsibilities of a Children’s Champion with those of political institutions is artificial and misleading. Statutory powers are needed, particularly in relation to service or policy areas where child protection or the UNCRC may not be at the forefront form day-to-day. The most marginalised and vulnerable children are frequently those without a voice. Restricting children’s rights by reference to government department is at odds with the experience of children, young people and their families. My concern is about more than just confusing children; because in practical terms the consequences may well be confusion and inconsistency for all—children and young people, their parents or carers, advocates, service providers and government departments as well. 19 May 2004
8. Written evidence from the Rt Hon Margaret Hodge MBE MP, Minister for Children, Young People and Families 1. This memorandum sets out for the Committee the Government’s position on the relationship between the Children’s Commissioner proposed in the Children Bill and the Children’s Commissioner for Wales. 2. The proposals for a Children’s Commissioner were developed as an integral part of the Government’s agenda for children, outlined in Every Child Matters (2003) and Every Child Matters: the Next Steps (2004), and laid before Parliament in the Children Bill. Children were consulted widely as this agenda was developed, and five outcomes emerged from what children told us was most important to them (set out in Every Child Matters). The Government has therefore taken a clear view that the Commissioner must play a key, strategic role in encouraging and monitoring progress towards achieving these outcomes, and that his or her work must be driven by children’s views. The Commissioner’s proposed functions and powers are appropriate to this role, and to the scope of the Commissioner’s remit, which will cover 11.7 million children in England alone. 3. The Government’s intention is not to create a Commissioner that is “first among equals” in the UK. Rather, the intention is to ensure that all children in the UK have a voice. The Commissioner is the last of its kind to be established in the UK, and as such the Government has made every eVort to ensure that the proposals fit as well as possible with existing arrangements. This has been a challenging task for two reasons—the complex nature of the devolution settlements across the UK, and the diVerence in role between the Commissioner and his or her UK counterparts. 4. With regard to the former, the Children Bill is not the arena for a debate on devolution. We must work within the spirit of the current settlements until such time as they are revisited. With regard to the latter, the Commissioner is being created in a diVerent context from that of the Devolved Administrations, and will be doing a somewhat diVerent job. He or she will be working within an outcomes-based approach to improving children’s lives, rather than a rights-based approach. The significantly higher number of children under his or her remit (11.7 million in England, compared to 0.7 million in Wales, 0.5 million in Northern Ireland and 1.2 million in Scotland), has also necessitated this diVerence in role. We are clear that the Commissioner must have a strategic role rather than one based on supporting individual cases. With so many children in England, the latter would soon become overwhelming. 5. Given these constraints, the Government has sought to address the interests of children in all parts of the UK in the fairest and most appropriate way. The Commissioner’s remit will therefore cover all matters relating to children in England, and non-devolved matters relating to children in Wales, Scotland and Northern Ireland. This is to ensure fairness and consistency in our approach to non-devolved matters as they relate to children—wherever they may be in the UK. 6. It is logical that only one Commissioner should report directly to Westminster on non-devolved matters, and it follows that this should be the proposed Commissioner, as he or she will be reporting to Westminster in any case. 7. It is for these reasons that the Government has been clear from the outset that we will not use the Children Bill to extend the powers and remit of the Children’s Commissioner for Wales. 8. Turning specifically to the relationship with the Welsh Commissioner, the Government is aware (through Ministerial and oYcial level correspondence and meetings) of the concerns felt by the Welsh Assembly, and the Welsh Commissioner himself, as to how this relationship will work in practice and the potential for confusion among children in Wales. 9624231006 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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9. Whilst we have made every eVort to develop legislation that is within the spirit of the devolution settlements, the Government does not expect children to understand the complexities of these arrangements. However, it also does not believe that the establishment of the proposed Commissioner will create any confusion for children or anyone else in Wales. 