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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 576-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE WELSH AFFAIRS COMMITTEE
THE PROPOSED LEGISLATIVE
COMPETENCE ORDER
Thursday 15 May 2008 MS MARIA BATTLE and MR GARETH JONES GWENDA THOMAS AM, MR MIKE LUBIENSKI and MS DONNA DAVIES HUW IRRANCA-DAVIES MP, MR GETH WILLIAMS and MR BRUCE CLARK Evidence heard in Public Questions 1 - 127
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Welsh Affairs Committee on Thursday 15 May 2008 Members present Dr Hywel Francis, in the Chair Nia Griffith Mr David Jones Alun Michael Hywel Williams Mark Williams ________________ Memorandum submitted by Children's Commissioner for Wales
Examination of Witnesses Witnesses: Ms Maria Battle, Deputy Children's Commissioner for Wales, and Mr Gareth Jones, Policy Officer, Children's Commissioner for Wales, gave evidence. Q1 Chairman: Welcome to the Welsh Affairs Committee. For the record, would you please introduce yourselves. Ms Battle: My name is Maria Battle. I am the Deputy Children's Commissioner for Wales. Mr Jones: I am Gareth Jones, Policy Officer, Children's Commissioner for Wales. Q2 Chairman: Perhaps I could begin by asking you, as the independent champion for Children in Wales, what your opinion of this proposed Order is. Ms Battle: We welcome this Order, particularly as it is one of the first LCOs that have come from the National Assembly and it is concentrating on vulnerable children and poverty - which is at the very heart of what we do. Our statutory aim is to safeguard and promote the rights and the welfare of all children in Wales, so we welcome the Order. We think it is very important that the legislation within this area is consolidated and is clear. We also welcome the breadth of the Order: going from the emphasis on early intervention and support for children and their families, as well as for children who are in care, children who have left care, and the broad poverty agenda. We believe it has the potential to make a difference. It is only the beginning, but it is a very important beginning. We do support the potential of it and the intention behind it. Obviously the real test will be how this makes a difference in the lives of those children in Wales who are vulnerable and who are living in poverty. As an organisation, it really is part of our role to scrutinise whatever measures, if this does go through, do arise from the Assembly and how they are implemented. Q3 Chairman: Is it your view that these powers should be given to the Assembly Government in perpetuity? Would that be in the best interests of children? Ms Battle: Yes, I do believe that. Since devolution, we know as a fact that the policy agenda, as it has grown and as it has moved forward, has diversified within this field from the English agenda. It is a principle of their good governance that we have local solutions for local problems. We are working closely with the children and young people in Wales. We have found we are more able to influence the policy agenda on behalf of children and young people in Wales because everything is more open and more accessible to us. I think these powers are absolutely crucial for the children and young people in Wales. Q4 Alun Michael: I certainly would share your welcome for the emphasis on the interests of children, particularly vulnerable children, and on poverty. The question we need to ask in scrutinising this is what difference it will make. In the evidence you gave to the Assembly Committee previously you said, "At the moment we have a huge deficit between aspirations in policy and law and the actual experience of children and young people ... in accessing services?" How is this Order going to help to close that gap? There are many sayings about the law not always doing what it is set out to do. Ms Battle: Absolutely. Q5 Alun Michael: What we have here is a piece of legislation. Why will passing this Legislative Competence Order help to close that gap which you have identified in your evidence? Ms Battle: I think it has the potential to help close the gap, but it cannot be the only thing. As you quite rightly say, we could have a piece of legislation which does not make a difference, is not enacted. Within this field - it is quite a complex field, there are lots of different Acts, et cetera - it is important to have a clear framework. It is important to specify exactly what the duties on the statutory authorities are. For example, in that field of early intervention, in the field of children in need, it is discretionary at the moment whether or not a local authority intervenes and helps. If there was a duty within the legislation, then it would perhaps be easier for us as a body to help to enforce that or to influence the enforcement; it would be easier for families and parents to know what rights they have. But that is only one part of it. I think it needs to be a lot broader than that. If we really are going to close the gap between legislation policy and practice, then we have to look at a lot of other things. We have to look at resources. We have to look at the reconfiguring of resources. We have to look at the training of staff, the culture that we have, the support of staff - as we get staff who are desensitised. We have to look at the management's values - the basic values, going back to the United Nations Convention. We have to support all those who are in the frontline. They need to know what the guidance is and what the policy is. There needs to be enough of them and they need to be resourced in order to respond to the needs of children and young people. Q6 Alun Michael: I agree with everything you have said there. The question is: How will passing this Legislative Competence Order help to make sure that those things happen? Ms Battle: Obviously it is the LCO and everything will be in the measures. It will be the measures that will enable us to scrutinise in more detail. I would hope that the measures would specify clearly and transparently what the duties on local authorities are and what the duties on statutory agencies are. Q7 Alun Michael: Forgive me, at a later stage it is for the Welsh Assembly Government to bring them forward for the Assembly to then scrutinise those measures. But at the moment we have to ask why bringing this Legislative Competence Order to the Assembly will lead to the results that you are saying. Ms Battle: I think there is the potential there for the Welsh Assembly Government to legislate within this competence, which would make it clearer what the duties are. Because there are not many LCOs or the ability to make legislation in Wales, I think we have the potential for the Welsh Assembly Government to respond more quickly than perhaps if it went through a parliamentary process and, also, to respond to the needs within the Welsh context of the children and young people. Q8 Alun Michael: It is partly the flexibility. Ms Battle: The flexibility, the timing, and the knowledge within the Welsh context. Q9 Alun Michael: You also made this comment to the Assembly Committee, "I do not think it should be redrafted; it should be drafted as widely as possible." We have heard in the supplementary report of the Assembly Committee that they do not feel that they have been able to scrutinise the Legislative Competence Order as effectively as they would have liked. That is a bit of a puzzle to us - indeed, we think they should be able to scrutinise it properly. Do you have any concerns about the drafting as it now stands, as it is before us? Ms Battle: We are broadly satisfied with how it stands. We are broadly satisfied with the definition of vulnerable children and I think that reflects the common opinion of most of the bodies who have responded to the LCO. We have a few suggestions which we would like to pick up. For example, the bodies that we believe should be included in the duty to co-operate. We think could be broadened. Q10 Alun Michael: Perhaps I could say at this stage, because I do not want to delay the Committee, that a number of times in your response to my questions you have said "for example" and if there are specific elements that would help to ground this in improvements for the quality of life for children, it might be helpful for your evidence to be supplemented. Ms Battle: Absolutely. We would welcome that. Thank you. Q11 Mr Jones: You say you are broadly satisfied. The inference I take from that is that there may be some respects in which you are not satisfied. Any further memorandum should indicate, please, those respects in which you are not satisfied with the draftsmanship of the Order. Ms Battle: We have some details that we think should be included - and I would be more than willing to submit that to you in writing: the inclusion of various bodies which have been left out, particularly in the co-operation - but broadly we are satisfied with it. Q12 Mr Jones: I do not think any of us would want to detain you now, but if you could let us have a memorandum that would be very helpful. Ms Battle: We would welcome that. Q13 Hywel Williams: Looking at your role as the champion of rights and interests of children in Wales, do you think the proposed Order would help or hinder you in the performance of your duties? Ms Battle: That will obviously depend on the measures and also the implementation of those measures. I think it could assist in three aspects: first, if the LCO and the subsequent measures do improve the welfare and the rights of vulnerable children and children in poverty in Wales, then it would also result in us as an organisation not having to intervene as often as we intervene now. Obviously our aim would be that every single child in Wales was out of that category of vulnerability and poverty and then you could abolish the Office of the Children's Commissioner. If that happened, it would impact upon us. Second, it is getting back to the first question really: if it is clearly defined what the duties are on statutory authorities, both in the realms of vulnerability and poverty, it would make our work much easier to accomplish because we can hold them to account. At the moment, in the discretionary fields, we find it is more difficult to get access to children for the services that they obviously require but there is that discretion. Third, within our own powers contained in this LCO there are some improvements that can be made for consolidation of the legislation -which is quite confusing, at the moment. There are simple things; for example, us accessing information that we need to represent children, without starting a formal review which is unnecessary. We have submitted a full paper on that as some of the improvements. The things that will not impact upon our ability to help vulnerable children is the fact that this LCO does not and cannot cover our ability to assist children in the fields which are not devolved. We assist many children in very restricted circumstances in the field of asylum and in the field of youth justice. We feel, on principle - and it is international minimum standards - that every child in every country should be able to go to their own commissioner for everything that they need. That is not the case at the moment. We do assist as much as we can but that will not be taken care of within this LCO. Q14 Mr Jones: Cross-border issues arise under the terms of this LCO. A study commissioned by the Welsh Assembly in 2004 indicated that, of the 317 children placed in specialist residential units, one-third were placed in Wales and two-thirds in England, so there are significant cross-border issues at play here. How do you anticipate that different policies and procedures will play out in practice? Ms Battle: I think that is a very important question. In our experience in the last seven years, we have assisted children and young people in cross-border circumstances, both children from England who have been placed in Wales and children from Wales who have been placed in England, through education, health, or social services. We find, for example, that English children who are placed in Wales do not have