Lord Clement-Jones: My Lords, the noble Earl has raised some very important points on this series of amendments. I do not need to go into much greater detail than he has already since they are precisely the questions that I wish the Minister to answer when she replies.
I believe that it was the noble Baroness, Lady David, who tabled the original amendment about a children's commissioner. While one understands that the implementation of the Waterhouse recommendations should first take place in Wales, I cannot understand the logic for not extending the same provision to England. It may be that essentially the Government are saying that the powers of the commissioner are effectively the same as those of the children's rights director. Is this a rose by any other name? If that is the case we need an assurance from the Minister that the explicit powers provided to the commissioner will also be available to the children's rights director when the regulations are made. Can the Minister give an assurance that the regulations to be made will exactly reflect the provisions in the primary legislation as they apply to Wales? When will those draft regulations be made? Like the noble Earl, Lord Howe, I seek a considerable amount of further information about the whys and wherefores of treating the two jurisdictions so differently.
My final point is probably one that should not be made at this time of night. In connection with Amendment No. 277, I noted that the Minister described the amendment as transitory rather than transitional. I wonder whether that is a new government description of the effect of certain clauses.
Lord Roberts of Conwy: My Lords, this part of the Bill which establishes a children's commissioner for Wales has been much heralded. It is primarily the outcome of the report by Sir Ronald Waterhouse on child abuse in North Wales. He reported in February after this Bill had had its Second Reading. His very first recommendation was that,
"An independent Children's Commissioner for Wales should be appointed".
He went on to outline the duties of the commissioner.
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The recommendation was accepted by the Government in their response to the report, which was a very important milestone. The recommendation was also considered in some depth by the National Assembly and at least two of its committees. It appeared that the Assembly wished the commissioner's remit to extend to all children in Wales. I agree with the Minister that that goes over the top. As the Bill stands, the commissioner's remit is confined to children in all care services regulated by the legislation, and I believe that to be a good place to start.
I understand that discussions between the Assembly's Health and Social Services Secretary, Jane Hutt, and the Secretary of State for Wales, Paul Murphy, continue. However, I believe that they would be well advised to wait and see how they get on with the implementation of this part of the Bill before they seek to extend the role of the commissioner still further. I agree with the Minister that this Bill is not suitable for such an extension.
In view of the past history of abuse in North Wales and what is coming to light elsewhere as a result of police inquiries--the example of Lancashire was referred to by my noble friend Lord Howe--I welcome the appointment of a commissioner as proposed in the Bill. I wish the office all success in the performance of the functions ascribed to it.
However, two points concern me. The first is the curious provision in Clause 75(6) which prohibits the commissioner from identifying in a report anyone other than the person being investigated. It is the publication of the name of the person being investigated that concerns me. The investigation may arise as a result of a child's complaint. The case may or may not involve a criminal offence; the complaint may or may not be soundly based. In either case, the person who is being investigated may attract a great deal of adverse public attention and will have no remedy in the law of defamation, as is made clear in subsection (7).
In my view, the commissioner will have to exercise the utmost care, as did Sir Ronald Waterhouse in the conduct of his inquiry, if the reputations of innocent people are not to be maliciously damaged. At this point, I shall say only that there is a lot of chequebook journalism about and that people who are involved and work with children in care must be protected. We must be careful that the work remains possible and that people are not scared off, leaving a shortage of those available to take care of children.
My second concern arises from the retrospective aspect of Clause 77(6) and the power to make regulations which apply to childcare before this part of the Bill came into effect. We do not like retrospective legislation at best, but it is proposed in this context. Does it mean, for example, that the cases thoroughly examined by Sir Ronald could be reopened if the Assembly so provided? That would be reopening a can
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of worms which I thought Sir Ronald scoured most judiciously. I should be grateful for an explanation of what is meant by that subsection.
Baroness Farrington of Ribbleton: My Lords, feeling slightly like an Alice in Wonderland character, the answer to the noble Lord, Lord Clement-Jones, is, when I say "transitory" I mean "transitional".
A range of issues has been raised. As all noble Lords recognise, this is an extremely important development and follows a harrowing account of years of suffering by children. The questions covered the children's rights director and the children's commissioner for Wales, and the similarities and differences between their posts. The key similarities between the two are that both will be able to investigate whistle blowers and the procedures set up for them, the effectiveness of complaints systems and the effectiveness of advocacy services. Potentially, both can examine individual cases and both can report to government--to the National Assembly and the Secretary of State for Health. Both are independent of government. Both posts will ensure that children's voices are listened to at the highest level, and both are senior appointments representing significant new safeguards for children.