10. The creation of the Commissioner will not undermine, or detract in any way from the role of the Welsh Commissioner. The latter will be able to continue carrying out his functions in the same way that he does now. Under his legislation, the Welsh Commissioner can consider and make representations to the Assembly on any matter, whether devolved or non-devolved, that aVects the rights and welfare of children in Wales. If he deems it appropriate he can also make representations to Government on these matters, and I understand that my colleagues in the Wales OYce have given the Welsh Commissioner assurances that he is welcome to contact them on any points or concerns at any time. 11. In terms of the Commissioner’s general function as it applies to Wales, s/he will also be able to consider, research and report on non-devolved matters as they relate to the views and interests of children in Wales. This means that s/he will need to know what Welsh children think about these matters. However, it is not the intention that the Commissioner duplicates or rides rough-shod over the good work already being done by the Welsh Commissioner in this respect. The Commissioner will have a duty to take account of the views and work of the Welsh Commissioner when looking at such matters. The Government envisages that the Commissioner would wish to work closely with the Welsh Commissioner on these issues, and use the Welsh Commissioner’s work to inform his or her own. This is something the Government anticipates the two Commissioners will want to set out together in a Memorandum of Understanding, concordat, or similar. 12. The Commissioner’s inquiry function under Clause 4 of the Children Bill is a further issue that we must look at in relation to Wales. The Commissioner can carry out a formal inquiry into an individual case that raises issues of relevance to other children, as directed by the Secretary of State. The Government envisages that the Commissioner will want to involve and consult the other UK Commissioners appropriately where there are implications for children in their countries. 13. The situation may arise whereby an inquiry is to be carried out on a non-devolved matter due to something that has happened in Wales. Before making the decision to direct the Children’s Commissioner to undertake an inquiry, the Secretary of State would need to consider whether that Commissioner was the most appropriate person to do so. If the Secretary of State felt it more appropriate to use someone with better local knowledge he could appoint the Welsh Commissioner—with the latter’s agreement—or another suitable person to conduct the inquiry (if this were to be the case the inquiry would not come under the Children Bill). 14. One aspect of their roles that diVers widely is that the Commissioner will not be taking on individual complaints, whereas the Welsh Commissioner does have this function. If a child in Wales contacts the Welsh Commissioner asking him for help with a complaint relating to a non-devolved matter, such as youth justice, the Welsh Commissioner would not be able to become directly involved in the case. 15. The creation of the Commissioner will not change this situation, nor will it create any further confusion, as s/he will not be able to take on any individual complaints. The Commissioner will, however, be able to look at complaints procedures (including advocacy and whistleblowing arrangements) in order to assess their eVectiveness for children and make recommendations for improvement. 16. Were the Commissioner to consider complaints procedures on non-devolved matters in Wales (eg. for young oVenders), the Government does not expect him or her to duplicate the work of the Welsh Commissioner, rather that the Commissioner should be informed by this work and that the two should work together to ensure that all children have access to eVective complaints mechanisms across England and Wales. 17. It is vital that we keep looking at the relationship between the two Commissioners from the child’s perspective. I understand the concern of the Assembly and of the Welsh Commissioner that there needs to be a clear point of contact for children in Wales. The Government does not disagree with this and commends the excellent work done by the Welsh Commissioner to establish himself and his oYce as a clear, consistent point of contact for Welsh children. 18. However, we do not believe that the creation of the Commissioner will do anything to undermine this. The reality is that the majority of children in Wales will go straight to the Welsh Commissioner with any queries, comments, problems or complaints that they have. As mentioned earlier, we cannot expect children to understand the complexities of devolution, and it is highly unlikely that they will contact the Welsh Commissioner on some matters and his colleague in England on others. 19. In terms of how the Welsh Commissioner should deal with such contact, the Government anticipates that he will react to correspondence as he does now. The only diVerence is that he will now have a new ally in championing the issues that aVect children in Wales—and that children in Wales will have an enhanced voice in Parliament. 9624231006 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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20. In any case, both Commissioners have a clear duty to ensure that children are aware of them and what they do, and how they can communicate with them. The Commissioners will need to work together to find ways of doing this eVectively. 21. In short, we anticipate that in practice the Welsh Commissioner will continue to remain a clear point of contact for children in Wales. It will be up to him and the Commissioner to draw up their own practical arrangements to ensure that this is the case.