the access to the same advocacy provision which children in Wales have, which is a really important safeguard for children who are living away from home. We, as an office, fill in that gap and we advocate for children who are in Wales at the time. Similarly, for children and adolescent with mental health problems or eating disorders, we find that for children from Wales who are placed in England there are restrictions in Welsh policy which will not fund the children for a sufficient length of time for the English institutions to accept them. We intervene there and we advocate on behalf of the children to try to get agreement in the funding. I think perhaps there is a potential with the LCO that these issues will increase. Q15 Mr Jones: I am sorry, I do not understand. These issues will increase? Ms Battle: Cross-border issues. Q16 Mr Jones: As a consequence --- Ms Battle: There is a potential, depending on the way the measures go. If, for example, the support for children in Wales is more intense, is more appropriate for care leavers than perhaps a care leaver in England, and that English child is in Wales, what happens to that child? Do they get a lesser service than the child from Wales? Similarly a child in Wales who goes over to England, what service are they going to get if they are placed in England when the Welsh legislation and guidance is different from the English? I think that both countries need to liaise very closely on this and come up with some form of agreement about who is going to be funding, who is going to be giving a service to the child, and what service they are going to get. Q17 Mr Jones: Do they liaise at present? Ms Battle: Yes and no. As an organisation which tends to become involved in situations where things are not going the way they should do, we tend to pick up on issues which are not working effectively and then we negotiate and we bridge that gap. Q18 Mr Jones: Frankly, from what you are describing it seems to me that there is potential for this LCO to make matters worse rather than better. Ms Battle: If this LCO can make matters better for the children and young people of Wales - and I firmly believe it has the potential to do that - it may then have a knock-on effect and raise the services for children and young people in England, rather than to have difficulties. Q19 Mr Jones: The initial question was: How do you anticipate that different policies will play out in practice? Is it fair to say that you do not really know at this stage? It depends how things develop. Ms Battle: It does depend on how things develop, but if you use the practice that is happening at the moment it is really about close co-operation, close communication, and there are safeguards in place - being ourselves and the English Commissioner. We liaise very closely when children cross the borders. Q20 Mr Jones: This is a question of protocol rather than law. Ms Battle: Yes. Q21 Mr Jones: Would you welcome an overarching framework? Ms Battle: There is some policy which does state clearly what needs to be in place before a child goes over the border; for example, the Welsh guidance Brighter Futures. That goes quite some way towards addressing that. So yes, I do think it would help if it were addressed more clearly. Q22 Mr Jones: In a legal framework? Ms Battle: Or in a policy framework or a guidance framework. Q23 Mr Jones: The difficulty with a guidance framework, of course, is that they are unenforceable. Ms Battle: Yes. Q24 Mr Jones: Would you welcome a law? Ms Battle: As a lawyer, I would say yes. Q25 Mr Jones: As a lawyer I welcome that. Ms Battle: Also, as someone who tries daily to get people to do what they should be doing, it is a definite yes. Q26 Mr Jones: Just to summarise, you would appreciate an overarching legal framework that would set out the position for the child - who, after all, we are concerned with here - in cross-border situations such as this. Ms Battle: Yes, with a caveat that we should not throw the baby out with the bathwater. Q27 Mr Jones: I am not sure, when you are talking about vulnerable children, that is the right expression. Ms Battle: Sorry. This has such potential to improve the lives of very vulnerable children. Q28 Mr Jones: You have touched on a large range of cross-border issues. Do you anticipate any cross-border issues arising, for example, in connection with the Youth Justice Board or the police or the court service? Ms Battle: On the face of this LCO, no. We do have our own youth justice policy, which, we are proud to say, puts children first. I cannot say how this particular LCO will impact on those non-devolved areas. As I did say in the answer to the question about our own powers, again it does not impact upon our own powers within those areas either. Q29 Mr Jones: We have already invited you to submit an additional memorandum. If you have any suggested additional clauses or amendments, could you submit those as well? Ms Battle: Absolutely. Thank you. Mr Jones: Thank you. Q30 Mark Williams: Turning now to the issue of accountability and your role. A provision in the Government of Wales Act 2006 specifies that the Commissioner reports directly to the Welsh Assembly Government rather than to the Assembly. You have argued the case that that the reporting process should be to the Assembly itself. What is the rationale behind that? Ms Battle: The rationale is independence, transparency, accountability. Currently we are attached to a department - the Education Department in the Assembly - and our budgets are set there, and it takes away then from other education budgets within that broad budget. Best international practice, similar to an ombudsman - because we are a children's ombudsman, in reality - is that it is sliced separate from any department and it is set by the whole of the Assembly. I think it is really to secure, more so, that independence and to be seen to be independent. Q31 Mark Williams: Has a budgetary issue been a problem specifically? Ms Battle: Currently we have been flat-lined for the next three years. That will obviously cause problems, because staff costs will increase which means our operational budget will decrease. Q32 Mark Williams: Not least with the passing of this LCO you envisage a greater increase in your responsibilities. Ms Battle: Absolutely, and a greater increase in our ability perhaps to make a difference. Q33 Mark Williams: What discussions have you had with the Assembly Government on this point? More fundamentally, what has been the reaction? Ms Battle: It has been raised on the House of the Assembly. There is a lot of support within the Assembly, the Members themselves, for this to happen. We have raised it collectively. There is a UN report this year, as well, and we expect to raise it there, because, as I say, it is a fundamental principle of independence. The response that we had a couple of years ago was that we were to stay within the Education Department but our budget would be seen clearly within the lines of the budget. That is as far as it has gone really. Q34 Mark Williams: In defence of the Deputy Minister, she has been given evidence which has at least opened the door to a possible future measure on the issue. Turning now to the issue of whistleblowing, in evidence you gave to the Assembly Committee you expressed surprise and concern that no reference was made to whistleblowing. The proposed Order refers to advocacy and to complaints. How concerned are you at the absence of whistleblowing? Ms Battle: Whistleblowing is one of the main areas which was identified by Sir Ronald Waterhouse in Lost in Care to be the duty or power that a Children's Commissioner should have. The three powers to safeguard those most vulnerable children, who are the children in children's homes, were whistleblowing, advocacy and complaints procedures, so we have specific powers within which to undertake reviews within those three areas, and we have done. We have undertaken reviews into whistleblowing, complaints and advocacy in education and in social services. This has resulted in some changes within Wales and continues to do so. A recent framework for advocacy has been announced. That is already enshrined in the Care Standards Act 2000. When we saw on the face of the LCO that neither advocacy nor whistleblowing were included, I wondered whether it was a drafting error or whether there was an intention to take away one of our responsibilities which we already have at the moment. We are also a prescribed regulator under the Public Interest Disclosure Act for whistleblowers. As well as undertaking reviews, we do receive reports annually from, I would say, between four and six whistleblowers. It is a very difficult thing to do: it is a very lonely place to be but it is also very important information. They come to us confidentially and alert us to issues which we should be investigating to protect children. It did not seem to sit logically that whistleblowing was not included on the face of the LCO, when it is an area in which we are currently active - and it came from Sir Ronald Waterhouse and from Parliament. Q35 Mark Williams: You have set the scene of either a drafting issue or something more substantive, and obviously you are concerned about that. What were the responses from the Assembly Government to your concerns? Ms Battle: That it was not a devolved area. We are hoping that the consolidation of our legislation will retain the whistleblowing that we already have. That is what we are hoping for. Mr Jones: That is explained in the Explanatory Memorandum. It does state whistleblowing within the memorandum attached to the LCO; that there is not the expectation that the Commissioner will take that whistleblowing function forward. It is just surprising to us that it is not on the face of the LCO as it is drafted currently. Q36 Mark Williams: It would be useful to have a further note on that, as one of the concerns that Mr Jones has suggested you might write to the Committee about. Ms Battle: Yes. Thank you. Q37 Alun Michael: There are a number of areas coming together in this questioning. There are areas where very clearly there has to be co-operation between those operating in non-devolved areas and those operating in devolved areas. The work with young offenders is an obvious area. Indeed, we have references to the police and probation areas within Wales here. Those are not devolved areas. They are not the responsibility of the Welsh Assembly but in your memorandum you welcome the inclusion of those. Which other bodies would you like to see included? You have implied there are bodies which are not included that you would like to see included. Ms Battle: We would like to see included the UK immigration agency, the BIA. Mr Jones: The Fire and Rescue Services. Q38 Alun Michael: That makes clear the sort of area you are talking about. It is where there is a non-devolved area which impinges on the care of children and young people. Ms Battle: Absolutely. Q39 Alun Michael: Given that non-devolved areas, like the Probation Service, are included, and of course the National Assembly for Wales has a responsibility to co-operate with non-devolved areas in the reduction of crime, for instance, and for the rehabilitation of young offenders, I am not entirely clear why the line is proving a problem. Ms Battle: I am sorry, I do not understand the question. Q40 Alun Michael: You seem to say that you could not operate as the Commissioner in relation to non-devolved areas but you have to. The Assembly has to co-operate with non-devolved areas: it has a legal responsibility to do so. Ms Battle: I understand. Q41 Alun Michael: There is not a line there, is there, that is that absolute? Ms Battle: I totally agree with you. We do operate in non-devolved areas. We have the power to make representations on any matter that affects any child in Wales to the National Assembly for Wales, and we do that. Obviously for those children within the non-devolved areas - in particular youth justice and those seeking asylum - all the other services they receive are devolved: social services, accommodation, education, et cetera. We do assist those children