There are differences. The children's commissioner for Wales will be empowered to set up his own office and employ staff. The children's rights director, as a senior employee of the national care standards commission, will not need such powers. The children's commissioner for Wales will possess specific powers, including the right to demand the protection of information, the right to call witnesses and the right to certify an offence to the High Court if he is obstructed in the exercise of his powers.
In England, the CRD will not have those specific powers but will rely instead on the powers prescribed to NCSC, which will be at least as strong. The functions of the children's rights director are limited to those of the NCSC. The commissioner in Wales is limited by the functions set out in this Bill, which are broadly the same. However, further primary legislation could extend the responsibilities for the Welsh commissioner in a way that would not be achievable for a post within the NCSC.
A range of issues are concerned with the differences in the regulation of provision for children under the age of 8, with a different role in England where the services will be regulated separately by Ofsted and will not be in the remit of the NCRD. That is the one big difference between the two.
The functions and powers under the Care Standards Bill will be very similar. The difference in structure derives primarily from the different constitutions of the regulatory bodies that will be set up in both places. I note the point raised by the noble Lord, Lord Roberts, that perhaps the Assembly should wait a while before it assesses how things progress. One of the elements of devolution is that ultimately that is a matter for judgment by the Assembly.
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The noble Lord, Lord Roberts, did me the courtesy of telling me the detailed points that he intended to raise. With regard to Amendment No. 92, the commissioner will have discretion to name individuals under subsection (6) if, after taking into account the public interest and that of the complainant and other people, he or she considers it necessary.
We believe it is extremely important that it is recognised that the main role of the commissioner is to monitor the operations of systems rather than to attribute blame to individuals. Ultimately, the attribution of blame is a matter for the role of employers and, ultimately again, the criminal justice system.
The retrospective provision which the noble Lord raised--that is, the issue of post-Waterhouse--will not mean that the commissioner will be able to re-open matters already dealt with by Sir Ronald Waterhouse's tribunal because, by virtue of Amendment No. 93 in Clause 76, he will not be authorised to look into matters which have been determined already by a court or tribunal.
I believe that I have answered points raised by noble Lords. Should any matters be outstanding, I shall of course write to them. I commend Amendment No. 88 to the House.
On Question, Motion agreed to.
89After Clause 67, insert the following new clause--
REVIEW AND MONITORING OF ARRANGEMENTS
(" .--(1) The Commissioner may review, and monitor the operation of, arrangements falling within subsection (2), (3) or (4) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in safeguarding and promoting the rights and welfare of children to whom this Part applies.
(2) The arrangements falling within this subsection are the arrangements made by the providers of regulated children's services in Wales, or by the Assembly, for dealing with complaints or representations in respect of such services made by or on behalf of children to whom this Part applies.
(3) The arrangements falling within this subsection are arrangements made by the providers of regulated children's services in Wales, or by the Assembly, for ensuring that proper action is taken in response to any disclosure of information which may tend to show--
(a) that a criminal offence has been committed;
(b) that a person has failed to comply with any legal obligation to which he is subject;
(c) that the health and safety of any person has been endangered; or
(d) that information tending to show that any matter falling within one of the preceding paragraphs has been deliberately concealed,
in the course of or in connection with the provision of such services.
(4) The arrangements falling within this subsection are arrangements made (whether by providers of regulated children's services in Wales, by the Assembly or by any other person) for making persons available--
(a) to represent the views and wishes of children to whom this Part applies; or
(b) to provide such children with advice and support of any prescribed kind.
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(5) Regulations may confer power on the Commissioner to require prescribed persons to provide any information which the Commissioner considers it necessary or expedient to have for the purposes of his functions under this section.")
90Insert the following new clause--
EXAMINATION OF CASES
(" .--(1) Regulations may make provision for the examination by the Commissioner of the cases of particular children to whom this Part applies.
(2) The regulations may include provision about--
(a) the types of case which may be examined;
(b) the circumstances in which an examination may be made;
(c) the procedure for conducting an examination, including provision about the representation of parties;
(d) the publication of reports following an examination.
(3) The regulations may make provision for--
(a) requiring persons to provide the Commissioner with information; or
(b) requiring persons who hold or are accountable for information to provide the Commissioner with explanations or other assistance,
for the purposes of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.