27 April 2004
9. Supplementary written evidence from the Rt Hon Margaret Hodge MBE MP, Minister for Children, Young People and Families Thank you for the opportunity to answer the Committee’s questions last week on the Government’s proposals for a Children’s Commissioner, and the relationship with the Children’s Commissioner for Wales. I promised that I would write to the Committee in order to clarify a number of points. I will start, if I may, by addressing the issue of consultation with children in Wales. The Committee questioned me about whether children in Wales had been consulted on the proposals in the Green Paper, Every Child Matters, and on the Commissioner proposals in particular. I answered that, to the best of my knowledge, my Department had not carried out any specific consultation exercises with children in Wales, and I can now confirm that this is indeed the case. However we consulted widely with children and young people and I am delighted that over 3000 children and young people did respond to our consultation. While there has not been direct consultation with children in Wales (or Scotland or Northern Ireland) I can assure you that we are extremely mindful of the impact of our proposals on children themselves. My aim as we move forward will be to ensure arrangements are in place that are clear, understandable and eVective for all children. I also promised to write to the Committee regarding the provision of Welsh language services in the oYce of the Children’s Commissioner. As I said to the Committee, we will abide by our legal obligations where Welsh language facilities are concerned. My understanding is that, under the Welsh Language Act 1993, the National Assembly must decide whether the new Commissioner, when he or she is appointed, is to be classified as a “public body” in Wales. If the Commissioner is classified as such, he or she will be subject to the requirements of the Welsh Language Board, and will need to work with the Board to draw up a scheme for providing Welsh language facilities. It would be premature to start doing so before the Children Bill has made its proper passage through Parliament. With regard to resources, we have not sought to break down the Commissioner’s funding or prescribe how it should be allocated. The Commissioner will be provided with an annual budget and as an independent Commissioner it will be for him or her to judge priorities and allocate resources as is appropriate and expedient to his or her functions and duties. I hope this has answered the specific questions on which I said I would respond to the Committee. However, if the Committee has additional questions on the Government’s policy on the Children’s Commissioner, I would be very happy to provide further clarification. 18 May 2003
10. Written evidence from Save the Children
Powers of the Children’s Commissioner for Wales 1. Save the Children welcomes the Welsh AVairs Select Committee’s Follow-up Inquiry into the powers of the Children’s Commissioner for Wales in light of the proposals for a Children’s Commissioner for England as set out in the Children Bill. Save the Children was an active member of the coalition of NGO’s that lobbied to establish a Children’s Commissioner for Wales and worked with parliamentarians during 2001 to try to ensure that the Children’s Commissioner for Wales Act gave the Welsh Commissioner the statutory powers needed to enable him to investigate and comment on all matters aVecting children and young people. 2. At that time we were very concerned that that the Commissioner’s powers were limited to the areas of responsibility devolved to the National Assembly for Wales. We were successful in drawing an amendment to the Government’s proposals, which empowers the Commissioner to make representation on other (non- devolved) matters to the National Assembly. While welcome, this amendment still fell far short of our objective of establishing statutory powers for the Commissioner, which enabled him to act as an unfettered champion for children and young people in all matters aVecting them. 3. The establishment of a Children’s Commissioner for England was always seen as the next opportunity we would have to strengthen the powers of the Wales Commissioner in this regard. We are therefore extremely disappointed that the Children Bill does not give the Welsh Commissioner any additional powers 9624231007 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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in respect of enquiring into and commenting on all matters aVecting children in Wales and gives the Children’s Commissioner for England a UK-wide remit in respect of non-devolved matters (Clause 2, Part 1 of the Children Bill). 4. Save the Children views this situation as a missed opportunity, particularly as the operation of the Wales Commissioner’s OYce over the last 2° years has demonstrated (as we and other NGO’s had predicted) the diYculties inherent in trying to operate the Commissioner’s OYce according to the responsibilities of political institutions. In the words of the Children’s Commissioner for Wales: “Restricting children’s rights by reference to government departments is artificial, ineYcient and inappropriate1.” 