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 25 September 2002
MINUTES OF EVIDENCE
Commissioner for Children
and Young People Bill:
Committee Stage
(NIA 20/01)
Members present:
Mr Poots (Chairperson)
Mr Gibson (Deputy Chairperson)
Mr Beggs
Mrs E Bell
Dr Birnie
Ms Lewsley
Dr McDonnell
Mr McMenamin
Mr McNamee
Mr K Robinson
Witnesses:
Mrs H Stevens ) Office of the First Minister
Mr C Stewart ) and the Deputy First Minister
The Deputy Chairperson: This afternoon the Committee starts its clause-by-clause consideration of the Commissioner for Children and Young People Bill. I should like to welcome Mr Chris Stewart, head of community relations and rights in the Victims Unit, and Mrs Heather Stevens, head of the Children and Young People Unit, both of the Office of the First Minister and the Deputy First Minister (OFMDFM).
The Committee invited written submissions on the provisions of the Bill, and members have considered those. Over the past three weeks the Committee has listened to oral evidence on various aspects of the Bill from a range of organisations. Although the general provisions of the Bill have been overwhelmingly welcomed, several concerns have been raised about specific provisions, and amendments have been proposed to the Committee to improve the legislation. We discussed those concerns with OFMDFM officials at last week’s meeting, and they agreed to look at some of them.
A major area of concern relates to the commissioner’s ability to deal with complaints from children in the juvenile justice system. We have invited the NIO to give evidence to the Committee on that aspect of the Bill, and Committee staff are still pursuing that with NIO officials.
As we proceed through the clause-by-clause consideration, members will have the opportunity to raise concerns about the provisions or suggest amendments. They should read the relevant clause of the Bill with the related commentary that is in the explanatory and financial memorandum.
The Committee will have two options with regard to each clause: members can agree that the Committee is content with the clause as drafted or agree that the Committee recommends to the Assembly that the clause be amended.
If members feel that an amendment is required we can ask OFMDFM to reconsider the issue and return to it later. I shall ask Mr Stewart and Mrs Stevens to outline the provisions of each clause as we come to them, and members can seek clarification or propose amendments.
If the Committee cannot reach agreement on a particular clause or amendment, I suggest that those clauses or amendments be deferred for consideration.
Long title agreed to.
Mr Stewart: With your permission, Mr Chairman, we will alternate our discussion of the clauses.
We welcome the opportunity to work with the Committee in its detailed consideration of the Bill, and we hope that we will be able to agree on a series of amendments with the Committee. That being the case, OFMDFM will be happy to take those amendments forward through the Office of the Legislative Counsel. There may, of course, be other areas about which Ministers are unable to agree with the Committee, but, where possible, we would like to try to achieve consensus.
Clause 1 (The Commissioner for Children and Young People for Northern Ireland)
Mr Stewart: Clause 1 will establish the office of commissioner for children and young people in Northern Ireland. It activates, and must be read in conjunction with, the provisions in schedule 1 that deal with, for instance, the powers of the commissioner, financial matters, staffing matters and lines of accountability. Those provisions are relatively straightforward and standard in their application. However, I understand that the Committee has a number of concerns about the appointment process.
The Deputy Chairperson: The Committee had said that the recruitment process should be open, independent and transparent. Are you happy that those requirements are fully embodied in the Commissioner for Children Young People Bill?
Mr Stewart: I agree with the Committee’s intentions regarding the recruitment process, and I know that some non-governmental organisations (NGOs) suggested that a form of words including "open" and "transparent" be included in the clause. The Office of the First Minister and the Deputy First Minister has a number of difficulties with that amendment. Ministers are determined and committed that the appointment process will be entirely open, transparent and robust, but the insertion of those words into legislation would be unusual and highly novel. Legislative Counsel would have great difficulty putting in terms that are so ill-defined.
If it would be helpful, however, Ministers are prepared to write to the Committee setting out details of the intended appointment process. That will include the Office of the First Minister and the Deputy First Minister’s commitment to apply the standards relating to public appointments, the use of an independent external member in the appointment process and the role of children and young people in that process. The preferred approach would be for Ministers to write and seek the Committee’s views on its process, rather than to try to capture it in detail in the legislation because they may wish to consider making an appointment in shadow form before the legislation has completed its passage through the Assembly. There may be difficulties with that, and a balance must be struck between getting an appointment made early and not anticipating the will of the Assembly and the Committee in shaping the Bill. However, if the Bill were to specify in detail the appointment process, that possibility would be removed, and that would concern the Ministers.
Mr Beggs: The Committee should delay a decision on clause 1 until it receives that information from the Office of the First Minister and the Deputy First Minister.
The Deputy Chairperson: In other words, we park clause 1 to make sure that everyone is content with the letter from the Office of the First Minister and the Deputy First Minster with regard to the explanation and the methodology of appointment.
Mrs E Bell: I am heartened by Mr Stewart’s comments, because if the Committee does not get this right the rest of the legislation may not be so well received, or even implemented.
Clause 1 referred for further consideration.
The Deputy Chairperson: Before proceeding, I would like some guidance on definitions. Clause 24 contains the phrase "child or young person", clause 25 contains the term "relevant authority" and clause 26 refers to "general" terms. The same words are not always used. Is "child or young person" the term that will be repeated throughout the Bill? The term "relevant authority" needs to be more specific. I should like to hear your comments on that.
