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Session 2000-01
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Children's Commissioner For Wales Bill


 

These notes refer to the Children's Commissioner for Wales Bill
as brought from the House of Commons on 8th February 2001 [HL Bill 20]

Children's Commissioner For Wales Bill


EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Children's Commissioner for Wales Bill as brought from the House of Commons on 8th February 2001. They have been prepared by the Wales Office in order to assist the reader of the Bill and help inform debate upon it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not intended to be a comprehensive description of the Bill, so where a clause or a part of a clause does not seem to require any comment, none is given.

BACKGROUND AND SUMMARY

3. This Bill implements the policy of the Government and the National Assembly for Wales ('the Assembly') on establishing a Children's Commissioner for Wales ('the Commissioner') with a wide-ranging scope, which encompasses all children in Wales and different sectors and services. This policy is based on the recommendations of the Assembly's Health and Social Services Committee in its report 'A Children's Commissioner for Wales', published in May 2000. This was itself based on the results of the widespread consultation undertaken by the Committee, which appeared to show a consensus in Wales in support of such a policy.

4. The office of the Commissioner is being established initially by virtue of Part V of the Care Standards Act 2000 ('the Act') to reflect Sir Ronald Waterhouse's recommendations on the establishment of a children's commissioner in his report Lost in Care - The Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974, (HC201) published in February 2000.

5. The Commissioner's functions under the Act extend to all services for children to be regulated by the Act : children's homes, residential family centres, local authority fostering and adoption services, fostering agencies, voluntary adoption agencies, domiciliary care, private and voluntary hospitals/clinics, the welfare aspects of daycare and childminding services for all children under the age of eight; and the welfare of children living away from home in boarding schools.

6. The Commissioner's functions under the Act include the reviewing and monitoring of arrangements by service providers for:

(a) dealing with complaints, for ensuring that proper action is taken in response to information regarding possible unlawful or dangerous activities, or their concealment ("whistleblowing"), and for making persons available to represent children's views and provide them with advice and support ("advocacy");

(b) the provision of advice and information;

(c) the examination, where the Commissioner considers appropriate, of the cases of particular children who are receiving or have been in receipt of such services;

(d) the provision of assistance, including financial assistance, and representation, in respect of proceedings or disputes or in relation to the operation of procedures and arrangements monitored by the Commissioner; and

(e) making reports, including an annual report on the exercise of his or her functions to the Assembly.      

7. The power to require the provision of information and the disclosure of documents may be conferred by the Assembly on the Commissioner in connection with the review and monitoring of the activities specified above and for the purposes of examining particular cases or determining whether a report's recommendations have been complied with.

8. The Bill extends the scope of the Commissioner's role to bodies and persons operating in Wales which have statutory functions or provide statutory services in functional fields devolved to the Assembly.

9. However the Commissioner's functions under Part V of the Act of reviewing and monitoring arrangements for complaints, for whistleblowing and for advocacy, relate specifically to regulated children's services (as defined in section 78(2) of the Act) and the Bill therefore restricts the extension of these functions to bodies and persons in Wales who provide direct statutory services to or in respect of children, and persons that provide such services on their behalf. This will concern primarily the education and training, health and social services sectors; and the main persons affected will be local authorities, in respect of their provision of education and social services, schools, further and higher education institutions, training organisations, health authorities and National Health Service trusts. The Assembly will also be one of the bodies subject to this function of the Commissioner.

10. The Bill confers on the Commissioner the power to review the effect on children in Wales of any existing or proposed legislation of the Assembly. The Bill also confers on the Commissioner the power to review the effect on children in Wales of any policy, or practice of, or service provided by the Assembly or any body or person listed in the Bill.

11. The Bill, in addition, provides that the principal aim of the Commissioner in exercising his or her functions is to safeguard and promote the rights and welfare of children.

