This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Committee of the Centre
Wednesday 2 October 2002
MINUTES OF EVIDENCE
Commissioner for Children
and Young People Bill:
Mr Poots (Chairperson)
Mr K Robinson
Mr C Stewart ) Office of the First Minister
Mrs H Stevens ) and the Deputy First Minister
The Chairperson: I welcome Mr Chris Stewart and Mrs Heather Stevens from the Office of the First Minister and the Deputy First Minister. We will continue our discussion of the Commissioner for Children and Young People Bill with clause 19.
Clause 19 (Disclosure of information by Commissioner)
Mrs Stevens: The provisions in clause 19, which relate to confidentiality safeguards, are standard, and it is important that they be included in the Bill.
Mr Shannon: Christian Action Research and Education (CARE) suggested that the clause be amended to include the following words after 19(1)(d): "or (e) judicial review". Is that possible?
Mrs Stevens: We are happy to take legal advice on that and include such a provision if it is felt necessary.
The Chairperson: That seems reasonable.
Clause 19 referred for further consideration.
Clause 20 (Review of this Act)
Mr Stewart: This is a standard but important provision. The commissioner’s office will be unique in the new Administration, and it is important that there be a mechanism to review and fine-tune its operation as necessary based on the commissioner’s experiences of operating the legislation.
The Chairperson: It has been suggested that an extension to the time allowed to the commissioner to make his or her report under clause 20(2) may be necessary.
Mr Stewart: We will inform the Ministers of the Committee’s views on that, but it is our view that three years ought to be long enough for the commissioner to have formed an opinion on any significant gaps, shortcomings or areas in which the legislation could be improved. There might also be a further timing difficulty if, for example, the period were extended to a fourth year. The Regulations that are made and approved must be dealt with by primary legislation, and we must ensure that the Assembly has time to do that, bearing in mind the timetable for Assembly elections.
The Chairperson: The Committee does not have a problem with that provision; however, others expressed their concerns to the Committee.
Mr K Robinson: That is a relevant point.
Mr Shannon: I have two proposals. First, after clause 20(1)(b) the words "(c) give an oral account and answer questions at the request of the Committee of the Centre" should be inserted.
Mr Stewart: I am happy to put that to the Ministers. It is not unreasonable and is in line with the policy intention that the commissioner be accountable to the Assembly and the Committee of the Centre.
Mr Shannon: Secondly, could the words "and they shall forward a copy to the Committee of the Centre for scrutiny by that Committee" be added to the end of clause 20(5)?
Mr Stewart: That is also in keeping with the policy intention. Perhaps we should consider whether the references in the Bill to reports that must be made to the Assembly are sufficient, or whether we need to state explicitly that they will also go to the Committee of the Centre.
The Chairperson: Perhaps it should be made explicit that the report must be sent to the relevant Committee. In this instance, that is the Committee of the Centre, but, at some stage, responsibility for the commissioner for children could transfer to another Department.
Mr Shannon: That is fair.
Clause 20 referred for further consideration.
Clause 21 (Privilege for certain publications)
Mrs Stevens: This is a standard provision, which is also found in the Commissioner for Complaints (Amendment) (Northern Ireland) Order 1997.
The Chairperson: Members are agreed on clause 21.
Question, That the Committee is content with the clause, put and agreed to.
Clause 22 (Application of this Act: relevant authorities with mixed functions)
Mr Stewart: We know that the Committee is concerned about the definition of "relevant authority" in the clause and, perhaps, also in clause 25, which must be considered. There are gaps in that definition that must be remedied.
The Chairperson: Would it be better to consider that under clause 25?
Mr Stewart: It is more likely to arise in clause 25.
Clause 22 referred for further consideration.
Clause 23 (Application of this Act: matters arising before commencement)
The Chairperson: There are no comments about this clause.
Clause 23 referred for further consideration.
Clause 24 (Interpretation: "child or young person")
Mr Stewart: Clause 24 begins the section of the Bill that deals with definitions. It defines the meaning of "child or young person" in the Bill. The Department’s policy intention is that that basic definition include children from birth to 18 years of age, in keeping with the definition in the United Nations Convention on the Rights of the Child, and the clause reflects that. Young people of up to 21 years of age who are leaving care are also included.
The Chairperson: Several comments have been made about clause 24. Some members want that definition to be extended to cover children in utero.