Mr Stewart: It is clear from the evidence that the Committee has received that it will seek several changes to the definitions, and we will be willing to consider those. From our own consideration of the Bill we feel that at least one or two definitions must be altered to ensure that we fully capture the policy intention behind the Bill.
If other issues arise during the discussion that make it clear that there are inexplicable variations in the language that is used, we will be more than happy to smooth those out. There is no hidden policy intention behind that. In some cases, differences reflect the advice of the Office of the Legislative Counsel, the role of which is to structure provisions properly. The differences might be accidental in other areas, and we would be happy to rectify that to avoid confusion and misunderstanding.
The Deputy Chairperson: Will the term "child or young person" be defined? It is defined in another piece of legislation.
Mrs Stevens: That definition is in clause 24.
The Deputy Chairperson: Is it set out in that clause?
Mrs Stevens: Yes.
Mr Stewart: There is a definition, and I am sure that members will want to raise specific points about that as we go through the clauses.
Ms Lewsley: I should like young people with disabilities aged up to 21 to be included.
Mr Stewart: The definition as it stands is, by and large, that of the UN Convention on the Rights of the Child, which defines a child or young person as someone up to the age of 18. There is an addition to that, which is already in the Bill, to include children leaving care up to the age of 21.
At this stage, Ministers will be likely to resist the member’s suggestion for that further addition. We recognise that young people in their early 20s with disabilities have unique and special needs, as do those in their early 20s who have left the care system. The difference is that young people from the care system have specific needs arising from the nature of their childhood. They especially need additional assistance and coverage as they move from childhood to maturity.
By contrast, young people with disabilities have special needs that arise, by and large, from their disability, which will, unfortunately, be with them for life. They too need special assistance and greater recognition. However, that requires a different set of skills and competences that we have not planned to include in the commissioner for children and young people’s remit. That sits more naturally with the Northern Ireland Human Rights Commission and with health and social services organisations. Including that suggestion, thereby asking the commissioner for children and young people to accept that responsibility, would run the risk of overloading what is already a complex and heavily loaded set of powers and functions.
Ministers will want to consider closely the Committee’s views, but they would not be disposed to accepting that amendment.
Ms Lewsley: Key issues have been raised, particularly in the Assembly, about the difficulties involved with placing those leaving education at the age of 19 either into day care or into employment and learning. Therefore the problem lies not with the disability but with the provisions that are offered. The situation is exactly the same for any young person who comes out of care. There is an argument for both sides.
Mr Stewart: I accept the validity of your point. Nevertheless, while some of the core issues are the same for both groups of young people, the skills and competences that are required and the understanding of the issues are different for each group. The commissioner for children and young people would need further skills and competences to deal with that problem. Therefore there is a danger of overloading the role.
The Deputy Chairperson: Are you content with that?
Ms Lewsley: It does not stop me putting down an amendment.
The Deputy Chairperson: It does not arise until clause 24, and we have a great deal of work to do before that.
The term "relative authority" is referred to in clause 25. I am highlighting these terms so that as we go through the Bill and those terms come up, we will know what we are talking about.
Mrs Stewart: The term "relative authority" is one of the key definitions because it unlocks the powers of the commissioner with regard to how his or her investigation and complaints handling functions will work in practice.
There are three main limbs to the definition of "relative authority". We began by conceiving "relative authority" within the definition of section 75 of the Northern Ireland Act 1998. However, during our negotiations with the Office of the Legislative Counsel we were advised that a better way to move forward would be to break that down and to spell out the different limbs. There are all the bodies listed in schedule 2 to the Commissioner for Complaints legislation, and that deals with bodies such as district councils and the various non-departmental public bodies (NDPBs) that people can complain about to the Commissioner for Complaints. It also refers to the bodies listed in schedule 2 of the Ombudsman (Northern Ireland) Order 1996, and that encapsulates all of the Northern Ireland Departments.
Then there are the bodies and people specifically listed in schedule 3 to this legislation. That includes bodies or individuals who would come within the definition of section 75 of the Northern Ireland Act 1998 by virtue of designation orders that have been made by the Secretary of State. They are broken down into two sections. Part 1 of schedule 3 lists the organisations in the health and social services and education fields that are the responsibility of the devolved Administration. Part II deals with bodies in justice and policing and other areas that remain the responsibility of the Northern Ireland Office. Depending on which provision of the Bill is referred to — for example, in relation to formal investigations — some of the powers are available in relation to all the relevant authorities listed, and some are available in a more limited capacity in relation to those bodies that are listed in part II of schedule 3 to this Bill.
That is not the only opportunity to catch bodies or authorities that we want to bring within the commissioner’s purview. Clause 25 provides that OFMDFM can, by subordinate legislation, amend the schedule to move bodies between parts, to remove bodies or to add bodies if necessary.
The Deputy Chairperson: The terms referred to in clause 26 such as "advocacy arrangements" and "complaint arrangements" are the normal list of terms legally used, and they contain nothing new or obscure.
Mrs Stewart: I would draw the Committee’s attention to a few terms. For example, "action" includes failure to act. When the provisions of the Bill are read it should be borne in mind that failure to act is already included in the legislation. Also, we are minded to make amendments to the definition of "independent provider" as that may not go wide enough as it is under the Bill, and we would like to widen the definition of "parent" to include, in addition to guardians, anyone with parental responsibility for a child.
The Deputy Chairperson: Does it already include guardians?
Mrs Stewart: Yes, guardians are already included.
Mr K Robinson: On the topic of parental responsibilities, how definitive is that? Does it include the rights of grandparents when they are acting, for whatever reason, in the place of a parent either temporarily or more permanently?