5. In practice there have been real diYculties and not all children are able to receive an equal service from the Children’s Commissioner for Wales despite similar circumstances. The Commissioner has limited powers in respect of youth justice, social security, asylum or in circumstances when children from Wales receive health and welfare services in England. He has limited powers in respect of the Police who in Wales (as in England) undertake child abuse investigations with social services. 6. Moreover, Save the Children is concerned that the proposals to give the Commissioner in England powers over matters aVecting children in Wales (the UK-wide remit set out in Clause 2, Part 1 of the Bill) will create confusion and may diminish or undermine the existing powers of the Welsh Commissioner in respect of non-devolved matters. The proposed powers of the England Commissioner are diVerent and much weaker than the Welsh Commissioner’s powers. There will be an overlap on non-devolved issues as the Wales Commissioner already has powers to make representation on these matters to the Assembly. 7. The joint statement from the Welsh Commissioner and the Northern Irish Commissioner describe the proposal for the England Commissioner to have a UK-wide remit as a “fundamental weakness” causing “confusion in the minds of children”2. Peter Clarke has expressed concerns that the proposed UK-wide powers of the English Commissioner might undermine the working relationships he has already established with bodies technically outside his remit. For example, the Police, if these policy and service areas are designated as ones for which the Commissioner based in England would be the relevant authority. 8. Concerns about the proposals in this regard were raised by Welsh Peers in the House of Lords second reading debate on 30th March 2004. Baroness Ashton responding for the Government sought to allay these concerns saying that the Welsh Commissioner can still comment on non-devolved matters as he does at the moment (ie to the National Assembly for Wales) and submitted that children in Wales will have an “enhanced view in Westminster”3. We are not sure how this will be so and would welcome an explanation. Who exactly would a child in Wales turn to if they had an issue or complaint relating to a non-devolved policy or service area? The Commissioner in Wales or a Commissioner in England? 9. We could have the ridiculous situation where a child (or an adult on their behalf) would be expected to make contact with one Commissioner on one issue (eg the quality of care in a children’s home in Wales) and on another issue (eg the treatment in a Young OVender Institution in Wales or England) to make contact with another Commissioner based in England. If we (as an independent organisation working with children and young people in Wales) had a concern about say youth justice policy as it aVects Wales—which Commissioner would we raise this with? 10. Save the Children is bemused as to why the UK Government seems so intent on pursuing an impractical and confusing arrangement whereby the powers of the respective UK Children’s Commissioner’s are determined by the framework of political institutions we have in the UK. While the Welsh Commissioner has strong powers to investigate and comment, he does not have any executive powers to change policy. 11. There seems to be few grounds or evidence that the approach to non-devolved issues proposed in Clause 2, Part 1 of the Children Bill is the right one. In the Government’s response to the Welsh AVairs Select Committee’s recommendations that the Wales Commissioner should be given additional powers to cover non-devolved areas of policy4, the Government rejects the recommendations and argues that their proposed model is preferable because it will ensure a “consistent” and “fair” and “equal” approach to non-devolved matters for children across the UK. 12. Save the Children believes that the priority for deciding on the arrangements for how Children’s Commissioners across the UK deal with non-devolved matters should be that the children of Wales (and of Scotland, Northern Ireland and England) perceive (and receive) a consistent approach to the promotion and safeguarding of their rights—with one Commissioner’s OYce to relate to. It should be for the UK Commissioners and the civil servants to set up their own arrangements for co-ordinating their activities in respect of non-devolved matters to ensure that arrangements work fairly and equally for all children across
1 Children’s Commissioner for Wales: impacts of proposals for a Children’s Commissioner outlined in the Children Bill 2004. Children’s Commissioner for Wales (April, 2004). 2 Children Bill: Joint Briefing by the Commissioners for Children in Northern Ireland, Scotland and Wales on the Part 1 proposals for a Children’s Commissioner. 3 Hansard. 30 March 2004. Column 1303/4). 4 The Government’s Response to the First Report of the Committee Session 2003–04: The Empowerment of Children in Wales. Second Special Report of Session 2003–04. HC 459. April 2004. TSO. 9624231007 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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the UK. We are at a loss to understand why, when we are talking about establishing independent champions for children across the UK, the Government seems unable or unwilling to comprehend that the child’s need for a consistent and understandable approach must come above the needs of the UK Government Eleri Thomas Assistant Programme Director (Wales) 20 April 2004