in those areas. We go into the secure estate. We go to Park Prison every six weeks. Q42 Alun Michael: To give another example: might you make representation to the way things are working to the Youth Justice Board? Ms Battle: Yes, we do. We meet with the Youth Justice Board. We have been on the NOMS pathways group. Q43 Alun Michael: They are not devolved areas. Ms Battle: They are not devolved areas. The issue is that if we go to our powers, we cannot use some of our functions within those areas. We can liaise, we can negotiate, we can mediate, we can have access where we are allowed access, but we cannot use some of our other powers. Some of the greatest changes that we have made for children in Wales has been as a result of the use of, for example, the power of public inquiry. I will give you an example. There has never, as you know, been a public inquiry into deaths of children in the Youth Justice System. We were asked by the English Commissioner perhaps to consider doing a joint public inquiry. I do not think we have the power to do that in Wales. Yes, we go in, we assist children to get accommodation when they are leaving prison, we assist children to get the CAMHS service, but we cannot use our other powers. Q44 Alun Michael: I think I am starting to understand what you are getting at here. It does not necessarily mean that there has to be a Legislative Competence Order in order for you to go into those areas, does it? It would require the UK Government to see you as having a competence in that area rather than duplicate where there is an overlap in Wales. Ms Battle: It is not within this LCO, I agree with you. It could be through the UK Government. It is arguable it could even be through the Secretary of State for Wales. But over the last six or seven years we have come across the most appalling treatment of children in those areas where we have not been able to use our full functions to assist them, and neither has the English Commissioner been able to assist them because he is precluded from assisting individual children. There is that gap there that children are falling down. I could cite many examples - and I am willing to put them into a memorandum if it would assist the Committee - where children are experiencing horrendous breaches of fundamental rights. Q45 Alun Michael: Personally, Chairman, I think it would help us enormously. We need to be clear what the problem is before we look at the solution, rather than looking at the solution first and then working backwards to the problem. Ms Battle: Yes, I would welcome that. Q46 Chairman: Have these points been made at all at any time? Ms Battle: Yes, they have. I met with the Under Secretary of State for Wales to air them. I also met with the Minister for Children in England. I have met with the Minister for Children in Wales. I did a presentation to the All-Party Committee on Children in Wales and met with some Welsh MPs. I obviously liaise very closely with the English Commissioner, who finds it equally frustrating, but he cannot assist individual children or assist those children we ask him to assist. We will continue to raise these points. Hywel Williams: This Committee in fact questioned the Minister Margaret Hodge on this very issue when the Children's Commission for England was being set up. The split in responsibilities between Wales and England was examined about five years ago - and it must be within the records of this Committee. Alun Michael: Only the older members would remember. Q47 Mr Jones: Again, I am questioning whether this LCO is the proper vehicle. I really do wonder whether what you really need is overarching English and Welsh legislation, joined-up legislation. Ms Battle: For the Commission or for vulnerable children? Q48 Mr Jones: In respect of the issues you have just been identifying, the cross-border issues. You are identifying real problems here. I am doubtful as to whether the LCO is the proper vehicle for addressing the matter. It seems to me you really need primary English and Welsh legislation to address this problem. Ms Battle: When it comes to the Commission, if we put that to one side, yes, I agree, but today we are looking at vulnerable children and poverty in the Welsh context and I absolutely think this has the potential to make a huge change for children and young people in Wales if it is used well. I think the cross-border issues, as important as they are, when we look at the numbers, are very, very few, compared to the 700,000 children in Wales and the 4,000 children in Wales in care. I think this is an opportunity for us to be able to do this in Wales more quickly within our context. I agree, when it comes to the Commission's powers, that we should look in a parliamentary way at that. Q49 Mr Jones: That is the point I was making. I am not criticising the LCO on those grounds, but it seems to me that you have identified a number of issues which do need primary parliamentary legislation for England and Wales. Ms Battle: Absolutely. I have also taken independent legal opinion that it may be within the power of the Secretary of State for Wales, although I think that is debatable, having read it. I think there is an opportunity, now that we are using those powers which Parliament has given us for the last seven years: we know where it is not working and we know which children are falling through the gap. To sit here and say it objectively is one thing, but when you are meeting these children and seeing the impact on them, you would not believe that these things are happening in the UK and there is not an organisation there which is able or empowered to properly champion their rights. Q50 Mr Jones: Because there is no legal framework. Ms Battle: Absolutely. We really do need that. We have a paper, which I am more than willing to share, and I can give concrete examples as well within that paper of Welsh children and English children who are falling through the net. Mr Jones: That would be helpful. Q51 Chairman: You are absolutely right. We are really talking about your powers at the moment, when we should be talking about the LCO. Ms Battle: Absolutely. Q52 Nia Griffith: I would like to come back now to the definition of vulnerable children. In your evidence to the Assembly Committee you expressed your concern that the definition of vulnerable children may be too narrow as expressed in the Explanatory Memorandum. Are you now content that the expanded definition contained in the revised Order meets the criticisms that you levelled? Ms Battle: Yes, we are. We are broadly satisfied with that. We agree with the Deputy Minister that all children are vulnerable by their very age, but, yes, we are happy with the revised definition. Q53 Nia Griffith: How do you see this working in practice? Do you think it will be clear to everybody what is meant? Do you see any potential for confusion? Ms Battle: I think the answer to that will unfold once we see the meat on the measures, what is contained within the measures. Chairman: May I thank you very much for your evidence today. We look forward to the other new memorandum which you have promised to produce for us. Thank you very much. Witnesses: Gwenda Thomas, Assembly Member, Deputy Minister for Social Services, Mr Mike Lubienski, Assembly lawyer, and Ms Donna Davies, Head of Vulnerable Children Policy, Welsh Assembly Government, gave evidence. Q54 Chairman: A very warm welcome to you from the Welsh Affairs Committee. For the record, could you introduce yourselves, please. Ms Thomas: I am Gwenda Thomas AM, Deputy Minister for Social Services. Mr Lubienski: I am Mike Lubienski, Assembly lawyer from Welsh Assembly Government legal services. Ms Davies: I am Donna Davies. I head the policy on vulnerable children in the Welsh Assembly Government. Q55 Chairman: Could I begin by asking you a question about process. There has been a great deal of speculation about process here and in the Assembly. Do you think that publishing the proposed Order and referring it to an Assembly Committee for pre-legislative scrutiny prior to its clearance by Whitehall has helped or hindered the LCO process in this case? Ms Thomas: It is my personal view that if there is agreement before the scrutiny process commences, then that facilitates the process. Q56 Chairman: Do you foresee that this situation will arise again? Ms Thomas: Hopefully, in the main we all have the same aim; that is to promote social welfare. A good example of an LCO being given a fair wind is the domiciliary care LCO, where there was agreement before the process started and that LCO is now ready to be presented to the National Assembly next week. Q57 Hywel Williams: Good afternoon. Is the scope of the revised Order broad enough to implement all the policies that the Assembly Government may seek to pursue under One Wales? Ms Thomas: I think it is. I think that was one of the main aims, to have as wide a scope as possible, so that any measures that any future Welsh Assembly Government would wish to present would be covered by the LCO. The scope is wide. It will cover children and young people from birth up to the age of 25. The scope of the LCO, I believe, is wide enough to allow measures of a wide range to be introduced. Q58 Hywel Williams: Could you give us something more appropriate in terms of the ways that the legislation would make a difference to the rights of vulnerable children in terms of what the Assembly Government can do? Ms Thomas: One of the main aims would be to reform and consolidate the law in relation to the welfare of all children and young people. That would be a major step forward and work on that could start from day one. The Child Trust Funds - not the concept of the fund itself - that is not devolved - but certainly contributions or subscriptions into that fund - could be legislated for, and, also, we could be introducing measures such as free childcare places. Q59 Mr Jones: I find your last proposal quite remarkable. Putting money into Child Trust Funds? Ms Thomas: Indeed. Yesterday we had an announcement in the Welsh Assembly where the Welsh Assembly Government is going to increase its contributions from £50 a year to £100 a year for children who are being looked after. The UK Government, I am delighted to say, has also decided to contribute another £100 on a UK basis. Therefore, children being looked after in Wales, so long as they have been in care for a year from 1 April last year - so they are at the point where there has been a year now - for each year that the children are being looked after, £200 will be paid into the Child Trust Fund account so long as they qualify for that fund in the first place. Q60 Hywel Williams: Looking at the limitations of the current settlement, can you give the Committee specific examples where those limitations have prevented the Assembly Government from achieving its objectives? Ms Thomas: Some of the limitations are quite obvious but it might help if I explain the way the policies and structures for children's services in Wales differ. The current settlement may not always concur or provide for a Wales approach. For example, we do not have children's trusts in Wales; we work on a partnership basis instead. That requires the co-operation of all partners. The LCO therefore would allow us to place greater responsibility on the partners - public bodies that are devolved, of course - in discharging their functions to support children and their families. Q61 Hywel Williams: Can the Committee take this as an indication of what the Assembly Government are planning to do if the proposed Order were approved? This is one example, the responsibility on public bodies. Ms Thomas: Yes, indeed. Q62 Mark Williams: Minister, good afternoon. Turning again to the existing powers you already have, how do you respond to those challenges that more could have been done through existing powers and increased resources? I refer, for instance, to the general theme in Gofal Cymru's evidence that better implementation of resources would be a more appropriate way forward rather than new legislation. How do you respond to that? Ms Thomas: One would never say that more resources would