Children's Commissioner for Wales Bill

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Mr. Llwyd: I am listening carefully to what the Minister is saying. I ask him to return to the question posed by the hon. Member for Cardiff, North. If the National Assembly decided that it wanted to ensure, through the job description for the commissioner, or by other means, that the commissioner promoted compliance with the UN convention, would there be any problem with that? If not, what is the difference between the Assembly making such a decision and the Committee putting a similar requirement in the Bill?

Mr. Hanson: Those are important points, but I shall come to them in a moment.

I would like to confirm that the broad vision of the UN convention is important. Many specific rights have been mentioned, such as the right to protection from different forms of violence, the right to receive guidance on dangerous drugs and sexual abuse, and the right to be protected from abduction, or being sold. The Government and the Assembly would not commit themselves to those rights. That is why the ratification has our support.

Mr. James Gray (North Wiltshire): The hon. Gentleman made a slip of the tongue. He said that the Government would not support the rights that he listed. I think that he meant that the Government would support them.

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Mr. Hanson: If I made a slip of the tongue, I am sorry. We would certainly support those rights. Clearly, the Government do not believe that there should be a right to sell children. Members of the Committee may check that in Hansard. I am grateful to the hon. Gentleman. It is good to have the Opposition Whip on one's side, wide awake and keeping an eye on matters.

The Assembly gave a strong commitment to the convention in its draft strategy for children and young people, ``A Framework for Partnership'', which is out for consultation. The positive references contained in that document, together with those in the advertisement and job description for the post of commissioner, give me confidence that the Assembly's support for the convention will underpin the work of the commissioner. That has been evident from the work that it has undertaken so far.

In carrying out his functions, the commissioner will draw on other sources of guidance and relevant rights-based legislation—for example, the Human Rights Act 1998. The Assembly will have regard to the convention when it frames the commissioner's workload and gives him directions. The principles of the convention underpin the work of the Assembly and the Government, and they both believe in the importance of its role with regard to the Bill. However, difficulties remain in terms of incorporating it into domestic law. I hope that that explanation gives comfort to members of the Committee.

Amendment No. 8, which was tabled by the hon. Member for Ribble Valley, would add the word ``interests'' to the definition of the commissioner's principal aim in clause 2. I am entirely sympathetic to the thinking behind that. However, having taken advice from officials in my Department and in the Assembly, I can assure the hon. Gentleman that his concerns are fully met by the current formulation of the Bill. I am confident that the addition of the word ``interests'' would not add to the broad thrust of the commissioner's work in dealing with such matters. As the hon. Member for Meirionnydd Nant Conwy said, the Bill uses the words ``rights'' and ``welfare'', both of which are strong words that should be sufficient to deal with the hon. Gentleman's concerns. We shall return to the other matters that he mentioned, such as cross-border issues and the provision of services, in due course.

My hon. Friend the Member for Bridgend impressed me greatly with his comment that the Bill is about changing the way in which people think about children. The tone of the Assembly's approach, of the Government's approach and, I hope, of my approach, should make it clear that the Government believe in the ratification of the convention. It underpins the work of the Assembly, it is in the job description, it is in the draft strategy that is open to consultation in the Assembly and it is not something to which the Government are opposed. However, given the domestic law issue, I ask the hon. Gentleman to reflect on our discussion of the amendments, and I hope that they will be withdrawn today.

Mr. Win Griffiths: I am heartened by the positive approach that my hon. Friend the Minister has taken to the debate. I was especially struck by his commitment to the Assembly's approach to the issue through the job description, the role of the commissioner and the current consultation concerning the promotion of compliance with the United Nations convention. I am happy that issues relating to the convention will be part of the commissioner's role. However, I understand that there would be serious legal problems if we were to put compliance with the convention in the Bill. Due to the requirements of consultation, there is no prospect of getting a Bill through the House before the next election—even if it were to be in May or June 2002. Therefore, legislation incorporating the convention into UK law is something that we must consider on the other side of the election. Given my hon. Friend's remarks about amendment No. 44, I shall not press it.

Mr. Evans: I listened carefully to the Minister's response to amendment No. 8. Do we deal with amendment No. 9 later, or shall we deal with them together?

The Chairman: I shall deal with them together, when I know what the hon. Gentleman proposes to do.

Mr. Evans: Thank you, Mr. Jones, for making it easier on me. Hon. Members on both sides of the Committee generally agree on these amendments. As I said earlier, amendment No. 8 was designed to broaden the role of the commissioner, so that issues not covered by ``rights'' and ``welfare'' would be mopped up by ``interests''. The Minister said that ``rights'' and ``welfare'' would mop up all issues, so I shall accept his view and not look to press amendment No. 8 to a vote.

We carefully worded amendment No. 9, which deals specifically with the United Nations convention, to add:

    with particular regard to the United Nations Convention on the Rights of the Child.

The use of ``with particular regard'' meant that it did not have to be incorporated in UK law. The Minister said that the Assembly mentioned the convention in its job description, despite it not being part of UK law. I assume that applicants would have had to pay due regard to the convention as something they believed in. Similarly, all that we are saying is that the commissioner would have to believe in it. Similarly, all we are saying is that the commissioner would have to believe in it. Although it is not part of UK law, it was ratified by the Conservative Government and has the Government's full support. I therefore see no reason why the amendment should not be accepted.

This issue is important not only for Wales but for the international community. We all accept that the Assembly will pay regard to the convention through the commissioner's job description and so on, but if it is not stipulated in the Bill—

Mr. Griffiths: I am not a lawyer, and I am fairly sure that the hon. Gentleman is not either. However, I should have thought that if the convention were to be included in the Bill it would immediately become a legal requirement and that, because it had not been incorporated into British law, this part of the Bill would thereby become defective. Did the hon. Gentleman receive any legal advice stating that it could be incorporated into the Bill without any legal implications for the standing of the convention?

