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Lord Roberts of Conwy: My Lords, I thank the Minister for giving way. She mentioned the Welsh Language Board. The Welsh Language Act 1993, to which I appended my name when it was a Bill, has powers over all public authorities in Wales, including those operating in the non-devolved areas.
Baroness Farrington of Ribbleton: My Lords, the noble Lord is right. The terms of reference of the Welsh Language Board are extremely tightly drawn and relate only to the Welsh language, whereas the role and responsibilities proposed for the commissioner are much more wide-ranging. However, I hope to deal with some of the concerns that the noble Lord, Lord Roberts, expressed.
We do not believe that it would be consistent with the devolution settlement for the commissioner's jurisdiction to extend to UK government departments and bodies operating within the UK Government's area of responsibility. The noble Lords, Lord Hooson and Lord Thomas of Gresford, and my noble friend Lady David raised different aspects of the issue. The
The Children's Commissioner for Wales is a statutory office and therefore has the functions which the law confers on it. It is reasonable for the commissioner to consider any relevant issue in exercising his functions, but he is limited by the Bill to reviewing the exercise of the Assembly's functions or those of the public bodies listed in the new schedules. However, the noble Lord, Lord Thomas of Gresford, and the noble Earl, Lord Listowel, may be reassured that the commissioner will also have power to exercise functions which are incidental to his core functions. As my noble and learned friend indicated, he may receive correspondence from, or on behalf of, children about non-devolved matters which he may wish to bring to the attention of relevant government departments. That would not give him substantive functions in non-devolved areas, nor would he have any formal power to require information to be provided in relation to such matters. However, it is very likely that government departments would react positively given the profile of the commissioner's office.
My noble friend Lady Andrews and the noble Earl, Lord Listowel, referred to what has already been done to tackle the problems facing children. The commissioner may also formally bring to the Assembly's attention non-devolved matters about which he becomes aware. As a result, the Assembly itself may wish to consider and make representations to the UK Government. I believe that answers one of the concerns of my noble friend Lord Pry-Davies and the noble Baroness, Lady Walmsley. I should like to make clear that the Government see nothing in this Bill that would debar the commissioner from commenting informally on matters that do not come within his jurisdiction.
Perhaps I may reassure the noble Lords, Lord Laming and Lord Hooson, that all of the recommendations of the Waterhouse report on the commissioner are already implemented in the Care Standards Act, but neither Sir Ronald Waterhouse nor the Assembly expects the commissioner to protect looked-after children by himself. Other key elements of the Care Standards Act, including in particular the proposed creation of a care standards inspectorate for Wales, have a vital role to play in that respect. The commissioner will oversee the range of improved arrangements being put in place by legislation and other means.
My noble friends Lord Brookman and Lord Davies of Coity asked whether the prevention of abuse would be covered by the terms of reference of the commissioner. The commissioner's formal powers relate to bodies which provide statutory services and extend to non-public bodies if they provide services under arrangements with the relevant public bodies.
Lord Davies of Coity: My Lords, I am most grateful to my noble friend for giving way. It strikes me that the only difference between us is the formality or informality with which the commissioner would be entitled to approach certain matters. The thrust of my approach is that, rather than being allowed to deal with matters in an informal fashion, the commissioner's formal position gives greater force to what he says and does.
Baroness Farrington of Ribbleton: My Lords, my noble friend's point is covered by the coming together of the different parts of the response to the issues raised in the Waterhouse report. The commissioner's recommendations are likely to be extremely wide-ranging and cover areas from the provision of regulated services right through to all Assembly policies. The commissioner's role is not to enforce the existing regulatory framework, which is rightly the responsibility of the Assembly, but to draw to the attention of the Assembly in carrying out his formal role his views based on his experience and work.
The noble Lord, Lord Laming, raised the question whether the Bill would enable the Assembly to request a report from the commissioner on any matter that affected children and their rights in Wales. The answer is that the Assembly may make regulations under paragraph 8 of Schedule 2 to the Care Standards Act to provide that the commissioner can make periodic or other reports to the Assembly relating to the exercise of his functions. It is my understanding that the Assembly is about to consult on proposals for reports to be made by the commissioner and that interested bodies--I am aware that my noble friends Lord Brookman and Lord Davies of Coity have an interest in this matter--will be able to make known their views at that time.
Other noble Lords have raised the question of rights of access. The Government want to ensure that the commissioner has all the powers necessary to be effective but do not believe that right of access is necessary. My noble friend Lord Prys-Davies and the noble Lords, Lord Thomas of Gresford and Lord Roberts of Conwy, referred to that issue. We recognise that some children's organisations have expressed concern, and we fully understand the reasons for it. The Waterhouse report catalogued a terrible record of abuse which remained undetected over a long period. In answer to the noble Lord, Lord Roberts of Conwy, child protection measures have changed considerably since then.