Mr Shannon: Committee members have suggested that the words "from conception" be inserted after "person" at 24(1)(a) and also in subsection 2.
The Chairperson: Legalistic terminology might be necessary for those insertions. However, in principle, that is what members have suggested.
Mr Stewart: The Department understands that principle. Certain arguments must be considered when making a decision, and Ministers have yet to state their views on the matter. There is a strong argument that this is not the right time to amend the commissioner’s remit as suggested. It is, however, possible that the commissioner could examine the law on that matter under the powers in clause 3 and clause 20.
There are three dimensions to the argument that this is not the right time to extend the commissioner’s remit. First, it could be argued that such an extension would be ineffective. The policy behind the Bill, as drafted, is a rights-based and rights-driven initiative. However, unborn children have limited rights under domestic law. Therefore, the commissioner could have only a limited role in that respect. To put it crudely, the commissioner would have no tools with which to work. The position is similar, in many respects, in international law; there is insufficient jurisprudence with regard to either the European Convention on Human Rights or the United Nations Convention on the Rights of the Child.
It is also the case that in ratifying the United Nations Convention on the Rights of the Child, the United Kingdom made it clear that it applied only to children aged from birth to 18 years, and not from conception. The Assembly cannot change that, because it is United Kingdom policy. Therefore, as with the position on domestic law, the commissioner’s role, if he or she were given the extended remit, would be ineffective because he or she would not have the tools with which to work.
The second strand of the argument concerns duplication of functions. Several Assembly Members have suggested that the commissioner might concentrate on matters such as health education for mothers and environmental matters that might affect the health or well-being of unborn children. However, those are already the responsibility of a range of statutory authorities, including the Health Promotion Agency, the Food Standards Agency, and the health and social services boards and trusts. It is difficult to determine the additional value that the commissioner could bring to that type of function, which would require him or her to take on an additional cadre of staff with relevant expertise and experience. That would increase the operating budget of £2 million, about which the Committee is already concerned.
The third strand of the argument is that such an extension of remit would inevitably involve the commissioner in matters relating to the law on abortion, which is a difficult and extremely sensitive area. Indeed, it is so sensitive that the commissioner’s involvement in it might be to the exclusion of many other matters. As an official, it is not for me to comment on policy priorities, or, indeed, on what the commissioner’s priorities should be; the Committee will have its own views on that. However, the basket of responsibilities that has been suggested for the commissioner is already full. If this is added, something else might have to go.
Dr McDonnell: I concur with the advice that has been given. I feel strongly about abortion and related issues, but to confuse those would wreck the commissioner’s role. [Inaudible due to mobile phone interference].
That would cause mayhem, and the issues would become lost in each other. The Committee must be very careful. A plethora of organisations are involved in the health of children in utero. Dealing with those would mean adding another section to the Department of Health, Social Services and Public Safety, which would create another layer of bureaucracy.
I am keen for the commissioner to consider some of the matters that pertain to this issue. However, at this stage, to attempt to extend the commissioner’s remit would serve no one and would cause confusion.
Mr Shannon: Once the commissioner is in place, will he or she have the authority to extend the remit, or will the Committee or the Assembly have to consider that? If we do not extend the remit now, can we do so in future?
Dr McDonnell: The Committee would have to suggest amending the legislation. I have not expressed many strong views on this matter, but we should put something in place quickly because there is a gap in the legislation for children. I am not suggesting that the Committee ram the legislation through recklessly or inconclusively, but we must decide on the commissioner’s remit and get the legislation through as best we can. We can review it if necessary.
I am worried about creating a connection between the children’s commissioner and the emotion of the abortion issue, because it could bog the commissioner down with abortion issues. That would drag him or her away from the very matters that the debate has been about.
Dr Birnie: We must consider the extent to which legal devices exist to enable the commissioner to oversee the welfare of the child in utero. I accept that there may not be many such legal tools, but there are some. The courts have sometimes considered the destruction of an unborn child. Indeed, I think that there was such a case in Northern Ireland a couple of years ago. I understand Dr McDonnell’s point, but if what happens to the child before birth affects his or her welfare — and there is clear evidence of that — the commissioner, at least in principle, should also have some control over that.
Mr K Robinson: If a case were brought to the commissioner’s attention, would he or she not have the opportunity to take the next step? If necessary, that would lead to the legislation’s being amended. Does that follow the logic of your argument?