Mrs Stevens: There is a definition of parental responsibility in the Children (Northern Ireland) Order 1995. We would propose to adopt that legal definition.
Mrs E Bell: That still pertains in this case?
Mrs Stevens: Yes.
Mr Stewart: I want to draw to the Committee’s attention the definition of advocacy arrangements in clause 26 and the items that follow. The Department may want to reconsider the inclusion of inspection arrangements. Colleagues in the Department of Education and the Department of Health, Social Services and Public Safety drew to our attention some unintentional effects of the clause in which the definition appears. We may have to consider that again. We have not reached a definitive view, but it would be unfair not to advise the Committee at this stage that we may want to recast that particular clause.
Mrs E Bell: What were you referring to, Mr Stewart?
Mr Stewart: It is inspection arrangements, which are included here. The definition is in clause 26. Inspection arrangements are presently included in clauses 5 and 6. It is a fundamental difficulty that we have come up with, and we may need to rethink whether that should continue to be included in clauses 5 and 6. As currently drafted, those clauses would give the commissioner unintended overlap with the Social Services Inspectorate and the Education and Training Inspectorate. We must reconsider that.
Mrs E Bell: We want clarity to ensure that whoever is using the legislation is clear what is happening. That would be useful.
The Deputy Chairperson: Mr Stewart, will you come back to us if there is a proposed change?
Mr Stewart: We will.
The Deputy Chairperson: We are content to leave those general terms. We have the right idea now. We will now continue the clause-by–clause scrutiny.
Clause 2 (Principal aim of the Commissioner)
Mrs Stevens: Clause 2 is also an important provision at the beginning of the Bill because it sets out the commissioner’s aims from the outset. It sets out the main aim as:
"to safeguard and promote the rights and best interests of children and young persons."The term "rights" has deliberately not been defined in the Bill because that will allow, for example, if rights are enshrined in a bill of rights, for that to be automatically brought within the definition without further amendment having to be made to the legislation. However, without definition, the term "rights" means all those rights that are recognised within the domestic law of Northern Ireland.
The clause then sets out several guiding principles for the commissioner to follow. For example, it makes clear that in deciding whether, or how, to act in respect of a particular child, the best interests of that child are to be the commissioner’s main consideration. It also provides that the commissioner must have regard to the child’s views and give them weight depending on the child’s age and understanding. It requires the commissioner to have regard to the role of parents in the exercise of his function. It also provides that the commissioner must specifically take into account the rights that are enshrined in the UN Convention on the Rights of the Child.
The Deputy Chairperson: We originally raised several issues, including the word "principal" in subsection 1 and the use of "rights" rather than "rights and best interests".
Mrs Stevens: The word "principal" in this context is recognition of the fact that the commissioner will have other aims. For example, he will aim to comply with other international standards, to raise awareness of himself and to comply with the various other statutory duties that a public office holder will have. It is simply a recognition that there may be other aims, but that this is the commissioner’s principal or main aim.
Mr K Robinson: Before we consider subsection 2, is it possible now to investigate the substitution or addition of the words "responsibilities" and "welfare" of the child, which seem to encompass more than simply "rights" and "best interests"?
Mrs Stevens: The term "best interests" would be considered to be inclusive of such terms as welfare, because it is a broad phrase. The concept of children having responsibility would have to be considered.
Mr K Robinson: Is it not the case that after a certain age, children have responsibilities in law?
Mrs Stevens: That is the case.
Mr K Robinson: Has that been taken into account?
The Deputy Chairperson: Our suggestion was that we should incorporate the phrase "rights and best interests".
Mr Stewart: As the clause is currently drafted, it would be technically difficult to include the word "responsibilities". The Bill states that the commissioner’s function is
"to safeguard and promote the rights and best interests of children and young persons."It would be hard to envisage the commissioner having a function to safeguard and promote responsibilities of children and young persons. That would be a difficult concept.
Mr K Robinson: We are considering the child to be a live, whole person who is not just the recipient of protection issues, but who also has responsibility in the implementation of protection issues. That aspect does not seem to be covered.
Mr Stewart: I appreciate the thrust of your suggestion. However, is clause 2 the right one to accommodate it? Throughout clause 2 there is recognition that the commissioner must take account of a number of things — for example, the UN Convention on the Rights of the Child and the importance of the role of parents. It might be easier technically to include the commissioner’s recognition of the child’s responsibilities in another part of the clause.
Mr Beggs: I support Mr Robinson’s suggestion. In order to achieve a better society, we have to teach both adults and children that with rights go responsibilities. I am content to move on, but reserve the right to come back to this subject, if a suitable point for inserting it elsewhere is not found.
The Deputy Chairperson: We will come back to that issue.
Ms Lewsley: I assumed that today’s hearing was for the Committee to raise some of its concerns to the Department and for the Department then to consider what it can do. Mr Beggs and others raised the question of inserting a clause into the Bill on the issue of responsibilities. If the Department cannot comply with that request, we have to decide what our course of action is. The first step is to see what the Department’s view is on the matter.
Mrs E Bell: Will we find as we go through the clauses that there will be a more appropriate place for insertion of such a phrase?
Mr Stewart: That may be. However, one place for such an insertion that suggests itself to me is clause 2(3) rather than clause 2(2). I say that without prejudice, as it may be technically difficult to insert it there. The Minister may have views on the matter. We will be happy to take the matter back to the Department for consideration and come back to the Committee.