(4) For the purposes mentioned in subsection (3), the Commissioner shall have the same powers as the High Court in respect of--
(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and
(b) the provision of information.
(5) No person shall be compelled for the purposes mentioned in subsection (3) to give any evidence or provide any information which he could not be compelled to give or provide in civil proceedings before the High Court.
(6) The regulations may make provision for the payment by the Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (3).")
91Insert the following new clause--
(" .--(1) The Commissioner may certify an offence to the High Court where--
(a) a person, without lawful excuse, obstructs him or any member of his staff in the exercise of any of his functions under regulations made by virtue of section (Review and monitoring of arrangements)(5) or (Examination of cases); or
(b) a person is guilty of any act or omission in relation to an examination under regulations made by virtue of section (Examination of cases) which, if that examination were proceedings in the High Court, would constitute contempt of court.
(2) Where an offence is so certified the High Court may inquire into the matter; and after hearing--
(a) any witnesses who may be produced against or on behalf of the person charged with the offence; and
(b) any statement that may be offered in defence,
the High Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the same offence in relation to the High Court.")
92Insert the following new clause--
(" .--(1) Regulations may confer power on the Commissioner to assist a child to whom this Part applies--
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(a) in making a complaint or representation to or in respect of a provider of regulated children's services in Wales; or
(b) in any prescribed proceedings,
and in this subsection "proceedings" includes a procedure of any kind and any prospective proceedings.
(2) For the purposes of subsection (1), assistance includes--
(a) financial assistance; and
(b) arranging for representation, or the giving of advice or assistance, by any person,
and the regulations may provide for assistance to be given on conditions, including (in the case of financial assistance) conditions requiring repayment in circumstances specified in the regulations.
(3) The Commissioner may, in connection with his functions under this Part, give advice and information to any person.
(4) Regulations may, in connection with the Commissioner's functions under this Part, confer further functions on him.
(5) The regulations may, in particular, include provision about the making of reports on any matter connected with any of his functions.
(6) Apart from identifying any person investigated, a report by the Commissioner shall not--
(a) mention the name of any person, or
(b) include any particulars which, in the opinion of the Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,
unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Commissioner considers it necessary for the report to mention his name or include such particulars.
(7) For the purposes of the law of defamation, the publication of any matter by the Commissioner in a report is absolutely privileged.")
93Insert the following new clause--
(" .--(1) This Part does not authorise the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal.
(2) This Part does not authorise the Commissioner to exercise any function which by virtue of an enactment is also exercisable by a prescribed person.")
94Insert the following new clause--
(" .--(1) This Part applies to a child to or in respect of whom regulated children's services in Wales are provided.
(2) In this Part, "regulated children's services in Wales" means any of the following services for the time being provided in respect of children--
(a) services of a description provided by or in Part II undertakings, so far as provided in Wales;
(b) services provided by local authorities in Wales in the exercise of relevant adoption functions or relevant fostering functions;
(c) services of a description provided by persons registered under Part XA of the 1989 Act, so far as provided in Wales;
(d) accommodation provided by schools or by an institution within the further education sector (as defined in section 91 of the Further and Higher Education Act 1992), so far as provided in Wales.
(3) For the purposes of this Part--
(a) in the case of the services mentioned in subsection (2)(a), the person who carries on the Part II undertaking is to be treated as the provider of the services;
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(b) in the case of the services mentioned in subsection (2)(d), the relevant person (as defined in section 87 of the Children Act 1989) is to be treated as the provider of the services.
(4) For the purposes of this section, an establishment or agency, and an undertaking of any other description, is a Part II undertaking if the provider of the services in question is for the time being required to be registered under that Part.
(5) Where the activities of an undertaking are carried on from two or more branches, each of those branches shall be treated as a separate undertaking for the purposes of this Part.
(6) Regulations may provide--
(a) for this Part to be treated as having applied to a child at any time before the commencement of this Part if regulated children's services in Wales were at that time provided to or in respect of him;
(b) for references in this Part to children to whom this Part applies to include references to persons who, at any prescribed time, were such children.
(7) In this Part--
"information" includes information recorded in any form;
"regulations" means regulations made by the Assembly.
(8) In this section, "relevant adoption functions" and "relevant fostering functions" have the same meanings as in Part III.")
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 89 to 94.
Moved, That the House do agree with the Commons in their Amendments Nos. 89 to 94.--(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.