Mr. Evans: I am grateful for that intervention. The simple answer is no, I received no legal advice. The hon. Gentleman is right—I am not a lawyer, I am proud to say. [Interruption.] As my hon. Friend the Member for North Dorset says, I am a humble shopkeeper.

On common sense grounds alone, I do not understand why the Bill cannot include a requirement to pay regard to the convention. I recognise the hon. Gentleman's concern about making the Bill defective, but neither do I want to make it ineffective. If we can make it more effective by ensuring that it pays due regard to the convention, we should seriously consider doing so.

I shall not press the amendment to a vote. However, it gives us an opportunity to review the legality of the matter in the light of comments by the Minister, children's charities and the Assembly. If we can strengthen the Bill by including the convention without incorporating it—at the same time ensuring that we do not make the Bill defective—we should revisit that possibility.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

Review of exercise of functions of Assembly and other persons

Mr. Livsey: I beg to move amendment No. 42, in page 2, line 15, at beginning insert—

    `(A1) The Commissioner may make appropriate representations about any matter affecting the rights or welfare of children ordinarily resident in Wales.'.

The Chairman: With this it will be convenient to take amendment No. 46, in page 2, line 15, at beginning insert—

    `(A1) The Commissioner may make appropriate representations to the National Assembly about any matter affecting the rights or welfare of children ordinarily resident in Wales.'.

Mr. Livsey: Amendment No. 42 is more simple to debate than the previous amendment, which dealt with the grey area of incorporating the convention into British law.

We now return to part of the territory that we covered during the debate on clause 1. It is important to recognise that the provision in amendment No. 42 would be all-encompassing. It states:

    The Commissioner may make appropriate representations about any matter affecting the rights or welfare of children ordinarily resident in Wales.

That is a one-off statement. It would mean that the remit of the commissioner could encompass all aspects of the rights and welfare of children who are ordinarily resident in Wales.

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The amendment would allow the commissioner to be a truly independent watchdog and champion of children, and would strengthen the Bill in four key ways. First, it would allow the commissioner to report on potential and actual primary legislation that is outwith the Assembly. Secondly, it would give the commissioner the right to comment freely on non-devolved matters and functions that impact on children in Wales. Thirdly, it would enable the commissioner to represent the interests of children who are ordinarily resident in Wales, but who receive services or are accommodated outside Wales. Fourthly, it would allow the commissioner to consider, and make appropriate representations about, matters that proved to be key in the light of consultation and other forms of contact with children and young people in Wales.

As a constituency Member of Parliament for Brecon and Radnorshire, I know that children in Wales have considerable contact with areas outside Wales. Hon. Members may be aware that the boundary between Powys and England stretches some 132 miles—the equivalent of travelling from the Severn bridge to the Hammersmith flyover. The ways in which people move back and forth across that border are therefore legion. We have children in hospitals in Shrewsbury and Hereford. Others travel to Birmingham for treatment, while those from the south-east of Wales travel to Bristol. Sadly, there are also children who are sent to penal institutions across the border.

The points to which I have referred, including empowering the commissioner to comment freely on non-devolved matters and functions, are important. They touch on the Home Office in particular, and on local government in England, which we cannot ignore. Often, local government is responsible for children's homes and for fostering children. Several of my child constituents are in foster homes in Shropshire, for example. Members of the Committee may not be aware that my constituency has 12 neighbouring constituencies—more than any other in Britain—and people move around in all manner of directions. It is important that we represent the interests of children ordinarily resident in Wales but receive services or are accommodated outside Wales. That applies to hospitals, local government establishments and fostering services, and in various other situations.

Amendment No. 42 reflects the description of the general power of the National Assembly for Wales in section 33 of the Government of Wales Act 1998. If the Government were so inclined, they could adopt a wording such as, ``The Children's Commissioner may consider, and make appropriate representations about, any matter affecting children in Wales that is compliant with the Government of Wales Act 1998.'' Indeed, it is very important that we have such a catch-all clause.

In passing, I should mention amendment No. 46, which is relevant to amendment No. 42. Where amendment No. 46 states that the commissioner

    may make appropriate representations to the National Assembly about any matter affecting the rights or welfare of children ordinarily resident in Wales,

amendment No. 42 is far more wide-ranging. It covers eventualities that I mentioned in relation to non-devolved matters, and services received, outside Wales.

The amendment echoes the wording of the Government of Wales Act 1998, in that it includes specific references to consideration, which would allow the commissioner to review issues of concern or potential concern. The Government have argued that the commissioner can comment informally on any matter, but how much weight is carried by an informal comment? How much power is there behind it? Informal comment is insufficient because the post is created by statute, so it must carry the force of statute.

The commissioner is required to act within his statutory authority. The Bill restricts the Commissioner's ability to do that, as outlined in the report of the Health and Social Services Committee of the National Assembly, although the job description for the post refers to that. Therefore, the commissioner will not be on a par with existing European children's commissioners and ombudspeople. That is especially true compared with Scandinavia, where I know that some members of the Committee have witnessed the legal weight carried by its commissioners.

The hon. Member for Meirionnydd Nant Conwy and I—and perhaps other members of the Committee—support the amendment because the role of the commissioner must have teeth, not only with regard to the Assembly, which is obviously important, but to non-devolved areas. We must ensure that the commissioner is a champion for all Welsh children, wherever they may reside.

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