The Deputy Chairperson: That is fine. There are also issues in that clause that we raised with the NIO. It is dealing with the international human rights standards and the role of parents.
The Committee Clerk: We are dealing with those issues today.
The Deputy Chairperson: Clause 2(3) states that
"In determining whether and, if so, how to exercise his functions under this Act, the Commissioner shall have regard to — (a) the importance of the role of parents in the upbringing and development of their children; and (b) any relevant provisions of the United Nations Convention on the Rights of the Child."We have raised issues about that clause with the NIO.
Dr Birnie: I favour amending clause 2(3)(a) so that "the importance of the role of parents" is changed to "the importance of the rights, responsibilities and role of parents".
The Deputy Chairperson: You suggest combining rights, responsibilities and role?
Dr Birnie: Yes.
Mrs Stevens: The Department will consider that amendment. Will the Committee clarify the member’s point about "best interests"? Is the Committee satisfied that "best interests" encompasses welfare for the purpose of the provision?
The Deputy Chairperson: If I remember correctly, it was agreed that welfare is well embodied in "best interests".
Dr Birnie: I am not convinced about that. I see no harm in including "welfare" in addition to "best interests". I understand that "welfare" is used in legislation in the Republic of Ireland. Is that correct?
Mrs Stevens: It is used instead of "best interests".
Dr Birnie: Why? Is the reason significant to us?
The Deputy Chairperson: Is there a difference in the legal stance?
Mrs Stevens: The term "welfare" is the one most commonly used in statute law. That is the draftsman’s view, because "welfare" is understood in statute law. Using "best interests" is a new departure.
Mr Stewart: The potential danger of including both terms is that, in the future, a court may have cause to wonder what the difference between them might be. Last week the UK delegation to the UN Committee on the Rights of the Child made it clear that Westminster considers the meanings of the two terms to be inseparable. The Department has not taken that view. It agreed with the Committee that the term "best interests" is broader and includes welfare.
The Deputy Chairperson: Are there any other questions about that definition?
Dr Birnie: That information raises more questions. If the term "welfare" is generally used, and is better understood by the draftsmen, I am not happy about using a new term.
The Deputy Chairperson: If statutory legislation uses "welfare", why did the Department make that change?
Mrs Stevens: It is true that most established legislation uses the term "welfare", but "best interests" is not unheard of in domestic law. It features, albeit in a minor way, in the Children (Northern Ireland) Order 1995. The Department adopted it for this legislation because it reflects the fact that the Bill is a rights-driven policy initiative. Ministers thought it appropriate to reflect, wherever possible, the language that is used in the most relevant international statute, the UN Convention on the Rights of the Child, which refers to "best interests" throughout. The exceptions to that, particularly clauses 10 and 11, give the commissioner a role in relation to the existing body of statute law. Therefore, those clauses refer to "welfare" rather than "best interests". In other instances the term "interest" is used rather than "best interests", for grammatical reasons and on technical advice from the Office of the Legislative Counsel.
The Deputy Chairperson: Is the member content?
Dr Birnie: No. I want to maintain my position on that issue.
Mrs E Bell: No matter how clause 2(3)(a) is worded, is the Committee content that the importance of the role of parents does not conflict with the development of the child’s rights. Is it clear that the parents’ role does not undermine the rights of the child in any way?
Mrs Stevens: The provision in clause 2(2)(a) ensures that the rights of children will not be undermined. The commissioner’s main consideration will always be the child.
Mrs E Bell: I understand that, but I am worried about the role of parents. Clause 2(3)(a) states that the commissioner shall have regard to
"the importance of the role of parents in the upbringing and development of their children".Are you happy that it is clear that the rights of the child must still be taken into account, even if they differ from the rights of parents?
Mr Stewart: Yes. I emphasise that we do not see the commissioner’s role as changing the legal rights or responsibilities of parents. This provision was inserted to make it absolutely clear that, in discharging his or her functions, the commissioner cannot, and must not, ignore the role of parents in raising their children.
Mr McMenamin: The issue of welfare can be a minefield. Subsection (3)(a) deals with the importance of the role of parents in the upbringing and development of their children. How is the word "welfare" defined? Some families are living on the breadline. Other families are wealthy and can provide adequately for their children. Does the word "welfare" have the same meaning with regard to both families? Does that consideration have to be brought into the equation?
Mr Stewart: The terms "best interests" and "welfare" are intrinsically broad. My understanding of the term "welfare", which is defined by statute and by a body of case law built up over years, is that it encompasses more than the physical safety and health of a child. The definition would include factors such as the standard of living.
The Deputy Chairperson: The Committee will wait to hear from officials on several matters with regard to this clause, so we will return to it at a later date.
Clause 2 referred for further consideration.
Clause 3 (Duties of the Commissioner)
Mr Stewart: Clause 2 set out what might best be described as the operating principles for the commissioner. Clause 3 sets out in detail some of the commissioner’s functions, including the commissioner’s five principal duties. These focus on promoting and understanding awareness of the rights and best interests of children; reviewing the adequacy and effectiveness of law and practice; reviewing the adequacy and effectiveness of services; providing advice on a range of matters; and ensuring that children and young people are aware of the commissioner’s functions, and can access and contact him or her. The commissioner must also communicate effectively with children.
This is an important clause. It is wide-ranging, and one of its most significant features is that, as these functions are considered to be very important, the responsibilities are expressed as duties of the commissioner, and not merely as powers. The commissioner will be required to carry out these functions — they are not optional extras.
The Deputy Chairperson: Will Members keep their questions brief, or we will never get through the Bill.