Dr Birnie: Why wait for a case to be brought to the commissioner’s attention?
Mr K Robinson: We might overload the legislation by adding such a power at this point. Furthermore, the commissioner’s remit will progress naturally. A case will be brought, and the commissioner will be asked to make a decision, which will result in his or her asking for amended or extended powers.
The Chairperson: We have the best opportunity to introduce that power to the legislation now. If it is ever to be done, now is the time to do it. During the Assembly debate, several Members mentioned the matter and expressed an interest in including the power in the legislation. My preference is to introduce that power now. However, it is essential that we consider the matter fully because an amendment may be tabled at Consideration Stage, and, if we do not introduce that power, we must have clear reasons for our decision. Mr Stewart, that must be raised with Ministers. You can detail the views that have been expressed and reinforce what was said in the Assembly.
Mr Stewart: I am happy to do that.
Clause 24 referred for further consideration.
Clause 25 (Interpretation: "relevant authority")
Mrs Stevens: Clause 25 defines the term "relevant authority", which is a fundamental concept in the Bill. It includes any authority that falls within the remit of the Assembly Ombudsman, thus covering all Departments. It also includes organisations that fall within the remit of the Commissioner for Complaints — in other words, statutory organisations and non-departmental public bodies.
The term "relevant authority" also covers bodies that are specifically listed in schedule 3, including several organisations in the health and education fields and some that deal with reserved matters such as justice and policing. Subsections 3 to 6 cover technical provisions, but subsection 7 ensures that the definition includes the constituent parts of any authority.
The Chairperson: That relates to the concerns that were raised about the term "independent provider" in clause 22.
Mrs Stevens: We will consider whether to extend the definition of "independent provider" to include those who operate outside the health field.
The Chairperson: Do refugee children and asylum- seekers fit into that definition?
Mr Stevens: Immigration and asylum-seeking are matters for the Home Office. As excepted matters, they will not be devolved to the Northern Ireland Administration.
The Chairperson: Does that mean that the children’s commissioner will not have any authority in that respect?
Mrs Stevens: The commissioner will have a role in the provision of the services that Departments provide to children who are seeking asylum — for example, housing, education and health services. That is the only area of policy-making on which our Administration can have an effect.
Dr McDonnell: However, if an asylum-seeker gave birth to a child here, the commissioner could look after that child — the child would be fully qualified, so to speak.
Mrs Stevens: I would have to check the legal status of that child to ascertain whether he or she would have residence in Northern Ireland.
Dr McDonnell: A few of my patients are children of asylum-seekers, so I think that they would qualify.
Clause 25 referred for further consideration.
Clause 26 (Interpretation: general)
Mr Stewart: Clause 26 includes provisions that are typically found towards the end of Bills. It sets out several definitions for the purposes of clarity, and I will draw a few of them to the Committee’s attention.
The Committee has already expressed concerns about the definition of "parent", and we will consider those and try to ensure that that definition covers anyone with parental responsibility, which itself must be defined.
The Chairperson: It was suggested that paragraph 2(b) should be dropped.
Mr Stewart: Paragraph 2(b) is little more than a statement of fact — it points out how the law operates in relation to that in the United Kingdom. When ratifying the United Nations Convention on the Rights of the Child, the UK made several reservations. Those excepted matters will be dealt with at Westminster. To be frank, removing or including paragraph 2(b) would not change how the law will operate in practice, but it is important to include it for clarification.
Clause 26 referred for further consideration.
Clause 27 (Commencement)
Mrs Stevens: Clause 27 provides for several of the Bill’s provisions to come into effect as soon as the Bill receives Royal Assent. Those provisions relate to the establishment of the office of the commissioner; funding and staffing arrangements; the interpretation provisions; and the commencement and short title provisions. The clause also allows for other provisions of the Bill to come into operation on such day or days as may be appointed by the Office of the First Minister and the Deputy First Minister through subordinate legislation.
Clause 27 referred for further consideration.
Clause 28 (Short title)
Mr Stewart: This simple clause provides for the short title.
Clause 28 referred for further consideration.
The Chairperson: It is essential that you get answers to the questions that have been asked last week and today.
Mr Stewart: We will expedite those for you. We had hoped to have at least some of those answers for you today, but we have been unable to do so because of the illness of one of the Ministers. We will send those as soon as possible to allow the Committee sufficient time to consider them before its next meeting.
The Chairperson: Thank you.