All of us want to put in place a framework to prevent such a terrible range of incidents, or even individual cases, occurring again. Would that I could say that such matters will never occur again. However, we believe that a right of access for the commissioner should be considered in the light of the significant improvements in safeguards that have been made post-Waterhouse,
In response to the noble Lord, Lord Laming, my noble friend Lord Prys-Davies and the noble Baroness, Lady Walmsley, the Assembly does not intend the commissioner to take the place of other statutory bodies or agencies or to examine particular cases unless they involve a matter of principle. In response to my noble friend Lord Brookman, the Assembly's report makes clear that the commissioner should have the right to information but does not recommend a right of access.
Baroness Farrington of Ribbleton: My Lords, that is to misunderstand the role of the commissioner and would be fulfilling the inspection function. I understand the concerns of the noble Lord, Lord Hooson. The noble Lord made very detailed points, even within the small space of the gap, but I believe that he is confusing two separate aspects. I undertake to write to the noble Lord on the detail of those points.
The Waterhouse report specifically recommended that a separate agency should be established to undertake the inspection and regulation of services for looked-after children, which was independent of the bodies who provide or arrange for such services. Such a move had already been accepted as necessary, and the new care standards inspectorate for Wales is being established to regulate and inspect services under the Care Standards Act. The inspectorate will have powers of access as an inspection authority.
The commissioner's functions will extend to the inspectorate as it will be an arm of the Assembly. The commissioner may decide to examine a particular case concerning a matter of principle, which could involve a report by the inspectorate following an inspection of, for example, a children's home. However, it is not right to expect the commissioner to have a statutory right of access to examine successfully such a case. He would be able to rely on the right that the Assembly can give him to information, explanations or other assistance, by virtue of regulations under Section 74(3) of the Care Standards Act for his considerations and conclusions. Noble Lords who have expressed a concern in this particular area will want to consider that point in detail.
Several noble Lords raised the question of outcomes of court and tribunal decisions. Courts and tribunals determine specific issues before them, and it is not for the commissioner to try to re-open their determinations. However, the restriction in Section 77(1) of the Care Standards Act does not prevent the commissioner from making informal comment on the outcome of court cases, although, obviously, he would have to be judicious in that respect as he would be operating outside his statutory jurisdiction. That would not prevent him from inquiring into or reporting on related issues within his jurisdiction, such as the actions of a social services department. The commissioner would be able to consider the handling by agencies that come within his jurisdiction of matters that had been looked into by the police but had not resulted in a prosecution. Matters that are determined by courts or tribunals are generally very narrow. The extent of the commissioner's locus would depend on the circumstances of each individual case.
The noble Lord, Lord Roberts, the noble Earl, Lord Listowel, and my noble friend Lord Prys-Davies raised detailed issues relating to individual cases and court hearings. It is appropriate that I should write to noble Lords on these issues, with particular reference to the Climbie case.
My noble friends Lady David and Lord Prys-Davies, among others, raised the issue of the UN Convention on the Rights of the Child. The Assembly may reflect the importance of having regard to the convention, along with other matters, in guidance. The understanding is that the Assembly is committed to the commissioner having regard to the UN Convention on the Rights of the Child in exercising his functions. That has already been reflected in material, such as was made plain in the job description and the advertisement for the post. The commissioner will be able to provide advice and information to any person in connection with his functions by virtue of Section 76(3) of the Care Standards Act.
I have tried to cover the points raised by noble Lords in the debate. The issue was raised of the effect of a coming-together of devolved and non-devolved issues. I hope that I have been able to make plain that in those circumstances the commissioner would be able to include reference to that and make representations about changes needed.
The noble Lord, Lord Thomas of Gresford, raised the issue of bullying. Almost all cases of this--not all I accept--come within the jurisdiction of education establishments. Therefore, they are devolved matters. I reassure my noble friend Lady David that further primary legislation would be needed if a government at some time wanted to curtail or restrict the powers of the commissioner.
As my noble friend Lady Gale and other noble Lords identified, it is important that the Bill recognises, and makes provision for, the proper representation of and listening to of children and young people in Wales as part of making certain that their needs and their interests are protected. All noble Lords have recognised that Wales is leading the way
I thank all noble Lords who have expressed an interest in the Bill. It is now the turn of your Lordships to give the Bill careful scrutiny. I am confident that that scrutiny will be careful and effective. I hope that satisfies the noble Lord, Lord Hooson. My noble friend Lady Gale was right when she said that, along with effective scrutiny, we all want to see this in place as soon as possible. I commend the Bill to your Lordships.