not help any situation, I am sure, but I would like to say that we aim to bring Welsh solutions to Welsh situations. The devolution settlement does offer this. The second Government of Wales Act does provide for this to happen. I do think it is not always a question of resources, but it is being able to introduce legislation that makes sense to the situation we are dealing with in Wales. Q63 Mark Williams: In terms of the whole process of pre-legislative scrutiny, you have talked a lot about the legislative constraints under the present legislation. Do you think it would help pre-legislative scrutiny if we were to have in the Welsh Assembly Government's Explanatory Memorandum details of those legislative constraints which would justify the Order? Ms Thomas: There is a memorandum of agreement. That is included in the papers, I believe. Ms Davies: Within the terms of legislation currently between England and Wales there are variations in terms of the way we set out the legislation and some of the areas in the organisational structures the Minister mentioned in terms of the partnerships. For example, in Wales, we would want - and it would enable us to do it where we have had limitations in the past - to be able to give support to families in greater areas on child poverty and vulnerable children strategy side of things. We want to be able to extend some of our support; in particular, in the area of children with disabilities, up to 25 years of age and, more generally, to extend our children and young people policies to children up to 25 years of age, which does not exist in current legislation Q64 Mark Williams: That is very positive. Some of us would like to see the Assembly have that role and obviously support those goals very strongly. It would be useful, as part of the scrutiny process, not just having those positive goals you have in mind but also an outline of the constraints that lead you to that direction. That would be very helpful, over and above what is already there. Ms Thomas: I am sure we can supply the Committee with that information. I do not know if Mike can help out on the issue of constraint. Mr Lubienski: With regards to the plan to have a consolidation and a rationalisation of childcare law, there are some aspects where we feel the current legislation is sufficiently flexible. An example of that is the fact that children who need to have respite care are treated in the same way as children who are fostered or looked after by local authorities over the long term. Another example is the fact that children who are placed with family or friends are treated in the same way as those who are in foster placements. There is no differentiation between the kind of vetting approach that there is for foster carers and families and friends with whom a child might be placed, and that leads to inflexibility. There are aspects of the law where later amendments have superseded the need for the complexity of the original provision. I cite as an example of that the provision which is in the Children Act around children's homes which has been superseded by the Care Standards Act to a large degree. In another way, legislation has become fragmented over time. I cite as an example of that the fact that the Assembly's Cymorth programme, by which social disadvantage for children and young persons is dealt with as one of the Assembly's major policies, is provided for by a power under the Education Act 2002. A rationalisation of the law to bring together these kinds of powers in a more comprehensible way is something which not only would be more understandable for the public bodies which are operating the system but, also, professionals and, indeed, service users and end users would benefit from the entitlements given. Ms Davies: I mentioned earlier the partnerships. One key area, for example, is that the way legislation is currently constructed, the responsibility and functions for lots of the areas is on the local authority. Under the new partnership agenda that we have, we would want to be using these powers to specify the functions that currently are on local authorities on to the local health boards and the trusts within Wales, for example, and different public devolved bodies within Wales. It would allow us to bring the partnership agenda together and, in relation to some of the issues you mentioned earlier in terms of resourcing, it would allow a greater pooling of resources as well. Ms Thomas: Perhaps an interesting example would be the rights given to young carers. The UK Government is currently reviewing its strategy for carers and we are waiting to see what that comes up with. To have a means of legislating for anything that we identify in that review would be extremely useful. Q65 Chairman: Given that review is about to report in June, is there a question of timing here that would benefit you? I am not suggesting the use of the word "tardy" at all, but there are a couple of weeks more to wait for that review. Ms Thomas: I think we need to be well prepared for the results of that review. I myself have met extensively with groups of young carers and carers generally. I met with the all-Wales representative group of young carers who presented me with a ten-point plan - and I am sure many adult carers would not quarrel with the ten points in that plan I am committed to responding to that in the first week of June, which, coincidentally, is also Carers Week. We need to be able to respond very quickly to what young carers and other carers are telling us. Q66 Mr Jones: Why did you decide to adopt the LCO route rather than to seek framework powers under the Westminster legislation? Mr Lubienski: There are times when it is convenient to use a framework power a Westminster bill but it depends very much on what the particular opportunities are in terms of the bills going forward at that particular time, what the legislative programme is of the Assembly Government, and within what timescale the Assembly Government seeks to achieve its means. Q67 Mr Jones: There were no opportunities in the Westminster legislative programme for you to slot this particular proposal in? Mr Lubienski: There is a Children and Young Person's Bill going through at present, but that has a much narrower focus and would not have really accommodated the type of Legislative Competence Order that is sought here. Q68 Alun Michael: You have made some reference to the fragmentation and inconsistency in the law in what you have said already. How will you make sure that your own policy and legislation, in other words the way you use the potential for measures as a result of the Legislative Competence Order, in respect of vulnerable children is consistent and coherent? Ms Thomas: Well, children and young people policy is a cross-portfolio responsibility and you will know that the Welsh Assembly Government does have a Children's Minister whose role is to co-ordinate and have responsibility for children's matters right cross the portfolios. We also, of course, have a dedicated Sub-Committee of Cabinet for children and young people on which the First Minister sits. This group meets monthly and discusses issues, the aim of which are to ensure that policies and their delivery are joined up across portfolios. Children's legislation is complex, of course, and cast across a number of statutes, updating and reforming the law, therefore, into a single framework and rationalising all of the different aspects of the law, I think, is very important indeed. Q69 Alun Michael: Indeed. It is a question of how that is achieved because you have been critical of the current situation, understandably so, for its fragmentation and in scrutinising the proposal that we have before us in this Legislative Competence Order we are saying what difference will it make? How will you use the powers in the Order to make sure there is consistency and a lack of fragmentation in the future? Ms Thomas: I think that rationalising the laws should ensure that there is at least less fragmentation and I would certainly see that as a way forward. You will know that I chaired a group looking at services for vulnerable young children and one of the issues that arose there quite clearly was that it is quite difficult to identify and understand how implementation of various laws has panned out. We need to be able to do that. We need to know what we have implemented and what we have not, and that is only the first step I would think. Q70 Alun Michael: Indeed, we both have some experience in working with young people within the system and know how difficult it is to get that consistency. Let me put it the other way around as well then: we have areas which are not devolved where there is an interface with the Assembly's responsibilities and local government responsibilities, so you have the Youth Offending Teams, the Youth Justice Board is not devolved, nor is criminal justice generally, but clearly there is an interface with the Assembly's responsibilities and those of local authorities within Wales for which they account to the Assembly. How would you see this Legislative Competence Order helping in the joint working in those areas? Ms Thomas: I think that will remain a matter for all of us in ensuring that we work together. There is a competence that the National Assembly has got already as I understand it, and I am sure the lawyers here will say if I am wrong, that although we do not have competence on criminal justice we are already able to create criminal offences insofar as they offend against laws that we have devolved to us. I can see that there is scope there to look at introducing new laws and thereby perhaps defining the issue of children's services and the rights of children and young people more clearly. Q71 Alun Michael: There is also a responsibility on the Assembly, of course, to co-operate with non-devolved bodies for the reduction of crime and things like that. Ms Thomas: Indeed. The United Nations Charter on the Rights of the Child is a very good example of that where the Charter does not place non-devolved issues and the Charter was adopted many years ago by the UK Parliament and underpins the seven core aims of children's policy in Wales. It is a very good example and the Charter itself should be able to allow us to work together to try and seek agreement s far as is possible on non-devolved issues. Ms Davies: In terms of you mentioned about the interface with non-devolved bodies, like Youth Justice, the LCO does allow for co-operation with these clearly as the existing law does and that still would be the case under our protocols. What we clearly could not do under this Legislative Competence Order is impose new functions, but there are duties of co-operation and clearly there would have to be that ongoing interface. Q72 Alun Michael: It is a two-way process. Ms Davies: It is a two-way process. In terms of safeguarding and wellbeing, that could not be achieved without the co-operation of devolved and non-devolved bodies. In terms of what I mentioned earlier about how we would take things forward in a different way to the benefit of Wales, in a practical sense no-one would deny, even our colleagues in England, that bringing together and consolidating and rationalising the law, in particular for practitioners on the ground, would be every, very helpful because it is very convoluted and can lead to children not always having the services they are entitled to because of misunderstanding. More importantly, within Wales it is to allow us to take forward the partnership agenda so that we would be able to get better co-operation against the partnerships about functions that we would place on them in respect of children. Q73 Alun Michael: That is very helpful. Can you say whether there are powers that would be given to the Assembly in this Order, or as a result of this Order, which you cannot foresee being used at least in the short-term? Ms Thomas: Within the legislative competence we will be defining measures and those individual measures will be considered when they are presented and on their own merits, but I cannot see that I would identify any issue. Ms Davies: Clearly, as we said, if our principal aim first of all is to have consolidation and a new piece of legislation for children it means it has to be broad because it has to restate the law as we see it today, what the short-term vision is, but also provide enough flexibility for developing policy to the long-term vision and what we can achieve. Q74 Chairman: Just to sum up this area, is it the case, Minister, that the intention will be to actually achieve an overall strategy for vulnerable children? Ms Thomas: Indeed. Very shortly, I will be introducing a wide consultation process in Wales with a view to establishing a strategy for vulnerable children. Ms Davies: The intention is later this summer to go on a strategy for vulnerable children, but clearly this is not just vulnerable children in one context, this would cover legislation for all children. Clearly there are linked strategies going out about poverty, how we want to take poverty forward in Wales, and this will cover a lot of areas on that. The ultimate is the new Act and how we recast it for Wales to allow us, as I said earlier, to have functions on public bodies other than local authorities. Q75 Alun Michael: I just want to be clear about this because clearly this is an area where it is very important for the two aspects to be complementary. On the one hand, there are the needs of vulnerable children, which essentially the Assembly is in the lead on and is seeking to have a situation where you can bring things together and be coherent, and the other side of that equation is dealing, for instance, with young offenders who may actually increase their vulnerability as a result of their offending as well as increasing the vulnerability of the community on which the Assembly has a responsibility under the 1998 Act to assist and co-operate in the reduction of offending. There is a two-way process there, is there not, where the two things have to dovetail: the Assembly in its policies as well as its development has to assist with the crime reduction approaches and, on the other hand, you are looking to non-devolved bodies to assist the Assembly in work with vulnerable children. Have I expressed that correctly? Ms Thomas: Yes, I think so. To me, this is a very important aspect. It is crucial that we do work together on this issue because clearly the responsibility on youth justice rests with the UK Parliament, but once the children are returned to their communities then the Assembly's responsibility kicks in. We need continuity and we need to try and ensure there is an overlap and they are not under one responsibility one day and another the next day. We need to talk about the bridge between one and the other. Q76 Mr Jones: Ms Davies, you referred a moment ago to this issue of co-operation and, in fact, I think the matter we are talking about is Matter 15.5. I do not know whether you want to look at it. You probably remember it. Ms Davies: Bodies, yes. Q77 Mr Jones: The expression is not simply "co-operation" but "co-operation and arrangements". What does that expression, "arrangements" mean? Ms Davies: This is a restated position that currently exists in the Children Act 2004. It is the arrangements, for example, on which there are some things we would not want to depart from in England and Wales in terms of between the Assembly Government and the partners in terms of local safeguarding boards and safeguarding children. The arrangements are the actual practical procedures and the interface between how those bodies are set up and set up different panels. For example, on local safeguarding boards within different areas in England and Wales we would have to make sure that the police and youth services are involved. It is actually the statutory arrangements that you agree with both parties on how you take forward the functions of those boards. Q78 Mr Jones: There is no suggestion that might cause conflict with non-devolved areas? Ms Davies: No, no more than would be the position now because that has been happening for several years. Q79 Nia Griffith: If I could turn to the question of definitions now, if I may. We have touched on some of these issues. What reassurance can you give the Committee that the terms used in the proposed Order will not cause confusion or difficulty because of different usage of the same terms in legislation which is pertaining to England and Wales? One of the examples we have is the use of "wellbeing" where you include the idea of children's rights in that whereas it is not in the England and Wales legislation. Mr Lubienski: If I can help as far as I can on that one. Very great care has been taken in the words that have been chosen so that where there are particular phrases which have reference points in UK legislation, those are clear and apparent. Even though in the example you cite of "wellbeing", you are correct to say that the last line of "securing [the] rights" is added on, nevertheless the fact that it replicates exactly the other elements means that it is flagged up very clearly as something which equates to the same concept of "wellbeing" in the Children Act 2004 in England and Wales and equally, in fact, in the Childcare Act 2006. A great deal of thought has been given to try and marry up language and phrases of that sort to ensure that the concepts are clear. Ms Davies: I would just like to build on that. It was a decision of the National Assembly Committee with ourselves to add rights to that because, as we know, within Wales we have a rights-based agenda in all our policies and programmes and we thought that was very, very important to bring greater strength to everything that we do because all of our structures - I feel as though I am talking about he partnerships all the time - are formulated with having the child with a voice involved in everything. We are putting that on the statute to make very clear what our intentions are. Q80 Nia Griffith: If I could turn to the issue of vulnerable children. Matter 15.1 of the revised Order now refers to "safeguarding and promoting the wellbeing of vulnerable children". There is also a broad definition of "vulnerable children" in the interpretation section. Are you content with these changes and, if so, what were the reasons for excluding any reference to "vulnerable children" in the original Order? Would you like to explain why this has been put in like this? Mr Lubienski: When we came to recast 15.1 to make it apply to the functions of public authorities as opposed to having an open remit, there were a number of adjustments that had to be made. We wanted to ensure that we included the idea of safeguarding and promoting the wellbeing of children but, given the breadth of the definition of "wellbeing", if we had been safeguarding and promoting wellbeing across all the different aspects of it, including education and health, we would have been overlapping wildly into the education and health fields which we did not intend to do. Therefore, we have focused in, in relation to that aspect, on the particular vulnerable children that we are seeking to address in that way. Having said that, by the same token there were certain elements of our intended scope that were excluded and, therefore, we wanted to include as well "safeguarding children from harm and neglect" which applies to all children because, in a sense, all children are vulnerable to harm and neglect in some measure. The third strand of reducing inequalities was in the original draft of the LCO but was one of the last matters at 15.6 or 15.8, and was phrased as "promoting equality" and, again, we altered the wording slightly of that, but that theme was there before. That is how we arrived at the three strands in 15.1 in the current draft. Q81 Nia Griffith: Then there is the issue of child poverty and the Assembly Committee's recommendation is that there should be a specific reference to "child poverty" on the face of the Order. Would you agree with that? If not, why not? Mr Lubienski: The difficulty was that there was some thought about whether the words "child poverty" should be used. "Child poverty" is a term which is used in different contexts but very commonly to do with relative poverty, so there was a danger of giving it a connotation which was limited and not broad enough. In many regards, given the fact that the word itself might have a connotation of being only about material poverty, and again that might not suit the breadth of the Assembly's agenda, it was better to have a phrase, such as "reducing inequalities" which, again, chimes with UK law as well and covers the full scope of any agenda on poverty that the Assembly will develop. Q82 Nia Griffith: Yet you have got the term "vulnerable children". Can you perhaps explain a little bit more to us why you have gone for the one term but you are not using the other one, as it were? Mr Lubienski: In a sense it is about what happens to work. I do not think I can give you a neat answer as to why one was used and one was not. It is about a process of trying and testing and working out what the scope of particular words means with the references they have to other legislation. I am not sure I can give a neat easy answer to that. Q83 Nia Griffith: They both raise this question of what is exactly meant by them, do they not, and people will probably find them quite difficult to understand. Ms Thomas: I know Donna wants to come in as well, but from a lay person's point of view, perhaps, what I am content about is that the LCO as it is laid will allow us to look at child poverty issues and that is the important thing. Rather than perhaps make it too narrow a definition, I feel much happier and more comfortable with the LCO as it is and that will allow us to look at the issues that you raise. Ms Davies: Probably the easiest way is to make two distinctions. If you look at poverty on its own, "poverty" in the LCO was just a title for the LCO. We wanted to be broad and trying to define it in the LCO would have restricted us. Through measures we can define there are different aspects now, today and in the future of what we may want to do to assist in the poverty agenda we mentioned earlier today. To define that now would restrict what could do. In terms of "vulnerable children", as Mike just said about some of the definitions, it is quite important because the change in that had to be linked into how we constructed 15.1 where under the three ways it is set out it suggests this applies to all children, it applies to children who are vulnerable, so we had to define what "vulnerable" is because the services to them and different parts of the matters in terms of some of the social care services would apply to them, but then we have got another leg that deals with reducing inequalities which would cover children who, if they did not have extra services, would be disadvantaged, for example, through poverty or disability or some reason like that. It was quite important that we defined that within this. Q84 Mr Jones: Reverting to the definition of "vulnerable children", there seems to be a bit of an inconsistency between paragraph (b) and paragraph (c) there. (b) defines vulnerable children inter alia as those whose health or development is likely to be "significantly impaired" without provision for them of social care, whereas in (c), where we are still talking about a health condition, a physical or mental impairment, the word "significant" or "significantly" does not appear. Can you explain that? Mr Lubienski: Again, this is a definition where the reference point has been as the definition of "children in need" in section 17 of the Children Act. Section 17 of the Children Act refers to children with a disability and defines them in relation to their physical or mental impairment. That is the reference point that has been taken as the basis of the scope for the children who will be covered by this Order. Q85 Mr Jones: Is there not an inconsistency though? In one case you have got "significant impairment" and in the other you have not. It does seem inconsistent. Ms Davies: My recollection of the Welsh Council on this is that one is to cover, as Mike just said, the strict