Ms Lewsley: I know that, to an extent, section 75 of the Northern Ireland Act 1998 provides for child-proofing, but is it possible to include that in clause 3 or clause 4?
Mr Stewart: It would be possible. Several non-governmental organisations suggested specific amendments, such as imposing a duty on Departments, and possibly other authorities, to refer legislation to the commissioner in draft form.
Our Ministers believe that it is important to child-proof legislation. However, they would prefer to see it done within the context of section 75 of the Northern Ireland Act 1998 rather than introducing another specific duty in the Bill, as has been suggested. Ministers will no doubt want to consider the views of the Committee on that point.
Mr Beggs: I do not exactly know what is meant by child-proofing. However, I note that clause 3(4) says that
"The Commissioner shall advise the Secretary of State, the Executive Committee of the Assembly and a relevant authority on matters concerning the rights or best interests of children and young persons —as soon as reasonably practicable after receipt of a request for advice: and
on such other occasions as the Commisioner thinks appropriate."
Can the commissioner make comment to the Executive or the Secretary of State on any aspect of new legislation where appropriate? My mind goes back to comments made by the Welsh Commissioner. He did not seek that power, because he felt that he needed to be flexible in determining what percentage of his budget would be used on examining legislation and how much would be used on other matters. We will be allocating a limited budget of £2 million, which is significantly more than is allocated in Wales. I am concerned that it will be used to employ people to study a range of legislation that may not be significant. I am opposed to the suggestion.
(The Chairperson in the Chair)
Mr Stewart: We agree with Mr Beggs about the importance of flexibility. We had intended to embody flexibility in that particular provision, both to allow the commissioner to offer advice, unbidden or not, and to allow the Executive to seek advice from the commissioner when appropriate. That is something, if the Assembly were so minded, that could be addressed in Standing Orders. The Assembly could decide on a particular procedure to allow it, or a Committee scrutinising legislation, to seek advice from the commissioner in specific circumstances.
Mr Beggs: Does the Bill allow the commissioner to comment on any proposed legislation?
Mr Stewart: Yes.
Mrs E Bell: There is nothing in clause 3(4) that says what happens to the commissioner’s advice in the Assembly. Are you happy that regard would be taken of that advice? There is no intent to instruct the Assembly to act on that advice. It all sounds wonderful, but what will the Assembly do with that advice?
Mr Stewart: We are content with that as it stands. I understand the point that you are making. The intention is that the commissioner’s office will be a high-profile body. If the commissioner were successful in establishing his credibility and reputation for offering sound advice, it would be a brave public authority that would dismiss those lightly. In relation to the Assembly, it would be an unusual provision in which the Assembly sought to bind itself to take unspecified action on recommendations. The Assembly might have concerns about that.
Mrs E Bell: I would not suggest that. However, if the commissioner feels that the Assembly must be informed, I would like to think that he would be confident of being listened to.
The Chairperson: Do members have any comments on the proposal to insert the word "adults" into clause 3(5)(a)?
Mrs Stevens: That particular provision contains specific duties that relate purely to the commissioner’s interaction with children and young people. If we are to extend that duty to adults, it should be done in a different place in the legislation and retain the emphasis in clause 3 on the commissioner’s interaction with children and young people.
The Chairperson: Previously, there was a concern that adults could not lodge complaints with the children’s commissioner. However, that was clarified and cleared up. Nevertheless, we want adults to be as aware of the role of the commissioner as children and young people. In some instances adults who feel it is appropriate to act on behalf of a child or give advice to a child or young person should use the commissioner’s office as required.
Mr K Robinson: Would it be possible to incorporate another subsection later in the legislation, so that there is parental input with regard to the exercise of the commissioner’s functions? The child is the centre of the issue; however, I am concerned that the parent or guardian is being pushed further to the periphery at a vital point in a child’s life.
Mr Stewart: Those are two distinct points, and the first is easier to answer.
First, we would be prepared to consider the scope for including a provision in the Bill to ensure that the commissioner’s activities are publicised to adults, especially parents, as well as children. That will not be problematic.
Secondly, we have sought to address the concerns raised by the member with the provisions in clause 2(3)(a) about the commissioner having due regard to
"the importance of the role of parents".However, to go beyond that, and introduce a right for parents to be consulted, or perhaps give parents some sort of veto over the commissioner’s exercise of a function would detract from the thrust of the policy proposal, which is to establish a powerful, independent advocate responding directly to concerns raised by children or adults on their behalf. That is something Ministers would have difficulty with.
Mr K Robinson: I would not like to go down that road. However, I do not want to see the role of parents marginalised, so that they are not able to make a prescriptive, positive input into the proceedings.
Ms Lewsley: I understand Mr Robinson’s point. However, the Bill is about children, and if we decide that it is more about parents, then we need to start over. I remember from the evidence sessions, particularly from the Parents Advice Centre and the Children’s Commissioner for Wales, it was said that conflict was rare with regard to parents and their input into investigations.
The Chairperson: A lot depends on who takes up the office. If it is someone who is controversial, then we may run into difficulties. How do you intend to get the views of children and young people?
Mrs Stevens: It is at the commissioner’s discretion to put mechanisms in place to ensure that he fulfils the duties that we propose.
The Chairperson: Do you not see parents as key players? The commissioner should take on board their views. We do not want to shackle the commissioner or make the job difficult. Nonetheless, parents have an essential contribution to the welfare of their children. Some 95% of parents make a valuable contribution to the welfare of their children and ensure that their best interests are looked after. It would be wrong to leave the Bill in such a way that we cannot take any account of parents’ views. Some cognisance should be taken of their opinions.
