Children's Commissioner for Wales Bill

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Mr. Win Griffiths: Is my hon. Friend saying that, constitutionally, it would be in order for the Secretary of State to have the order-making powers provided for in the Bill, although, technically, the Government of Wales Act handed those powers over to the Assembly. What is the constitutional propriety of that? Is anything permitted in relation to an Act of Parliament, simply because we do not have a written constitution?

10.45 am

Mr. Hanson: If the Bill were to give the Secretary of State the powers mentioned by my hon. Friend, he could make the necessary orders. However, we must ask whether the House and the Assembly would consider that desirable; given the devolution settlement, I do not think that they would. The Assembly and the House can examine areas within their spheres of influence. If we adopted the amendments, we would give the Secretary of State greater influence over the daily running of the Assembly than is allowed under the devolution settlement.

I hope that the hon. Member for North Dorset will reflect on that and on the remarks made by the hon. Member for Brecon and Radnorshire, and withdraw the amendment.

Mr. Walter: We are dealing with primary legislation, and it is within the House's power to legislate as it thinks fit throughout the United Kingdom. The Government of Wales Act 1998 should not act as a constraint on our powers. The areas devolved to the Assembly are not the only ones in which there is child abuse or a challenge to children's rights. Several bodies in Wales that have not been devolved to the Assembly under the Government of Wales Act 1998 should come within the remit of the Children's Commissioner.

I sensed, from some remarks, that the Act was perceived as a constitution in defiance of which we could not legislate. It is not; it is an Act of Parliament that gives devolved powers in secondary legislation and administrative matters to the Assembly. This House is the one that legislates, and it is appropriate that it should do in the interests of joined-up government. Under the Bill, the Assembly has discretion, but in relation only to devolved bodies. The Minister suggested that the Secretary of State would be involved in the list of bodies that might come under the commissioner's remit if there were certain levels of joint funding. The amendments would tidy up that process, giving order-making powers to the Secretary of State, not simply as an individual but with the consent of the House. Therefore, there would be a democratic constraint on him.

From the Minister's comments and from the tone of the interventions, I suspect that we will not win the argument at this point. However, we may readdress the matter on Report or in another place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Walter: I beg to move amendment No. 14, in page 3, line 10, leave out

    `by members of the public'.

The Chairman: With this it will be convenient to take the following amendments:

No. 15, in page 3, line 12, leave out

    `, or of steps taken following,'.

No. 34, in clause 4, page 5, line 24, leave out

    `, or of steps taken following'.

Mr. Walter: There is a point of principle here that the Committee should discuss. Amendment No. 14 deals with clause 3(5), which is a catch-all subsection. It states:

    `An order under subsection (2) must not add to Schedule 2A a person whose sole main activity is—

    (a) the investigation of complaints by members of the public about the actions of any other person;'

That means that if someone else is already involved in the game, the Commissioner cannot have a role to play. I am not sure that we would intend that constraint to fall on the Commissioner. It is entirely appropriate that in certain areas of activity, when other bodies are investigating complaints, the Commissioner may like to say, ``But the manner in which you are investigating those complaints is against the best interests of the children involved,'' and may wish to comment on the complaints procedure.

Complaints by members of the public could cover a range of activities. The one that springs to mind is police activity. We have already said that we feel that the Commissioner should have a remit when children are in police custody, and when the police are investigating crimes that are alleged to have been committed by children. We do not suggest that the Commissioner should investigate those crimes, but that he should have a say in the way in which children are treated in police custody.

In order to achieve that, it is appropriate to delete the reference to

    ``the investigation of complaints by members of the public'',

as amendment No. 14 would. Investigation of complaints by members of the public covers principally complaints against the police, but it could cover complaints against local government involving the ombudsman, where children are either the subject of the complaint, the complainants or witnesses to an investigation. To put that constraint on the Children's Commissioner could rule out his becoming involved. The Committee should think seriously about that. I am not entirely happy that the phrasing of our amendment will achieve the desired objective—the subsection may need a fundamental rewrite to put the point across—the reason for tabling the amdts, however, is to open up the discussion.

Mr. Win Griffiths: The hon. Gentleman mentioned complaints relating to the police and to local government. In the latter case, an independently established ombudsman investigates complaints by members of the public. Is the hon. Gentleman saying that the Children's Commissioner should be able to investigate the ombudsman in case the latter does not do his job properly? If he is saying that about an independently established body such as the local government ombudsman, why not raise the same question about the Children's Commissioner himself? Yet that is gainsaid by the amdts. I understand about the police complaints authority, but not about independently established ombudsmen such as the one for local government.