definition of children who are disabled and in need and the other one was for those potentially sick children who are not disabled, if they are children with cancer or whatever, where if they were not having a service they potentially would be significantly impaired without the service. There is quite a distinction between the two. We are quite happy to write to you to give you a fuller explanation on that. Mr Jones: That would be helpful. Q86 Hywel Williams: Can I turn now to some cross-border issues. You say in your memorandum that there is: "an increasing difference in approach between England and Wales in the policy planning and delivery of services for children and young people". What are the most significant differences? Ms Thomas: I think cross-border issues have always been with us and that will not change at all with this LCO. The movement of children between local authorities and between Wales and England is there and traditionally we have dealt with those as they arise. This LCO will not change at all the fundamental responsibility of an authority that places the child in the first place, that responsibility will clearly stay with the placing authority wherever the child is placed. We are seeing more movement of children from England to Wales than we are the other way, but I do not think that is either here nor there in regard to this LCO. We all have the same aims to seek to ensure the welfare of those children, and I will ask for the opinion of lawyers here but I do not see that cross-border issues will be any different when this LCO is a reality than they are now. Q87 Hywel Williams: So there would not be any significance affecting the way that policies and procedures are managed in practice from day-to-day? Ms Thomas: I do not think so. These have been done by way of contractual agreements or voluntary agreements between authorities, but with the introduction of that legal responsibility of the placing authority I think that in itself safeguards the child that is being looked after. Q88 Alun Michael: Can I just ask a supplementary on that before I ask my question. There are some issues around and one example that we have had recently has been the issue of specialist physiotherapy services for children with muscular dystrophy, which is not a criticism of the Assembly because similar problems exist between the availability of services in different regions of England as well. It is a problem of making sure that a child gets the appropriate specialist service that they need. Will the powers that you are given under this Legislative Competence Order help you in making sure that children get the appropriate specialist service, whether it happens to be within Wales or outside Wales? Ms Davies: The Order and other measures that we are securing through the Bill means we will be looking to secure more provision locally that is specialist provision. We can never deny that there will be a need for children to be placed across borders for the reasons you have just said. Clearly, in doing that, in current law and will be restated in the consolidation, there are quite clear duties, for example, a child from Wales placed in England having secondary care or tertiary care, which you have just explained, depending how it is commissioned, it would be the responsible local health board in Wales that would remain responsible for covering the cost, as is the case within the PCTs in England. Q89 Alun Michael: The end result of this is both to place the power and responsibility on both the Assembly and the bodies that are responsible for this? Ms Davies: Absolutely. More recently, as we said in relation to cross-border issues, we have just changed the law within that area with the Department of Health to try and strengthen those arrangements to make sure that lines of accountability in terms of resourcing for these children are very clear. Q90 Alun Michael: Thank you. Thank you for the indulgence of the Chairman. Can I come on to the issue I want to ask about which is the scope of the proposed Order in respect of reasonable punishment. Unless I am mistaken, I thought that this issue had been dealt with at a fairly early stage with the Presiding Officer making it clear what the legal advice was, which is that is not a devolved issue and would not be an issue that was dealt with through this LCO. In your letter to the Chair of the Assembly Committee on 22 January you said: "In our view, a power for the Assembly to legislate so as to protect children from harm caused by parents or people with parental responsibility physically punishing them could relate to an appropriately worded matter in the social welfare field...". Is this still the Assembly Government's view and what exactly does it mean? Ms Thomas: As you know, in the Assembly there has been majority cross-party support for the measure to ban corporal punishment in all settings, including, of course, in the home, as well as for the promotion of positive parenting. The present Assembly Government remains committed to this agenda and it is our view that the defence of reasonable punishment enshrined in section 58 ought to be removed so that children and young people enjoy the same level of protection in law as adults do. We see this primarily as a children's rights issue. To relate that to this LCO, you know that the part of the LCO that referred to reasonable punishment was dropped and my view, and that of the Assembly, was that the remainder of the LCO was well worth salvaging. That is important. The issue of reasonable punishment is a matter for another day, and that is not before us today, but the LCO as it stands is still worth pursuing. Q91 Alun Michael: I raise it partly because there was a reference to it in the Assembly Scrutiny Committee's secondary report. Might it not be sensible to make sure that the Explanatory Memorandum makes clear the situation that you have just stated, which is admirably clear? Ms Thomas: I think we can do that or provide it. Q92 Mr Jones: Is there any intention to change the line of accountability for the Children's Commissioner to the Assembly rather than to the Welsh Assembly Government? Ms Thomas: No, I would not say not at present. To the very best of my knowledge, this is not an issue at the moment. The LCO in itself in the future could look at this, I suppose, as it could look at anything else by way of a measure, but I am not aware at the moment that that is an issue. Ms Davies: In terms of the LCO, as you said, this gives quite broad powers and devolved powers to the Commissioner for Wales and clearly we do know, and I am sure the Deputy Commissioner must have mentioned this, they have been having a review about looking at extending their role and remit and the Assembly will have to consider that in the future. At the moment it is broad enough to cover all the functions that currently exist or any new functions that the Welsh Assembly Government wishes to place on the Commissioner. That is clearly something for a measure in the future. Q93 Mr Jones: Yes, I understand, but the Committee would like to know if there is any intention to do so. I understand from Ms Thomas' reply that at present there is no such intention. Ms Thomas: That is to the very best of my knowledge. Q94 Mr Jones: The Children's Commissioner called for an express reference in the Order to whistleblowing and there is reference to "advocacy services" but not to whistleblowing per se. Can you explain why that was excluded from the draft? Mr Lubienski: Whistleblowing is covered by the LCO. There are a number of aspects of the matters by which it might be covered. It is an aspect of safeguarding children from harm and neglect in 15.1. In relation to social care services it might be a requirement that will be placed on the providers of social care services to have relevant procedures and so on to deal with it. The reason that the word itself has not been used in the Order is that it does not have a statutory definition. Q95 Mr Jones: I appreciate that, but it should be possible to put it into some form of legalistic language so it could be used in the LCO. Mr Lubienski: On the occasions that there are references to the activity of whistleblowing, such as in statutes like the Public Interest Disclosure Act, there is a fairly lengthy set of wording to describe the breadth and scope of what the activity is and, therefore, in a kind of Order of this sort where we are trying to set out in relatively few words the legislative scope, it was felt that it was not necessary because that type of activity was clearly covered by the wording at present. Q96 Mr Jones: Was there any consultation with the Children's Commissioner on this particular issue? Ms Thomas: The Children's Commissioner has been involved in the process of scrutiny in the National Assembly. I do not see that the LCO as it is presented would exclude any measures in the future that would be to do with whistleblowing. I cannot see why it is necessary to itemise issues that might arise when the LCO would obviously embrace all of the issues that are to do with child welfare, and whistleblowing obviously, as we know from the Waterhouse report, the Adrienne Jones report, all of these reports mention whistleblowing. I cannot see that the issue of whistleblowing is in any way excluded as is any other issue because the LCO is wide in its scope. Q97 Mr Jones: The Children's Commissioner is sending us a memorandum which I think will touch, among other things, on this particular issue and we may well need to revert on that. Ms Thomas: We would be grateful if you would share that with us. Q98 Chairman: Thank you very much for your very helpful evidence. The Committee looks forward to receiving a further memorandum. Could I also place on record my intention to speak with the Chair of the Committee that has been dealing with this in the Assembly, Karen Sinclair, to discuss with her what we have been discussing today, not only the important issues you have raised but also the points that they have raised in their Committee Report. Ms Thomas: Yes. Q99 Chairman: I think it needs to be said and placed on record that we are very committed to working with you and the Committee to ensure that the very best LCO is achieved and that vulnerable children will benefit as a consequence of our work here and your work in the Assembly. Ms Thomas: I very much welcome those remarks. Chairman: Thank you very much. Memorandum submitted by Wales Office Examination of Witnesses Witnesses: Huw Irranca-Davies MP, Parliamentary Under-Secretary of State, Mr Geth Williams, Head of Legislative Policy, Wales Office; and Mr Bruce Clark, Cafcass, gave evidence. Q100 Chairman: Welcome to the Welsh Affairs Committee once again. Could I ask you to introduce yourself and your colleagues, please. Huw Irranca-Davies: Thank you, Chairman. It is a pleasure to be here with you again on this scrutiny role. As well as myself, the Junior Minister in the Wales Office, we have to my right here, Bruce Clark, formerly of DCFS, only three weeks ago, in fact, now seconded to Cafcass and he was the lead official from DCFS on this order, so he is an expert in many ways. To my left is another expert, Geth Williams, Head of Legislation and Policy. Hopefully Chairman, between the three of us we should be able to answer most questions. Q101 Chairman: Thank you for that. Could I begin by saying that we welcomed the response of the Secretary of State when he appeared before us some months ago now when we were discussing the LCO process that he was prepared to institute a review so that we can all learn from the very early experiences that we have had in this process. As someone once said to my late father when he was elected to a trade union position as a young man, "Congratulations, all your experience is in front of you". I think we can all learn from that advice. To begin with, this proposed Order is different from the version originally laid before the Assembly and scrutinised by the Assembly Committee. Do you share our hopes that this practice will be avoided in future and, if so, how? Huw Irranca-Davies: I do indeed. As we have learnt through this