COMMENTARY

Clause 1: Application of Part V of the Act                         

12. Clause 1(1) substitutes a new section 78(1) of the Act. The effect of the substitution is to extend the application of Part V to any child receiving services provided by any of the persons listed in the new Schedule 2B, and to other children if they are ordinarily resident in Wales. In a similar way, Clause 1(3) also extends the Assembly's regulation-making power in section 78(6)(a). Section 78(6)(a) vests the Assembly with the power to provide in regulations for Part V of the Act to be treated as having applied to a child at a time prior to the commencement of Part V if it would otherwise have so applied. In addition, Clause 1(2) inserts subsections (1A) and (1B) into section 78, giving a power for the Assembly to extend, by regulations, the application of Part V of the Act to care leavers aged 18 or over who receive post care services from local authorities by virtue of the amendments to the Children Act 1989 introduced by the Children (Leaving Care) Act 2000.

Clause 2 : Principal Aim of the Commissioner                         

13. Clause 2 inserts section 72A into the Act, which provides that the principal aim of the Children's Commissioner for Wales in exercising his or her functions is to safeguard and promote the rights and welfare of children to whom Part V of the Act applies.

Clause 3: Review of the exercise of functions of the Assembly and other persons

14.     Clause 3 inserts section 72B into the Act. Section 72B(1) introduces a power for the Commissioner to review the effect of the Assembly's exercise or proposed exercise of its functions (including the making or proposed making of any subordinate legislation) and those of the other persons in Wales listed in new Schedule 2A, on children to whom Part V applies.

15.     New Schedule 2A to be inserted into the Act lists the persons whose functions are subject to review in accordance with section 72B(1). Section 72B(2) to (5) vests the Assembly with an order-making power to add to, delete from or make alterations to the list of persons in the future. A person or body may be added to the list in respect of some or all of its functions if it has functions in a field in which the Assembly has functions, provided the person is also established under an enactment or by virtue of Her Majesty's prerogative or in any other way by a Minister of the Crown, government department or the Assembly, and at least half of the person's expenditure in relation to its functions in Wales is funded directly by the Assembly. Section 72B(4) confers the same order-making power if the person is not so funded by the Assembly, provided the Secretary of State's consent is given. Section 72B(5) prevents persons being added if their sole or main activity is the investigation of complaints by the public, or the supervision or review of follow-up action resulting from such investigation. Section 72B (6) prevents an order being made under subsection (2) if the effect would be to allow the Commissioner to review functions in a field in which the Assembly has no functions.

Clause 4: Review and Monitoring of arrangements

16.     Clause 4 extends the Commissioner's functions in section 73 of the Act of reviewing and monitoring arrangements made by providers of services regulated under the Act for dealing with complaints and representations in respect of those services, and for whistleblowing and for advocacy. The Commissioner's functions are extended to providers of other services in Wales to or in respect of children.

17.     Clause 4 (3) inserts into section 73 a new subsection (1A) which provides that the Commissioner may also review the effect on children of the absence of such arrangements. Clause 4(5) inserts into section 73 new subsections (2A) to (2B) which extend to providers of other services the Commissioner's functions of reviewing and monitoring of arrangements. The list of providers, set out in new Schedule 2B, includes the Assembly; county and county borough councils, health authorities, National Health Service trusts; schools; further and higher education institutions; and any person providing services on behalf or, or under arrangements with, any of the persons listed. Clause 4(5) also inserts into section 73 a new subsection (2C), which provides that the Assembly's arrangements for dealing with complaints or representations in respect of services provided by any of the other persons listed also come within the Commissioner's review and monitoring of arrangements function.

18.     Clause 4(6) makes consequential amendments to section 73(3), and clause 4(7) inserts a new subsection (3A) into section 73, to establish that the arrangements made by the persons listed in Schedule 2B (and those providing services on their behalf) for dealing with whistleblowing come within the Commissioner's review and monitoring function under section 73. Clause 4(8) amends clause 73(4) to provide that the arrangements made by the persons listed in Schedule 2B (and those providing services on their behalf) for dealing with children's advocacy come within the Commissioner's review and monitoring function under clause 73.

