Nick
Ainger: The hon. Lady asked me a number of questions based
on the amendments to schedule 1 that she has tabled. The first question
was why it is the First Minister who appoints the Commissioner. As I
indicated in my opening remarks on clause 1, the Bill follows the
Children’s Commissioner for Wales Act 2001 and the process
followed by the Assembly for the appointment of a Children’s
Commissioner. The selection method was unique and very inclusive, with
children and not only Government Members of the Assembly but also
Opposition Members involved in the process. The Assembly has given a
commitment that it will be actively involving older people in the
appointment and intends to consult the National
Partnership Forum for Older People about the selection process. I hope
that that responds to the point raised about the
appointment. The hon.
Lady also asked about the Assembly’s indication in the statement
of policy intentions that it would bring forward regulations for the
term of office to be for four years, renewable once. If so, she asked,
why not put it in the Bill. First, that is a matter for the Assembly, a
devolved matter. Also, bear in mind that, were any changes to that term
of office needed in the future, amendment would require us to respond
with primary legislation. It would be better to leave that to the
Assembly, for their purposes, and to let them bring forward their
regulations once the Bill has been enacted. The period seems
reasonable. That has been accepted generally. The current
Children’s Commissioner, again by regulation, has a term of
office of seven years; a period of around that time seems sensible, as
does plus four
years. The hon. Lady
asked about what constitutes good behaviour or misbehaviour. Holding
office during good behaviour and termination of office for misbehaviour
are common concepts in the appointment of public office holders and are
supported by a body of case law. According to the case law,
misbehaviour would mean improper exercise of the functions of the
office, non-attendance or neglect of or refusal to perform the duties
of the office. In certain circumstances, it could include behaviour
more broadly—for example, being found guilty of a serious
offence such as
fraud. The hon. Lady
asked about the removal of the commissioner from office, which will
also be dealt with by regulation in the Assembly. I will make regular
reference to the statement of policy intentions, so a copy is on the
Table for the Committee to refer to directly. Paragraph 66 says that
the regulations will specify circumstances for removal, and those
grounds will be tightly
drawn. Returning to the
amendments themselves— [Interruption.] Did the hon. Lady
want to
intervene?
Mrs.
Gillan: I am reading the statement of policy intentions
and my paragraph 66 says something completely different, on estimates.
Perhaps I do not have the latest
version.
Nick
Ainger: The version that I have is definitely paragraph
66: “The
Regulations will specify the circumstances in which the First Minister
may relieve the Commissioner of
office”. That is the copy
on the Table, so we will use it for reference
purposes. Amendment No.
6 would remove the Assembly’s discretion to decide the
commissioner’s term of office by specifying it in the Bill. We
do not agree with that. The discretion reflects the devolution
settlement, and in our view it is entirely proper that the Assembly
should be able to appoint the commissioner and determine his or her
term of office in
regulations. Amendments
Nos. 2 and 3 also seek to remove the Assembly’s discretion in a
devolved matter. Amendment No. 3, taken with amendment No. 2, would
oblige the Assembly to make payments to the commissioner of such
amounts at such times and on such conditions as the Secretary of State
thinks
appropriate. But it will be the Assembly’s money; it is their
budget. The Bill will attract no new money from this place. It is
therefore entirely appropriate that the Assembly should determine what
payments should be made, under what circumstances and on what
conditions. Amendments
Nos. 7 and 4 concern the commissioner’s operational independence
from the Assembly. Amendment No. 7 seeks to ensure that regulations
made by the Assembly about the circumstances in which the commissioner
may cease to hold office will not compromise the commissioner’s
independence. Amendment No. 4 seeks to remove the Assembly’s
ability to pay compensation to a person who has ceased to be the
commissioner where they feel that special circumstances make it
appropriate to do so.