11. Written evidence from NCH Cymru 1. NCH Cymru is a leading children’s charity, working with some 13,000 children, young people and parents in Wales each year. We welcome the Committee’s follow-up enquiry into the powers of the Children’s Commissioner for Wales, an oYce which is playing a vital role in protecting children and promoting their rights. 2. We are aware that there was strong lobbying around the legislation which created this oYce, to give the Commissioner additional powers in respect of non-devolved matters aVecting Welsh children and in respect of Welsh children temporarily resident in England. We supported the aims of that lobby and still feel that the Commissioner’s powers need to be strengthened. We have particular concerns about young people in the Youth Justice system. At present, the Commissioner for Wales can make representations to the Assembly on non-devolved matters, but can go no further. 3. The current proposals for the English commissioner, giving this oYce a UK brief for non-devolved issues, are likely to cause confusion for children and young people. Given the weaker powers of the England Commissioner, it could also lead to a less eVective response. The Commissioner’s oYce in Wales has made progress in raising its profile with children and developing a communication strategy. This will be totally undermined if young people have to relate to a Commissioner in England on some issues. 4. The Government’s stated wish to ensure a fair and consistent approach could be achieved in other ways eg by the four Commissioner’s setting common standards for themselves, independent of government. 5. We would like to see the Children Bill amended to give the Children’s Commissioner for England stronger powers, but for England only. We feel that the Commissioner for Wales should have his powers strengthened in respect of non-devolved issues. Jayne Isaac Public Policy OYcer 21 April 2004
12. Written evidence from Barnardo’s Cymru
The Powers of the Children’s Commissioner for Wales Barnardo’s Cymru welcomes the creation of a Children’s Commissioner for England and in particular the opportunities this will bring for developing positive working relationships between the oYces of the four Children’s Commissioners across the UK. However, we believe that the Children Bill represents a significant missed opportunity in that it makes no reference to increasing the powers and remit of the Children’s Commissioner for Wales to cover non-devolved areas. In addition, we have serious concerns that in certain circumstances the remit for the Commissioner for England will, at best confuse, and at worst undermine the position of the Children’s Commissioner for Wales.
Extending the Commissioner’s Remit and Powers The powers of the Commissioner are currently limited to the devolution settlement, which means that areas such as youth justice, the benefits system and police are excluded from the Children’s Commissioner for Wales’ remit. However, the Commissioner does have the power to make representations to the National Assembly for Wales about any matter that aVects a child in Wales. Each of the diVerent Commissioners so far have had their powers determined by the devolution settlements in each of the three nations. As each of the settlements are diVerent, this has led to each of the Commissioners having diVerent remits and powers. This needs to be addressed so that each of the Children’s Commissioners have the same powers and the same areas of responsibility. The remits should be broadened to allow for the Commissioners to be able to comment and make oYcial representations on any matter that aVects children and young people within their jurisdiction. We believe that extending the remit of the Commissioner to include reserved matters would allow the Commissioner in Wales to: 9624231009 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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— Comment formally on non-devolved matters and functions when they impact on children in Wales. — Report children and young people’s views on primary and potential primary legislation. — Represent the interests of children ordinarily resident in Wales, but receiving services or accommodated outside Wales. — Consider and make appropriate representations on any matters which emerge as key concerns through consultation and other contact with children and young people in Wales. We believe it is essential that the Children’s Commissioner for Wales has the remit to fully represent every child and young person living in Wales, and that the Children Bill should reflect this and provide the opportunity to broaden the powers to include reserved matters accordingly.