process, one of the things we are coming to be aware of is that it would be better if through all the various partners, Welsh Affairs Select Committee being one of the main ones, but also Welsh Assembly Government, Whitehall Departments, Wales Office, that we bring forward these Orders in a way that is planned and programmed in order that there can be effective scrutiny, but more effective joint scrutiny. That need not necessarily mean sitting in the same room together, but certainly more simultaneous scrutiny so that we end up with the same points at certain milestone paths of the Order in Council. Certainly, as you mentioned, the Secretary of State has made clear and, in fact, has instigated already at least one meeting with MPs to look at how we can better improve the process of scrutiny on Orders in Council. He is also very interested, I have to say, in hearing from the experiences and the insights of the Welsh Affairs Select Committee, and we would welcome your general and detailed input as to how we take the process forward. Your point is well made. In terms of this particular LCO, I should say that whilst I would also prefer to have those milestones and that programme in place now, the improvements that have been made on this Order as it faces you today are undoubtedly improvements. It is a good LCO that sits in front of you, but that is for us to scrutinise today. Q102 Chairman: We welcome that commitment and the commitment of the Secretary of State. Could you very briefly outline the differences between the original and the revised Order and explain why these changes were made. Huw Irranca-Davies: Indeed. I am happy to do so, Chairman. One of the main changes and improvements has been a stronger focus on the functions of public authorities. To bring clarity to this there has been a lot of goodwill between Welsh Assembly Government officials, the Wales Office and DCFS officials on what is the intent of this, what is it trying to do, what does it say on the tin, what does it really mean by this. One of the things that became increasingly clear was to put this in the realm of public authorities and their duties towards social welfare, issues of child poverty and so on, were very much where it should be framed. There is a much clearer definition within the Order at Matter 15.1 relating to the functions of local authorities and other relevant public agencies. There are also two further matters relating to facilities for social and physical training and educational activities, 5.18, and recreational facilities and activities because of the bearing that they have also within sport, recreation and leisure on the wellbeing and social welfare of children and young people. Also, the inclusion of special guardianship support services and adoption services - I put the emphasis on "services" rather than simply "adoption" - in Matter 15.2, which again extends slightly the scope, but extends it appropriately to cover those areas that should fall within this remit of the social welfare of children and young people. Other aspects, very briefly, are the emphasis on "reducing inequalities" rather than "promoting equalities" in wellbeing between children and young people. This is because the terminology "reducing inequalities" is consistent with the terminology with other UK statutory provisions and policy initiatives. Also, changes to the very definitions of "vulnerable children", which I am happy to go further on, and "persons formerly looked after", modifying those definitions. Those are the main changes and they are, as I say, to put it in a colloquialism, to make sure that the scope of this Order is right, one of the roles of the Wales Office in liaison with Welsh Assembly Government, neither too broad nor too narrow, and it does what it says on the tin. Q103 Hywel Williams: Good afternoon, Minister. Looking at the fundamental need for this LCO we heard evidence earlier on this afternoon that some people are of the opinion that perhaps it is a resource question rather than a competence question. Could you just say what the principal purpose of the proposed Order is? What does it enable the Assembly to do that it cannot currently do? Huw Irranca-Davies: Yes, indeed. I am very happy to answer that. Certainly we are looking at devolved areas and questions are asked about what is the value-added that this brings forward, and I know in her evidence to you the Welsh Assembly Government Minister has talked about the pulling together of what is currently quite a fragmented series of legislation that has built up over years relating to children and young people. That is one aspect. On its own, you could well ask me what difference will that make, but I think the ability to give that clarity and to bring up to speed all the legislation applying to children and young people in the devolved areas in Wales will be a significant advantage, not only to those who might be looking to the Children's Commissioner as to what their rights are but also in terms of delivery. As we know, as legislators, sometimes actually streamlining and clarifying exactly the way the legislation works can be of immense advantage to agents out in the field delivering these services. I can go further as well to clarify. Certainly, in immediate terms the issue of Child Trust Fund accounts is a very intelligent way forward to deliver additionality that does not rely on the Treasury to do it but relies on the Welsh Assembly Government working with local authorities to actually put subscriptions into the Child Trust Fund is a very inventive way that can immediately happen, or in the immediate future, in the very short-term. Free childcare places for two year-olds in the greatest need is an immediately identified issue that comes out of this LCO. Requiring local authorities to provide services to support parents as well in terms of the wellbeing of children is immediate. In the longer term, what comes out of this LCO is ensuring the welfare of children and young people in Wales right up to 25 years-old with Wales manufactured solutions to recognise that there are differences in policy and strategy on the floor, placing duties on public authorities within Wales to demonstrate their contribution to ending child poverty and tackling poverty and social exclusion, and we know in Wales, as you indeed will know, that there are additional ways in which the Welsh Assembly Government is committed and has shown on the ground it is committed to tackling child poverty. Q104 Hywel Williams: Can we move on to the question of an LCO rather than framework powers. There has been a debate as to which way would be most appropriate, particularly in respect of the whole smacking children issue, of course. You are certain the LCO is the way we should be going rather than using the framework powers in a Westminster Bill, for example there is the Children's and Young Persons Bill which is now going through? Would that not have sufficed? Huw Irranca-Davies: Not quite. It is always a moot point as to can you find an appropriate England and Wales Bill currently going through that would fit exactly this. I think the level of detail that has gone behind this and the stage we are at now with what I think is quite a very well-defined and well-worked LCO in front of us has been of great benefit. If there had been an entirely appropriate Bill that would have given us that ability to really work at the Welsh aspects of this then we would have considered that, but I do not think it quite fitted with the legislative programme from last year. This has given us the opportunity, and hopefully will give the Welsh Affairs Committee and the National Assembly for Wales respective Committee, to really get under the skin of this, which is, as I think I explained in my introductory remarks, a very Welsh approach to tackling the issues of vulnerable children. Mr Clark: It strikes me, looking at recent years given that there is not a UK Government Bill relating to children and social welfare in every session, that colleagues in Wales are always left waiting and looking for an opportunity and wanting to test out the potential scope of planning legislation within the Westminster legislative programme in order to achieve changes that it wants to achieve. It does not seem to me to be inherently desirable from the Welsh Assembly Government's or the UK Government's points of view to have to always be looking for, "Is there a match this session or do we have to wait yet another year?" In future, neither will be beholden to the other and both can achieve things within the timescales that are appropriate for them. Huw Irranca-Davies: But that would not preclude, if there were an appropriate Bill coming along, looking at that to see whether that could be made to fit, but on this occasion, no. Q105 Alun Michael: You mentioned a few moments ago, Minister, that the consistent use of language is quite important. I think there have been some concerns that the use of terms in different ways in the proposed Order and use of terminology in legislation pertaining to England could raise a degree of difficulty, and of course we have been looking at cross-border issues in recent months as a Committee. Are you absolutely clear that there is no danger of confusion in terms of differences of language? Huw Irranca-Davies: Yes, I believe we are. I believe we are because of the amount of work that has gone into this point. If I can explain on some of the main definitions it might be of help. In terms of "vulnerable children", where does that reworked definition come from? It draws together existing definitions from various pieces of legislation. For example, paragraphs (a) and (b) closely follow the wording of section 17 of the Children Act 1989 and captures those children currently within the scope of the definition of "children in need". Paragraph (c) covers those children who in section 17 of the Children Act are referred to as "disabled", but uses the more up-to-date description taken from the Disability Discrimination Act, the phrase "physical or mental impairment". Q106 Alun Michael: This demonstrates exemplary command of the legal language. Huw Irranca-Davies: Yes. Q107 Alun Michael: But you have looked at it with this point of view in mind to make sure that there is no danger of potential misinterpretation or nuances of meaning causing legal problems? Huw Irranca-Davies: We are very confident. I think you are right to raise this issue. It is always an issue of concern, particularly with LCOs and devolution of powers, to make sure that the legal interpretation of what we are putting through is correct. We are confident, as confident as you ever can be with legal draftsmanship, that this is the correct definitions and terminology. Q108 Alun Michael: In Matter 15.1 of the revised Order there is a reference to "safeguarding and promoting the wellbeing of vulnerable children" and there is a new and broad definition of "vulnerable children" in the interpretation section. Obviously we are conscious that there have been changes for various reasons. What do those amendments do? Do they add to the scope of the revised Order compared to the previous Order? Do they change anything, in fact? Huw Irranca-Davies: I am just checking the actual point. Yes, they build on what I began by mentioning, pulling together definitions that make sure that we extend the scope of the definition of "vulnerable children" to as wide and appropriate a group of children as possible, and that includes children in care or subject to Care Orders and children looked after by local authorities as well. Within that section you are referring to we are confident that covers, to go back to what I said before, what it says on the tin, it does not go any further than it should. Q109 Alun Michael: Finally, should the concept of "play" be included within the definition of "wellbeing"? As you will be aware, the importance of play under the UN Convention on the Rights of the Child is considerable and in Wales there has always been a considerable emphasis on the place of play within children's development. Should that be made explicit, do you think? Huw