Children's Commissioner for Wales Bill

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Mr. Llwyd: The Minister said that there was good will on both sides of the Committee. Clearly there is good will, but there seems also to be optimism from Labour Members, because the Minister says that, given the commissioner's stature, any Department will respond urgently and properly to his request. Does he know that it takes nine months to a year to get a response from the Wales Office to a parliamentary Select Committee report on Welsh affairs?

Mr. Hanson: In the spirit of cross-party co-operation, I take on board the points that the hon. Gentleman has made. The Secretary of State and I will try to respond quickly to many of the issues raised. I do not know to which report he refers, but I am sure that the response is in the post, as they say.

I am trying to put the issue in context, so that hon. Members know that the Children's Commissioner may, without statutory backing, examine issues and, if appropriate, make representations and comments to Government, and/or feed them through to the Assembly.

Mr. Rowe: The general tenor of the Minister's remarks is reassuring. However, I am concerned that when the commissioner responds to young people's concerns, his view will inevitably at times be in sharp disagreement with Government policy. It is his inability to make formal comment on those issues that lies at the heart of my anxiety.

Mr. Hanson: There will be an opportunity for informal comment, and the commissioner may make recommendations to the Assembly, which may consider whether to support those recommendations by formally using its powers to make representations. The commissioner is independent of the Assembly, so he may even criticise Assembly policy. That is part of the nature of his business, and we have been keen to secure that wide-ranging role for him.

Hon. Members have focused on child abuse aspects of the commissioner's role. They are important, and the commissioner will want to take an interest in key issues about the specifics of child abuse. We should not forget that he has an important role in ensuring that child protection mechanisms are working properly, but he cannot replace the existing statutory child protection agencies. He may take an interest in the implication of child abuse cases, but he is not in the business of replacing statutory agencies such as the social service inspectorate in Wales. That role was considered and examined by the Waterhouse report but, in establishing so quickly the post of commissioner, it has never been the intention of the Assembly or the Government for him to have a narrow child protection focus. He should consider wide issues and raise points generally.

Mr. Livsey: Given that the Assembly, under section 33 of the Government of Wales Act 1998, is able to

    consider, and make appropriate representations,

surely the commissioner should have the same ability? Although there is a lot of good will in what the Minister says, there is a hint that the effectiveness of the commissioner will be limited. Perhaps the commissioner could consider matters not within the purview of the Assembly that could affect children directly, such as Home Office or social security matters.

Mr. Hanson: I reiterate the point that I made earlier. We need to keep the role of the commissioner in context; he is the creation of the Assembly, which has prime responsibility for a range of issues, such as health, education, social services, housing and local government. Within that purview, he will have direct responsibilities under the Bill to take action. He will have the opportunity to comment to Government Departments, if a case is brought to his attention on a non-devolved issue, or if lessons are learned as part of the overall review of individual or general issues. He may also make comments to the Assembly, which can consider them. I hope that the Government's intentions and objectives are clear.

The third issue mentioned was cross-border matters, which is obviously important. Several hon. Members asked whether the commission will have jurisdiction over services provided in England for children who are ordinarily resident in Wales. The Opposition's amendments are, I suspect, designed to tease out the commissioner's roles and responsibilities in cross-border issues.

Although the commissioner's jurisdiction under the Care Standards Act 2000 and the Bill does not extend to services, he will be able to review the actions of public bodies covered by the Bill in arranging for services to be provided outside Wales. For example, the commissioner's remit extends to a decision by, say, Denbighshire county council to provide a place for a child in a children's home in, say, Cheshire, outside Wales. The county council has a responsibility as the funding body, and if difficulties were experienced with the children's home in Cheshire, Denbighshire county council and its policy decisions in placing the child would be accountable to the statutory bodies in the National Assembly's framework, and to the commissioner, who would review the placement and the policy objectives.

The same policy would be operable with regard to the hospital in Manchester that has been mentioned. The commissioner would have a responsibility to examine the policy implications of a health authority or trust responsible to the Assembly in Wales that arranges for medical treatment outside Wales. An element of examination, jurisdiction and accountability is involved in such issues.