I assure the
Committee that the provision about the circumstances in which a
commissioner may cease to hold office is standard in commissioner and
ombudsman legislation. The Assembly Government have said in their
statement of policy intentions that they intend to make
regulations—I remind the Committee that those regulations will
be subject to the Assembly’s rigorous subordinate legislation
procedure—to allow the First Minister to remove the commissioner
from office on the grounds of misbehaviour or mental or physical
incapacity, as I explained
earlier.
Mrs.
Gillan: Can the Minister explain exactly what the special
circumstances might include, giving us some
examples?
Nick
Ainger: No, I cannot. Each case would have to be judged on
its merits, and it would be wrong to list circumstances in which the
commissioner could be removed. As I said, it is quite clear what
constitutes misbehaviour, but it is general. There might be a specific
incident concerning the commissioner’s credibility. He might not
have committed an offence or been found guilty of a serious crime, but
he might well find himself in circumstances that challenge his
credibility. Those would be the sort of special circumstances in
question.
Mrs.
Gillan: I am grateful to the Minister. May I lay my cards
on the table concerning one of my fears? The commissioner will be paid
a salary by the Assembly and appointed by the First Minister, and a
clause in the enabling legislation will enable any sum to be handed out
to him in special circumstances. If a commissioner filed a critical
report about the Government or any of their operations, it would not be
outwith the realm of possibility for somebody to say, “Tone down
the report and don’t make it too strong, because we have the
power to give you a nice pay-off at the end of your contractual
year.” I am
sure that nothing like that should or would happen, but it is a fear in
the back of my mind when I see in the draft legislation the ability to
make an ex gratia payment in woolly circumstances. Somebody in office
who was perhaps not the most scrupulous person could make a point of
promising a payment, using the legislation as a vehicle to water down
or even suppress criticism. Will the Minister set my mind at rest that
the Bill contains safeguards? At the moment, I cannot see
them.
Nick
Ainger: I understand the hon. Lady’s point, but she
could also make it about the Children’s Commissioner, because
exactly the same regulations apply. The Welsh people’s
experience of the Children’s Commissioner is that he has not
been afraid to raise difficult and awkward issues or to criticise
organisations, including the Assembly, when necessary. He has been a
forthright and true champion of children in Wales. As I said earlier,
the conditions relating to any special payment are already established
for other public office
holders. 11
am David
T.C. Davies (Monmouth) (Con): The Minister is right in his
comments about the Children’s Commissioner. The point is that
that is because he is the sort of individual who is not cowed by
Government or by any sort of threat. The point being made by my hon.
Friend the Member for Chesham and Amersham (Mrs. Gillan) is that the
guidelines do not categorically ensure that pressure could not be
exerted on an individual to obtain compliance with Government
wishes.
Nick
Ainger: As I said earlier, all public office holders have
that arrangement, and I have yet to hear of any of them being
criticised because they have not taken on the challenge of a difficult
issue concerning the Government or whoever is paying them. All that I
can say to the hon. Member for Chesham and Amersham is that although,
theoretically, that could happen to anyone, the facts are that so far
it has not, to my knowledge. I am sure that she would quote me an
example if she had one.
I understand
the hon. Lady’s point, but I want to reassure her and the
Committee that in relation to the special payments, for example,
paragraph 3(3) of schedule 1 provides that the Assembly may pay
compensation to a person who ceases to be the commissioner only if it
considers that there are special circumstances making that appropriate.
Such circumstances might be the termination of the term of office
because of ill health, or a decision by the Assembly to abolish the
office or amalgamate it with another, which happened in the case of
ombudsmen in Wales.
There would be direct
accountability to the National Assembly, which would scrutinise the
decision and the sum paid. That would go before the Audit Committee,
for example, if there were any question about its validity. I hope that
those comments will enable the hon. Lady to accept that there is no
real problem, bearing in mind all the various checks and balances that
would be set up to ensure thorough scrutiny of any such
payment. I think that
I have covered all the issues relevant to the amendments and the points
raised by the hon. Lady, and I ask her to withdraw the
amendment.
Mrs.
Gillan: I am reassured by some of the Minister’s
points in response to my questions, and therefore I beg to ask leave to
withdraw the
amendment. Amendment,
by leave, withdrawn.