Mr. Walter: If the local government ombudsman were looking at a specific complaint of maladministration in a local authority social services department in relation to children's services, it would not be desirable, in the interests of joined-up government, for the Children's Commissioner to be silent on the matter while the ombudsman carried out his investigation. I want to find an accommodation within the Bill whereby the Children's Commissioner would be considered by the ombudsman to be the more appropriate body to consider that kind of complaint, rather than the ombudsman himself.

The amendments are probing and are intended to tease out where the line lies in relation to complaints about children's services, children in care or children in custody, when another complaints procedure exists. To rule the Children's Commissioner out of court in relation to such an investigation of complaints by members of the public is not necessarily the appropriate way forward. I shall be interested to learn how the Minister regards the interplay between the Children's Commissioner and other bodies with a view to making sure that complaints involving children, children's services, children in care or children in custody are satisfactorily investigated.

Mr. Livsey: The Minister needs to clarify this aspect of the Bill. I understand from what the hon. Member for North Dorset said that the amendment is probing, but it begs some questions. Subsection (5) states:

    ``An order under subsection (2) must not add to Schedule 2A a person whose sole or main activity is—

    (a) the investigation of complaints by members of the public about the actions of any person''.

Under the amendment, the words

    ``by members of the public''

will be removed.

That would have many ramifications if, for example, a member of the public complained to the NSPCC about what was going on in a children's home, or if Children in Wales received a complaint. I would not want a member of the public not to have the right to make such representations, and have them examined, perhaps in relation to a complaint by the National Society for the Prevention of Cruelty to Children, which might then go to the Children's Commissioner.

Many of the amendments under consideration are of the same ilk and have the same function. Will the Minister tell the Committee how this part of the Bill should be interpreted? Amendment No. 34 would remove the words,

    ``, or of steps taken following''.

Presumably, the steps taken following an investigation have been thoroughly examined, and I would have thought that one of the commissioner's functions should be to look at the effect of those steps, which should improve the way in which children are treated in a certain place, or in general. A number of issues need to be spelled out, and I hope that they will be.

Ms Julie Morgan: The amendments are difficult to understand, but the hon. Member for North Dorset has said that they are not to be taken literally but are designed to explore the issues behind them. Those issues are important. They concern the relationship of the commissioner with other independent bodies that investigate complaints, and I shall be interested to hear what my hon. Friend the Minister has to say about that.

11 am

Mr. Hanson: The provisions that the amendments would alter were inserted by the Government with a clear purpose, which I hope to be able to explain to the Committee. Essentially, it is to prevent the commissioner from reviewing the activities of other bodies set up to deal with complaints by members of the public or to monitor investigations by such bodies. My hon. Friend the Member for Bridgend brought much of his ministerial experience to bear in his intervention, which highlighted the Government's concerns. There is a similar provision in schedule 9 to the Government of Wales Act relating to the Welsh administration ombudsman. The key to the Government's position is the idea that there should not be confusion between the roles of broadly similar bodies.

The amendments have several different effects. Amendment No. 14 would restrict the order-making power further by preventing bodies from being subject to review by the commissioner if their principal activity were investigation of any complaint about the actions of anyone in particular. At present the restriction relates to bodies who investigate complaints by members of the public. The amendment appears to be intended to widen the restriction to encompass a body, if such a body existed, whose role was to investigate complaints other than those of the public. I hope that Opposition Members do not want to restrict the potential in the Bill to add bodies to the commissioner's jurisdiction where it is sensible to do so.

Amendments Nos. 15 and 34 would have the opposite effect. They would narrow the existing restrictions so as not to exclude bodies whose main activity might be to follow up an investigation. However, that activity is closely associated with the remaining words of the provision, which speaks of

    ``supervision or review of . . . an investigation''.

It would be more sensible to retain the provision as drafted.

I hear what hon. Members have said about the amendments. In essence, our aim is to ensure that there is not confusion between the roles of similar bodies. The Welsh local government ombudsman and the Children's Commissioner, have different roles in dealing with the public. It is important to have clarity about those roles and not to involve one body in examining the concerns of another body.

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