Overlapping Remits The Children’s Commissioner for England, as proposed in the Children Bill, would have a UK remit, which we believe would lead to confusion about the role of the Commissioner in Wales. This extended remit will lead to some children in Wales, eg those in the youth justice system, being represented by the Children’s Commissioner for England. This further compounds the problems around the decision to limit the Welsh Commissioner’s powers to the devolution settlement in Wales. In order to rectify this situation the powers of the Commissioner in Wales should be extended to include non-devolved areas, which would allow the Commissioner to represent all children in Wales, whatever their circumstances. This would also give a clear message to children and young people in Wales about the position and role of the Children’s Commissioner in representing their views and protecting them. Barnardo’s Cymru therefore concurs entirely with the Welsh AVairs Select Committee’s view, as expressed in its report “The Empowerment of Children and Young People in Wales” that: “We do not believe that the interests of children and young people in Wales would be best served by conferring powers over them, with regard to reserved matters, to a Children’s Commissioner for England. We recommend that the government include in any Bill to establish a Children’s Commissioner for England, clauses to extend the powers of the Children’s Commissioner for Wales to cover all non-devolved areas of policy for children and young people in Wales.” We are disappointed that the government has not taken the Committee’s lead on this matter, and as stated at the outset of this response, we believe this is a missed opportunity to establish consistent and coherent remits across the roles of the four UK Children’s Commissioners. Andy James Assistant Director, Policy 20 April 2004
13. Written evidence from NSPCC Cymru/Wales
The Powers of the Children’s Commissioner for Wales
1.1 NSPCC Cymru/Wales welcomes the Welsh AVairs Select Committee’s enquiry into the powers of the Children’s Commissioner in Wales, and further welcomes the opportunity to provide written evidence. 1.2 We feel that since the establishment of the post of Children’s Commissioner for Wales, the Commissioner and his team have worked very hard to establish and explain the role to children and young people in Wales. 1.3 The Commissioner has proved to be an independent, authoritative and respected voice for children and young people in Wales. The Commissioner’s post has been one of the driving forces behind raising the profile children’s rights in Wales. 1.4 We feel that the Children Bill provided the ideal opportunity to further develop the remit of the Children’s Commissioner for Wales, extending the original remit to include non-devolved policy areas. We are disappointed that the Children Bill does not include any such proposals to extend the remit to include reserved areas such as youth justice, the police and the benefits system. 1.5 Further to this we feel that the Commissioner for England’s role as outlined in the Children Bill could lead to confusion for children and young people in Wales. This would be due to the Commissioner for England having a remit which includes all non-devolved areas. This will lead to a situation where some children in Wales would be the responsibility of the Welsh Commissioner and some children in Wales would be the responsibility of the English Commissioner. This is a very diYcult situation to explain and would undermine the work that Peter Clarke and his team have done to raise their profile with children and young people in Wales. 9624231010 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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1.6 The Commissioner already has powers to make representations to the National Assembly for Wales on reserved matters and has worked to develop links with agencies that are beyond his remit, eg the police. With the proposal for the English Commissioner containing responsibility for reserved matters, how would the Welsh Commissioner’s powers of representation be aVected and what would happen to the working relationships with bodies such as the police? These matters will merely create more confusion and uncertainty among children and young people in Wales. 1.7 NSPCC Cymru/Wales would like to see a Welsh Children’s Commissioner with a remit that allows him to represent all children and young people within Wales. The powers of the Commissioner should not be determined by Government Departments or political settlements, as the problems and issues which children and young people face are not divided into devolved and non-devolved matters. As the devolution settlements are all diVerent in the four nations this means that the representation and service that children and young people receive is not consistent. This could again lead to further confusion. 1.8 We feel that the Commissioner has been a success in Wales and has helped to raise the profile of issues relating to children and young people, despite his limited remit. It is a disappointment that the Children Bill has not taken the opportunity to further extend the powers of the Commissioner so that the oYce can fully represent all children and young people in Wales. This disappointment has been compounded by the proposal for the Commissioner in England to work on a UK wide remit. It is our hope that the Bill can be amended to avoid any confusion or conflict between Commissioner’s remits and can provide the Commissioner in Wales with the extra powers to continue and extend the work of the last three years. Simon Jones NSPCC Policy Advisor Cymru/Wales 29 April 2004
14. Written evidence from the Welsh Language Board
The Children Bill 2004 and the Welsh Language: a Briefing Note for the Welsh AVairs Committee
Introduction The purpose of this briefing note is to provide information about the requirements with regard to the Welsh language which will be relevant to the proposed Children’s Commissioner for England—and the services that the Commissioner would need to provide for children and young people living in Wales.