Mr. Walter: The Minister says that if a child who is resident in Wales is sent to a hospital in England, the commissioner will be able to review that decision in light of the evidence. How will the commissioner come by that evidence? Will he have the power to visit, for example, Great Ormond Street hospital and question its officials, who work for the national health service not in Wales but in England, on hospital policy?

Mr. Hanson: The commissioner will have the power to question the funding authority responsible for that decision. In such circumstances, the funding authority would be the national health service in Wales—the trust or the health authority that took the decision to pay for that treatment by another organisation. As in the case of non-devolved issues and the relationship with the Department of Health, services provided by an agency in England may raise issues to which the commissioner can refer in discussions with the National Assembly and the trust involved and in representations to the Department of Health.

Mr. Win Griffiths: We must bear in mind the fact that supervisory bodies are already established for the quality and efficacy of public services. The NHS has the National Institute for Clinical Excellence. Presumably, if a child's parents reported an incident in an English hospital to the Children's Commissioner following the procedure that my hon. Friend has outlined, the commissioner could approach the trust or health authority in Wales, which could, in a quite proper and institutional manner given the supervision already established, inquire through NICE about what has happened. The Children's Commissioner for Wales could remain on top of the investigation by maintaining close contact with all those who already have a statutory duty to ensure that children treated by the national health service receive the appropriate treatment.

Mr. Hanson: My hon. Friend speaks with the experience of a former Minister in the Welsh Office. He highlights the type of relationship that exists. As I have said, the role of the commissioner is not to supplant existing regulatory functions in England and Wales. The relationship outlined with regard to cross-border issues shows that there is accountability and a system to review the policy and practices of funding bodies in taking decisions to extend individual services on a cross-border basis. I hope the commissioner will be able to play a full role in examining those issues, if they are brought to his or her attention.

The hon. Member for Faversham and Mid-Kent raised the matter of independent schools. The functions of public bodies are already regulated by Government, so it is a natural extension for the commissioner to have jurisdiction over public bodies. The ombudsman's role is generally restricted to the public sector and to bodies carrying out public service. Therefore, the commissioner will have no direct jurisdiction in similar circumstances, because that will be the responsibility of the parents who have chosen to send their child to an independent school.

As my hon. Friend the Member for Bridgend said, independent schools are regulated by existing bodies responsible for child protection and other issues. The commissioner has no direct responsibility for the parental choice exercised by sending a child to an independent school. However, should an educational authority in Wales choose to purchase provision in an independent school in England for a particular person, perhaps for special needs services, the authority's decision, or the policy decisions behind that, could come under the commissioner's jurisdiction.

Mr. Livsey: I visited a special needs school in my constituency last Friday, and was amazed to learn that one of the children was placed in a special needs school in Scotland. Could the Minister bear that in mind? I am not asking for an immediate response, but I was amazed that such a situation had arisen in my own constituency, and it is probably replicated elsewhere.

Mr. Hanson: We have a knotty double devolution problem to contend with, and it is probably best that we investigate that aspect. However, the principle is the same. If the Powys authority chooses to purchase provision in Scotland for an individual ordinarily resident in Powys, the commissioner can, and should, if appropriately approached, consider the general and specific policy implications of that decision.

Mr. Walter: I am hopeful that the Committee will tease out from the Minister the correct answer, as this point has now been made in several different ways.

What is the commissioner's role in individual cases? The Minister referred to policy implications, but we are considering individual cases. When I was a member of the Select Committee on Health, we examined the issue of children in care. Local authorities were using foster carers who lived considerable distances from the authority's jurisdiction, and as a result there was considerable disquiet about the fact that foster carers lacked supervision. We had individual cases of foster parents not doing their job properly. What would the commissioner be able to do if a child was resident in Wales and paid for by a Welsh public body, but was being cared for in England? We are concerned about individual cases, not the policy implications. Would the commissioner take it upon himself to travel to England to investigate such cases?

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Prepared 23 January 2001