Mrs.
Gillan: I beg to move amendment No. 5, in schedule 1, page
18, line 33, leave out ‘must' and insert
‘may'.
The
Chairman: With this it will be convenient to
discuss amendment No. 16, in schedule 1, page 19,
line 8, leave out from ‘appoint' to end of line 9 and
insert ‘up to 30 other staff to
assist him in the discharge of his
functions. ‘(6) The
Commissioner may appoint staff in excess of the limit in sub-paragraph
(5) only with the approval of the
Assembly.'.
Mrs.
Gillan: The amendments are, again, vehicles for probing
the Minister’s intentions. Paragraph 4 of the schedule
states: “The
Commissioner must appoint a deputy
Commissioner.” I want to
ask why there must be a deputy at all, and why there is an imperative
to appoint one. The role that the commissioner will take on is one that
might, ordinarily, have been expected to be taken by Ministers. When I
was a junior Minister in the Department for Education and Employment I
was the Minister for older workers, and responsibility for getting
employers and recruitment companies to consider older candidates
favourably rested with me, as the Minister. To all intents and
purposes, the commissioner’s role could have been played by a
Minister. The
appointment of a deputy commissioner will ensure that there is another
person to take responsibility if the commissioner is not available to
do so, but why is that an imperative and why should there be only one
deputy? In this age of equality, when we try to ensure that both sexes
are fairly represented, it would have been more equitable had the
commissioner had the discretion not only to appoint a deputy, but
perhaps to appoint one or two, including one man and one
woman. The Bill
suggests that we want to micro-manage what the commissioner does in his
or her office. Whenever we try to introduce more detail into
legislation, there is always the fall-back position that we will leave
it to regulation or to the Assembly. If we can use the principle of
devolving power to the Assembly in other cases, we should surely
devolve power to the commissioner in this case to allow him or her to
make up their own mind as to how the office is constituted.
Amendment No.
16 suggests that the Bill limit to 30 the number of staff who can be
appointed to the commissioner’s office. Indeed, in most of the
documentation on the Bill, up to 30 staff are expected to work in the
commissioner’s office, and again I assume that that is based
partially on the experience of the Children’s Commissioner.
However, the geographical spread and communication problems that we
shall be looking at, although present when one deals with a younger,
junior audience, are often aggravated when one deals with senior
citizens, as was mentioned earlier during scrutiny of the
Bill. There is a worry
that the costs could grow like Topsy. The financial provisions for the
Bill envisage the set-up costs to be approximately £500,000 and
the annual running cost to be £1.5 million. If we are looking at
a payroll of 30-plus and a multiplicity of offices, it is easy to see
how the budget could start to come under pressure. If we decide that 30
is the optimum size to
carry out the commissioner’s function, based on the experience of
the Children’s Commissioner, we should say so in the Bill, or at
least give the matter some consideration. In Wales, we have had the
bonfire of the quangos—I believe that that is the
terminology—but we are creating another quango, on which there
are no limitations and which has the potential to get carried away with
itself. I would
therefore be interested to hear what the Minister has to say about the
staffing levels and the positions in the commissioner’s
office.
Nick
Ainger: The hon. Lady makes some probing points about the
appointment of the deputy and asks why the issue is dealt with in the
Bill, rather than being left to the discretion of the Assembly or being
dealt with in secondary legislation.
Amendment No. 5 would remove the
requirement in schedule 1 that the commissioner appoint a deputy and it
would replace that requirement with a discretionary power. Schedule 1
follows the successful model of the Children’s Commissioner for
Wales, guaranteeing that there is a deputy who can undertake the full
range of the commissioner’s functions and act on his or her
behalf. The deputy will be able to take charge during any vacancy in
the office, or when the commissioner is absent or unable to act for any
reason. That will provide clarity, avoid confusion and guarantee
continuity of service to the public. The hon. Lady asks whether in
these days of equality, the deputy should be a
woman.
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