Background The Welsh Language Act 1993 requires public bodies providing services to the public in Wales to prepare Welsh Language Schemes outlining how they will provide those services through the medium of Welsh. The Act applies to public bodies located outside Wales, as long as they provide services to the public in Wales. [It should also be noted that “services” need not be provided directly to the public. Activities such as regulation, advocacy and the development of public policy are also statutorily “services to the public in Wales”]. Welsh Language Schemes are approved by the Welsh Language Board (which is an Assembly Sponsored Public Body established under the Welsh Language Act)—and are based on guidelines issued by the Board with the approval of Parliament. Each Scheme must describe how the public body intends to: — mainstream the Welsh language as it develops new policies and services; — deal with the Welsh speaking public: — through written correspondence; — by telephone; — in meetings; — develop a bilingual corporate identity: — on signs; — through printed material used in Wales; — through its advertising and publicity activities in Wales; — implement the scheme through its recruitment and staV training policies. The Children’s Commissioner for Wales is currently preparing a Welsh Language Scheme—and, similarly, the Board would expect the same of the Children’s Commissioner for England should he, or she, be required to provide services to the public in Wales. 9624231011 Page Type [E] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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Conclusion Given the sensitive nature of the Commissioner’s work, the Board believes that the ability to provide services in the client’s chosen language is a very important and significant consideration. Being unable to use their language of choice could make it much more diYcult for children and young people to build a trusting relationship between themselves and the proposed Commission. The Board strongly recommends, therefore, that—as these proposals are further developed— consideration should be given to the need to provide services through the medium of Welsh, to a satisfactory standard—and consistent with the principle of equality set out in the Welsh Language Act. As various options are considered, it would be useful to recognise that it is often the case that it is easier for bodies located in Wales to provide services through the medium of Welsh—especially with regard to face to face contact with the public. This, of course, reflects the greater ease with which Welsh speaking staV can be recruited in Wales. 21 May 2004
15. Letter from David Melding AM, Chair, Health and Social Services Committee
CHILDREN BILL I am enclosing a copy of the National Assembly for Wales Health and Social Services Committee’s report (Annex) on its consideration of the Children Bill, which is being laid formally before the Assembly. The main point of the report is that the committee agreed, without a vote, the motion that: “The Health and Social Services Committee rejects the proposals in the Bill that the Children’s Commissioner for England will have statutory functions over non-devolved matters aVecting children and young people in Wales, and instead calls for the powers of the Children’s Commissioner for Wales to be extended over those non-devolved areas of policy.” I am also copying the report to the Members of the Select Committee on Welsh AVairs and other Members of Parliament for Welsh constituencies; the Secretary of State for Wales; the Secretary of State for Northern Ireland; and the Convenor of the Education Committee in the Scottish Parliament. 13 May 2004
Annex
NATIONAL ASSEMBLY FOR WALES
Health and Social Services Committee E
Children Bill On 2 December 2003, following a plenary debate on the Queen’s Speech to Parliament, the National Assembly remitted the Children Bill to the Health and Social Services Committee for scrutiny. The Committee considered the Bill, in accordance with its agreed protocol for scrutinising legislation, at its meeting on 5th May 2004. At the time of the Committee’s consideration the Bill was at the Committee Stage in the House of Lords.
Proposed Amendment The following amendment had been proposed by Jonathan Morgan, Rhodri Glyn Thomas, Kirsty Williams and Jocelyn Davies: “The Health and Social Services Committee rejects the proposals in the Bill that the Children’s Commissioner for England will have statutory functions over non-devolved matters aVecting children and young people in Wales, and instead calls for the powers of the Children’s Commissioner for Wales to be extended over those non-devolved areas of policy.” A similar motion had been approved the previous day by the Assembly in plenary and the motion was unanimously approved without a vote. Committee Members also made the following points: 9624231012 Page Type [O] 22-07-04 21:28:03 Pag Table: COENEW PPSysB Unit: PAG2
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Part 1 Members were concerned that the Bill as drafted could undermine the position of the Children’s Commissioner for Wales in respect of non-devolved matters. Although the UK Commissioner would have the duty to consult the Children’s Commissioners in Northern Ireland, Scotland and Wales on devolved matters, there was no duty on him/her to follow up issues raised by the Commissioners in those parts of the UK. Consultation could result in the Commissioners for UK and Wales expressing conflicting views on a subject.
Part 5 The committee welcomed the powers to improve the regulation of private fostering. The duty to promote a child’s educational achievement was also welcomed. Targets for educational attainment should be set and these should not be confined to GCSE passes.
General There was disappointment that there was no provision for the repeal of the defence of “reasonable chastisement”. The Committee noted that the Government was considering an amendment to add a clause to that eVect. David Melding AM Chair May 2004
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