Mr Beggs: The thrust of the Bill is about the best interests and protection of the young person. However, would it be a problem to insert a clause that allows us to take the views of parents concerning the exercise of the commissioner’s functions?
Mrs Stevens: Do you envisage that there will be a power or a duty on the commissioner to do that?
Mr Beggs: Subsection (5) would, therefore, state that the commissioner should take reasonable steps to ensure that the views of parents are sought concerning the exercise by the commissioner of his functions.
Mrs Stevens: That is a duty.
The Chairperson: It could easily be changed by inserting the words, "children, young persons and parents" in subsection (5)(d).
Mr Stewart: That would be a crucial distinction. Does the member refer to the exercise of general functions or those regarding specific children?
The Chairperson: The member refers to general functions.
Mr Stewart: The matter of specific children would be much more problematic.
Mr Beggs: I refer to a means of getting feedback generally from parents on the commissioner’s exercise of his functions, on whether adults are content that things are going well and that children are being protected, or on whether there is concern about the way that the commissioner is developing his role.
Mrs E Bell: My concern is that the parents may be part of their problem — for example, a child may go to the commissioner concerning a problem in the home. Parents should have general involvement. I have no problem with that. However, I am wary of making it the commissioner’s duty to inform parents. There is a problem with that because it might militate against what the child needs.
Mrs Stevens: Perhaps a discretionary power would be better than a duty.
Mrs E Bell: A discretionary power would be better because the commissioner would therefore decide whether certain cases warranted contact or dealings with parents, and only then would he choose to inform them. Initially, however, parents could harm a situation. That is why I believe that although parents should be involved, that involvement should be general.
Mr McMenamin: There could also be a scenario where there are two children in one household.
Mrs E Bell: Yes, there is that too. If a child’s problem comes from within the home, I would be concerned about there being a duty to let parents know.
The Chairperson: We are not referring to specific cases.
Mr K Robinson: If a parent is seen and heard by the commissioner, he can very quickly form a view of the positive or negative role that that parent plays.
Mr Stewart: Often, in individual cases, the parent might come forward on the child’s behalf.
The Chairperson: Absolutely.
Mr Stewart: In any individual case that the commissioner deals with he must make a judgement quickly as to whether to involve the parents. Provided that we do not do down the road of a veto, as Mr Robinson has assured me he will not, then the general point that Mr Beggs made about a provision to ensure that parents, who are an important constituency in society and the people who have most involvement in protecting children’s rights, have their views sought by the Commissioner is a perfectly reasonably aspiration. We will consider whether that can be incorporated.
The Chairperson: Would it be appropriate to incorporate that here as a duty of the commissioner, or would it be more appropriately placed somewhere else?
Mrs Stevens: It would be appropriate to insert that if it is a general matter. It would probably need a separate provision. I do not believe that it sits neatly with subsection (5)(d), because that refers to children and young people.
Mr Beggs: I would prefer a separate provision, so that there would be a clear distinction between the two areas and no confusion.
The Chairperson: Are there any further comments, because clause 3 must be considered further when the Department comes back with the form of words we discussed?
Dr Birnie: To repeat what was said with regard to clause 2, some members would like consideration to be given to adding "responsibilities, best interests and welfare" where "right and best interests", or, indeed, "rights and welfare" appear. I accept the point about the particular cases of children and parents, some of which is covered in clause 17, which refers to circumstances in which the commissioner felt it would not be appropriate to inform parents.
Mr Stewart: Clause 17 deals specifically with powers of entry.
The Chairperson: What is your viewpoint on the word "responsibilities"? I know that the NIO has specific problems with regard to the word "rights".
Mr Stewart: We need to seek detailed advice and come back to the Committee on that matter. It raises several issues, not least the technical drafting that would be needed to incorporate that in the Bill.
Clause 3 referred for further consideration.
Clause 4 (General powers of the Commissioner)
Mrs Stevens: While clause 3 deals with mandatory duties, clause 4 is more permissive and sets out the general powers that the commissioner may use. It lists six different areas in which the commissioner could take action — for example, the commissioner could undertake or commission research or educational activities concerning the rights or best interests of children and issue guidance on best practice in relation to matters concerning the rights and best interests of children and young persons. It would also allow the commissioner to conduct a general informal investigation in relation to any of the commissioner’s functions. There would be no associated procedures or set formal powers in connection with such an investigation.
The provision would also give the commissioner the power to conduct investigations into the adequacy and effectiveness of law policy and practice in relation to the rights and welfare of children and the services provided by relevant authorities. The procedures for that type of investigation are specified in schedule 2 of the Bill, but there would be no associated formal powers of entry or compulsion of evidence. The provision would also give the commissioner the power to compile and publish information on matters involving children and to make representations or recommendations to anybody about the rights or best interests of children and young persons. For example, the commissioner could make representations to a private company or business or any organisation that is not defined as a relevant authority, but he would have no associated formal powers of entry or compulsion of evidence.
The Chairperson: The Committee made a couple of suggestions during earlier meetings, one being that subsection (1) should include a provision that relates to consultation and promotional activities.
Mrs Stevens: We have no difficulty with extending that subsection to include that. The provision in the Bill reflects the provision in the Northern Ireland Act 1998 that refers to the powers of the Northern Ireland Human Rights Commission.
The Chairperson: It was also suggested that the wording in subsection (2) is too broad and should be tightened up.