19.     Clause 4(9) inserts sections 73(5A) to (5C), which vests the Assembly with an order-making power to alter the list of persons subject to the Commissioner's power to review its arrangements for dealing with complaints and other matters. The power is given in the same terms as the order-making power in the new section 72B(3) to (5) (outlined in paragraph 15) in respect of the list of persons subject to the Commissioner's review and monitoring function, but with the additional criterion that the person must provide services in Wales to or in respect of children. Clause 4(9) also inserts a new section 73(5D) which prevents persons being added if their sole or main activity is the investigation of complaints by the public, or the supervision or review of follow-up action resulting from such investigation. In addition, Clause 4(9) inserts a new subsection 73(5E) which prevents an order being made under subsection (5A) if the effect would be to allow the Commissioner to review functions in a field in which the Assembly has no functions.

Clause 5: Further functions of the Commissioner

20.     Clause 5 inserts paragraph (aa) after section 76(1)(a) of the Act, to extend the Assembly's power to make regulations enabling the Commissioner to assist a child in making a complaint or representation. The power is extended to complaints and representations involving any of the persons mentioned Schedule 2B or section 73(2B).

Consequential provision

21.     The provisions in sections 118 and 119 of the Act enable the Assembly by statutory instrument to make supplementary and consequential provisions, including provision amending or repealing an enactment or instrument. This power will also be available in respect of the provisions of the Act inserted by this Bill. Clause 6 extends the provision under section 118(8) to include an order made by the Assembly, as well as regulations.

22.     The Bill provisions, extending the scope of Part V of the Act, will similarly extend other powers of the Commissioner and of the Assembly insofar as they apply to the new provisions.

FINANCIAL EFFECTS OF THE BILL

23. The costs of extending the functions of the office of the Children's Commissioner for Wales in accordance with the provisions of the Bill are estimated at £300,000 per annum. This will be funded by the National Assembly for Wales out of payments received from the Secretary of State for Wales under section 80 of the Government of Wales Act 1998. The Assembly has made provision for this funding from financial year 2001. There are no tax implications.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

24. It is not anticipated that the Bill will entail any changes to public service manpower, other than the staffing of the Commissioner's office, which will be met from the yearly budget.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT (RIA)

25.     The RIA indicates that the benefits of extending the scope of the Commissioner outweigh the costs. A copy of the full RIA has been placed in the House Library and is available on request.

26.     The establishment of a Commissioner with a wide-ranging scope, extending to all children in Wales and across different sectors and services, is considered to be of primary importance in achieving the furtherance and improvement of children's rights and welfare in Wales. The extension of the Commissioner's remit under this Bill will not introduce new, or alter existing, regulation, other than in respect of a duty to comply with the Commissioner's right to information, explanations or assistance in respect of the exercise of his or her new functions. A failure to comply with this right, without lawful excuse, could be certified by the Commissioner to the High Court. Based on the consensus in Wales for the establishment of a Commissioner who has a statutory right to such information, it is not expected that the level of failure to comply, without lawful excuse, will be significant.

27.     It is estimated that any extra cost to bodies or persons, or anyone providing services on their behalf, will be negligible as the information, explanations and assistance will already be required to be available in most cases, whether as part of existing complaints/representation systems operated by those bodies or persons or to facilitate public access to information in line with the principles of open government. The Commissioner will also be able to pay expenses and allowances to persons who attend or provide information for the purpose of the Commissioner's examination function, which may be particularly appropriate for the voluntary sector and small businesses, who may be providing services on behalf of others.

EUROPEAN CONVENTION ON HUMAN RIGHTS

28.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before Second Reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Williams of Mostyn has made the following statement:

In my view, the provisions of the Children's Commissioner for Wales Bill are compatible with the Convention rights.

COMMENCEMENT

29. By virtue of clause 7, the provisions in the Bill will come into force on a date or dates appointed by the Assembly by order.

 
 
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Prepared: 9 February 2001