Irranca-Davies: There was great discussion and debate over this, including within the National Assembly for Wales Committee which was looking at this. I must declare an interest as a former member, and honorary member, of the Institute of Leisure and Amenity Management, in which we regularly and professionally argued the case that play was encompassed within the field of recreation, and so on. Q110 Alun Michael: You are not saying your background is limited to language, are you? Huw Irranca-Davies: No, it is far wider. Certainly we would anticipate that play would fall within the fields that we have extended it to, which include recreation and so on, and certain professional bodies, he says from his own past, would interpret it in that way as well. It is an important point because play falling within recreation needs to be within here. Q111 Alun Michael: Just a thought. It might be useful for that be made clear within the Memorandum, for instance, for the avoidance of doubt in the future. Huw Irranca-Davies: Yes. Q112 Mr Jones: This is again on the definitions. I think you were here, Minister, when I asked the previous witnesses about what appears to me to be an inconsistency between paragraph (b) and paragraph (c) in the definition of "vulnerable children". I appreciate you are saying that you are effectively duplicating current definitions, but it does seem to me, notwithstanding, to be an inconsistency and I find it hard to see why the word "significant" or "significantly" is used in the one paragraph but not in the other when in both cases we are talking about health. Huw Irranca-Davies: If it may be of help, Mr Jones, my reading of this would be that they are not mutually exclusive. However, if it is of help --- Q113 Mr Jones: No, I appreciate that. Huw Irranca-Davies: If it is of help, what I am quite happy to do is to get our officials to write and clarify why what I am saying is correct, that they are not mutually exclusive. Q114 Mr Jones: I do appreciate that, Minister, it just seems to me not mutually exclusive but rather inconsistent. A note of that sort would be very helpful. Huw Irranca-Davies: We will do that. Q115 Nia Griffith: I would like to address cross-border issues. Obviously there are cases where vulnerable children in Wales receive services in England and vice versa, and I would just like to know how these cross-border issues will be addressed, particularly in the context of the Assembly Government's enthusiasm for perhaps widening some of the differences of approaches between England and Wales. Huw Irranca-Davies: Indeed. It is a fair question and I applaud the work of the Welsh Affairs Select Committee in looking at various cross-border issues at the moment. It is an area of quite right concern to see that it works properly. What I would say is it is undoubtedly the case that even at present there are established ways of working, conventions, protocols, that make it work. Both the Welsh Assembly Government Ministers in most areas and the Whitehall departments and the various public authorities on both sides of the border would find it bizarre and strange if that close co-operation on cross-border issues were not to continue. It might be worth mentioning that whilst this Order mainly confers function in relation to authorities in Wales, 15.5, for example, includes the British Transport Police. I use that as one example because within this LCO what it refers to, and I think it is has been referred to before on this Committee in your scrutiny, is the issue of "co-operation and arrangements". We see that this is within the LCO, this is very much in the spirit of what is going on at the moment and we would not only expect it to continue but, frankly, we would be amazed if it did not continue as well. Q116 Nia Griffith: If legislation and policy do diverge in England and Wales, do you see any issues on equality of provision arising? Huw Irranca-Davies: There might well be, and this does depend on the measures brought forward. There might well be of issues of differences of policy that result in different practical experiences for individual children and young people on the ground, that is undoubtedly true, and I believe the Children's Commissioner in her evidence mentioned that possibility as well. What we are looking at within this LCO is the impact upon children and young people that primarily come under public authorities in Wales. As such, there could be a divergence of policy. The discussion with English authorities will continue to go on, but under a devolutionary situation you cannot ignore the fact that, yes, there may be Welsh solutions for Welsh children and Welsh young people. They may well be different, there may be a contrast with individual experiences of people, but that is part of the benefit of devolution as well in that the Welsh Minister can bring forward solutions that recognise a different strategy and a different approach within Wales. Q117 Nia Griffith: The scope of the proposed Order has implications for the Youth Justice Board, the police and the courts. What effect will the proposed Order have on each of these bodies, and how will the interface between them be managed? Huw Irranca-Davies: There will certainly be no direct impact on the functioning of Youth Justice and other similar bodies which are retained areas of authority. Even though there are aspects of a local authority's duties for youth justice which touch on the safeguarding of people who come into the criminal justice system and preventing children and young people from coming into the youth justice system, the essence of the local authority's duties is in relation to assistance around sentencing. Youth justice is, therefore, outside the scope of this Order and it is important to be clear on that to the extent that it is possible to isolate individual provisions, such as the local authority's function under section 38 to provide persons to act as appropriate adults, for example, which it could be argued are more about safeguarding than protecting others or sentencing. It is worth saying, Chairman, that there is no measure that comes out of this LCO that can impact upon a Minister of the Crown function without their consent. Q118 Mark Williams: We had a very clear answer earlier on from the Assembly Minister on the scope of the proposed Order in respect of "reasonable punishment", in fact to smacking. Could you add to that clarity, please, Minister? Huw Irranca-Davies: Yes, if it is of help to the Committee, because I know this has been an area that has had a lot of attention around this LCO and that is why I think it is important to re-emphasise that this is a very good LCO, that it does very much what it says on the tin. This is quite a specific, well-defined LCO that gives a competence to the Assembly to really make a difference to children and young people's lives, but it does not touch on the issue of smacking and reasonable chastisement. I know there are people who will continue to push forward that argument but it does not fall within this LCO. If it would help, the UK Government's position in respect of this LCO is that a prohibition on smacking would relate primarily to the substantive issue of criminal law as opposed to social welfare fields, and that is where our position remains on this. That should not deviate from what is a very good, very effective, potential LCO here. It does not touch on that area and that is the reason why, we essentially believe that it is an issue of criminal law rather than social welfare. Q119 Mr Jones: Minister, you are assuring the Committee, are you, that this LCO and, indeed, no LCO could ever be used to devolve powers that conflicted with non-devolved areas, such as what we have just been discussing, social policy, criminal justice and the proposed ban on smacking? Huw Irranca-Davies: Indeed, yes. I can give you that assurance from a UK Minister's perspective. It is something we discussed in some detail at the earlier stages with Ministers and, of course, you have had representations from the National Assembly for Wales Assembly Members as well. The UK Government firmly considers that a ban on smacking would not fall within field 15 of social welfare or any other field. Our view is that a prohibition on smacking would relate to criminal justice, which is not represented in Schedule 5. If you are asking for a degree of confidence that this LCO cannot do that, this LCO is very much fit-for-purpose but it is not that purpose. Q120 Mr Jones: What if after the making of the LCO the Assembly Government took a different view and attempted to introduce a ban on smacking? Would the UK Government then intervene? Huw Irranca-Davies: That would be another day. Q121 Mr Jones: Yes, but what is your view now? It is quite clear that there is pressure within the Assembly for that, is it not? Huw Irranca-Davies: At that stage, if it did ever come to that, having expressed the clear opinion of the UK Government here and now, and it has been our consistent view, then it would be an issue for legal decision and for the Attorney General to look at and make a decision. Mr Williams: In any event, the smacking ban could not be implemented by the National Assembly via this LCO. Matter 15.1 relates to the functions of public authorities in relation to the safeguarding of children from harm and neglect, not to anyone else. Q122 Mr Jones: So we have your utter assurance, do we, Minister, 100% copper-bottomed assurance? Huw Irranca-Davies: Yes. Q123 Mr Jones: That could come back to haunt you! Huw Irranca-Davies: No. Q124 Mr Jones: What powers will be retained by the Government, that is the UK Government, in relation to vulnerable children and child poverty, other than, of course, the smacking ban that we have just discussed? Huw Irranca-Davies: All of the Crown functions. I have already mentioned issues like youth justice and the criminal justice system. There is an interplay at the fringes with Welsh Assembly Government, but those areas will not be touched by this LCO whatsoever. In fact, it would be a standard response in terms of all of the LCO process of devolution of powers that no Crown functions could be impinged on. Other aspects would include benefits. For example, whilst we are looking at a very intelligent way of delivering additionality into Child Trust Funds, this LCO does not give power over the wider benefit system. Child Support is another example. There are clear retained areas that are not included within this LCO. Q125 Mr Jones: And you very helpfully set them out in the table attached to the LCO. Huw Irranca-Davies: Yes. Q126 Mr Jones: Do you consider that those retained powers will cause any difficulty to the Assembly Government? Huw Irranca-Davies: I do not believe so. There is certainly a desire, both from the UK Government and the Welsh Assembly Government, on a range of matters, whether it is to do with child poverty or elsewhere, to make sure that our combined policies are most effective. The nature of where we are with the Government of Wales Act means that there is clarity with retained powers and clarity with devolved powers, and that is part of the role of the scrutiny that the Welsh Affairs Select Committee is doing so very well. Collaboration, co-operation, looking at what works best, but also a recognition that there are powers that remain at the Westminster end and powers that are rightly put down closer to the people in Wales. Q127 Chairman: Thank you very much for your evidence today. Can I place on record our particular appreciation as a Committee for your very positive remarks at the beginning of this session. I also wish to place on record the fact that we, as a Committee, intend to produce a memorandum for the Secretary of State when he is reviewing the process. That memorandum will include my discussions with various Assembly Members who have been, so to speak, at the coalface of this process and we will certainly value their comments to us and that is in the spirit of the co-operation and co-ordination that we are all committed to achieving here on this Committee. Huw Irranca-Davies: Thank you, Chairman. Chairman: Thank you very much. |