Mrs Stevens: I welcome any suggestions from Members on how that could be achieved. Subsection (2) would allow the commissioner to issue guidance, but only after consultation with other bodies that may be well placed to give advice — thus, the guidance would be the best available. The provision would not prevent another body issuing guidance, if it felt that that was appropriate.
The Chairperson: One of the submissions suggested that the onus should be on the bodies that issue guidance to consult the commissioner and that provision should be made for that in the Bill. Perhaps we could leave that with you, and you could get back to us on the matter.
Mr Stewart: That would be a fairly heavyweight provision. It would impose a specific duty on all public authorities, and I think that Ministers would resist that. Although they recognise the importance of child-proofing, they would prefer it to be dealt with through existing statutory provisions rather than introduce further statutory duties, such as the one that has been suggested.
The Chairperson: The words "responsibility", "rights" and so on would probably have come up in previous issues, so when that has been dealt with fully, we can deal with the clause.
Mrs E Bell: The commissioner will issue guidelines on best practice. He will do that following consultation that will enable him to have the best expertise and knowledge available to issue best practice. The commissioner should have the benefit and use of civil society organisations, et cetera.
Mr Stewart: That is exactly the intention — to ensure that the commissioner does not unnecessarily duplicate or issue guidance which is not informed by best practice that may be developed elsewhere.
Mrs E Bell: The commissioner will also help to form partnerships.
Mr Stewart: Yes, very much so.
Clause 4 referred for further consideration.
Clause 5 (General review of advocacy, complaint, inspection and whistle-blowing arrangements of relevant authorities)
Mr Stewart: The bad news is that we have reached the last of the easy clauses, and now we are moving into the more difficult ones. This is possibly the most technically difficult and complex clause in the Bill, but it is also one of the most important. It needs to be considered along with clause 6 and, to a lesser extent, clauses 7 and 8. Clauses 5 and 6 constitute the core of the ombudsman functions that are proposed for the commissioner. Clause 5 deals with general reviews of different types of arrangements, such as advocacy, complaint, inspection and whistle-blowing arrangements. However, clause 6 focuses on the application of those arrangements in individual cases.
The purpose of reviews or monitoring is to enable the commissioner to determine whether and to what extent arrangements have been effective in promoting and safeguarding the rights and best interests of children. However, OFMDFM felt that it was important that a reasonable grounds test be introduced to the provisions that must be satisfied before the commissioner can act. That means that the commissioner cannot engage in fishing expeditions without satisfying a reasonable grounds test and without the commissioner feeling that he needs to act.
The remainder of the clause and associated definitions deal with the application of those provisions. The term "relevant authority" is defined in clause 25. Schedule 3 is significant because the clause is applicable in different ways depending on whether the body in question is within the transferred field or the reserved field. A different type of investigation could be used in those two cases. Mrs Stevens outlined the different types of investigations and described the previous clause briefly for those bodies that are within the transferred field. The full range of the commissioner’s powers in relation to formal investigations could be used, but, for those bodies that are still in the reserved or accepted field, the intermediate form of formal investigation with fewer formal powers could be used. That compromise came about as a result of negotiations with the Northern Ireland Office.
The Chairperson: One of the issues that was raised was the definition of relevant authority in clause 25(1). How do you define that?
Mr Stewart: This was touched on briefly in previous discussions on the definition in that clause, and we have agreed to examine that again. Our intention was that the definition of the term "relevant authority" should be as broad and all encompassing as possible, and, where gaps have been identified, some suggestions have been made.
Ms Lewsley: If the commissioner were carrying out an investigation, would the anonymity of the child be protected?
Mr Stewart: There are two points here which run into each other. Some non-governmental organisations have raised questions of terminology about whether references should be to "child" or to "a group of children" at various places throughout the Bill. Our interpretation of the advice from the Office of the Legislative Counsel is that the Bill is at present correctly worded to allow the commissioner to act for a child or for a number of children who may come to him.
The separate but related issue of what the commissioner can do for children who might wish to remain anonymous is difficult. The commissioner could certainly provide advice, guidance, help and assistance in an informal way to children who wish to remain anonymous. However, it would be extremely difficult to allow the commissioner to act using his formal powers in relation to anonymous children. We have not reached clauses 10 and 11, but if the commissioner were to attempt to initiate legal proceedings regarding something alleged to have happened to a child who was not to be identified, we could fall foul of court procedures. Indeed, the European Convention on Human Rights might be called into play in such a case.
We see that as a difficulty, and we are minded to resist suggestions from some non-governmental organisations that class actions be allowed in relation to anonymous groups of children. That would raise considerable legal difficulties.
Mrs Stevens: In relation to anonymous tip-offs, that could be enough to satisfy the "reasonable grounds" test under clause 5(3). That gives the commissioner a sense that something is happening in an organisation of which he would want to conduct a general review. The implication of that is that the commissioner has full powers of investigation in relation to those authorities that operate in the transferred field. He could use powers of entry in relation to social services, for example. However, if the case related to juvenile justice, the commissioner could not use formal powers, though he could still conduct a general review of arrangements on the basis of an anonymous tip-off, for want of a better word.
Mr Stewart: That is an important point. The "reasonable grounds" test is not uncommon in legislation. It is not precisely defined; it would, in effect, be defined by case law or, indeed, by the courts in specific cases. We have chosen it since it does not represent an unreasonable barrier to be overcome. As Mrs Stevens said, if the commissioner received a serious, albeit anonymous complaint, he or she would be duty-bound to take any action possible.
The Chairperson: There is an issue about inserting the word "rights" into clause 5(1)(a)(i) so that it would read "to represent the views, wishes, needs, rights and interests of children or young persons". I am not sure whether the Northern Ireland Office has any objections to that. It is slightly different from the debate over "best interests" and "welfare".
Mr Stewart: We could consider that one, subject to advice from the Office of the Legislative Counsel about whether it would be grammatically correct to insert it into the clause in that way. We understand the thrust of the suggestion, and, if it is possible to do, so we shall accommodate that.
The Chairperson: In clause 5(1)(b) the words "or on behalf of" could be inserted between "by" and "children".
Mr Stewart: We quite agree with that suggestion. We are grateful for its having been pointed out. That was an unintentional effect of the way that provision was drafted. We should be happy to correct that as suggested.
The Chairperson: Our concern with clause 5(1)(c)(iii) is about the interpretation of "other services".
Mrs Stevens: That phrase gives maximum flexibility to the commissioner to examine any of the services provided by any of the relevant authorities. In some ways the definition of "other services" is contained by the definition of what is a relevant authority. It is, in effect, any service which can be provided by any of the bodies listed.
The Chairperson: So a local council providing a leisure centre service would fall under that.
Mrs Stevens: That is included because it comes under the Commissioner for Complaints (Northern Ireland) Order 1996.
The Chairperson: Some concerned was expressed about the "reasonable grounds" test in subsection (3).
Mr K Robinson: Before moving on to that, clause 5(d)(iv) mentions the rights of any child. Can the magic words "responsibilities, best interests and welfare" be inserted after "rights"?
Mr Stewart: We must look carefully at that. The word "responsibilities" would not fit terribly neatly into that construction.
Mr K Robinson: Can you investigate the possibility of inserting the other words?
Mr Stewart: We will certainly investigate that. I could suggest inserting the words "best interests", but the legislative counsel might argue that almost anything could be argued to be a potential infringement of a child’s best interests. Rights are much easier to interpret and the test is much easier to satisfy. We will consider the point about language, which has been raised on this clause and several others. However, we will want detailed advice from legislative counsel on that.
Mr K Robinson: "Welfare" would, presumably, fall into the second definition.
Mr Stewart: We said earlier that we saw welfare as being a component of best interests. Therefore, if the term "best interests" was included, it would follow that welfare was included. However, the inclusion of "best interests" may be problematic.
The Chairperson: Subsection 3 concerns the reasonable grounds test. Some concern has been expressed as to the meaning of "reasonable grounds". Is it difficult to define?
Mr Stewart: Yes. Indeed, it is deliberately not defined. It is a phrase that is not uncommon in legislation. Courts are well used to, and familiar with, the whole concept of reasonableness. The reasonableness test is likely to be added to, or the interpretation changed, by case law, because courts are increasingly considering the jurisprudence from Strasbourg in relation to the European Convention on Human Rights and other international rights standards, where the concept of proportionality is also being introduced to augment the concept of reasonableness.
Our intention was to leave the subsection as flexible as possible to deal with, for example, a situation where the commissioner receives an anonymous complaint, as mentioned earlier. It would be difficult to come up with a precise legal definition, and it would be likely to involve a higher threshold than reasonableness. For example, some might argue that it might be necessary for the commissioner to have prima facie evidence that rights had been breached. That almost introduces a test that would require the commissioner to carry out an investigation before he could be satisfied that it was proper to launch an investigation. Therefore, there would be a circular definition that would be very difficult to apply in practice. The current proposal is the correct one. It allows for a degree of flexibility but is not a term that the courts are unused to dealing with.
The Chairperson: Do members have any comments? The question of rights and responsibilities will arise again, so we will deal with it when we receive responses next week.
Clause 5 referred for further consideration.
Clause 6 (Review of advocacy, complaint, inspection and whistle-blowing arrangements of relevent authorities in individual cases)
Mrs Stevens: Clause 6 is a natural progression from clause 5. It relates to the commissioner’s power to review the arrangements that have been defined in clause 5, but in relation to individual cases. Again, a reasonable grounds test must be satisfied. The important point to emphasise is that the commissioner’s formal powers of investigation can apply regardless of which relevant authority is being reviewed.
The Chairperson: Do members have any issues to raise? We should clear them all next week when we receive responses on several of the issues, rather than just clearing one or two now.
Dr Birnie: Is this clause where the so-called class action comes up? Is there any further advice on that?
Mr Stewart: It would be relevant to this clause, as it was to clause 5. We see the suggestion made by some non-governmental organisations as problematic, especially in relation to this clause, where it would be important for the commissioner to be acting in relation to identifiable cases.
Mr Beggs: Does that relate to human rights law or European law? How have you arrived at that view?
Mrs Stevens: It relates to both. An individual case must be identified and the body must produce papers before there can be a review into the way it has been handled. I do not think it can be done.
Mr Stewart: If, at the conclusion of such an investigation, the commissioner found something that was sub-standard, a recommendation could be included that the authority concerned should reinvestigate any similar cases, or the application of arrangements could be looked at again. That would not require individual children to come forward.
Clause 6 referred for further consideration.
Clause 7 (Assistance with complaints to relevent authorities)
Mr Stewart: Clause 7 is an extremely important and significant clause and should be read in conjunction with clause 8. However, clause 7 is much more important. Clause 8 will rarely be used, if at all, and clause 7 will be part of the bread-and-butter of the commissioner’s role. It sets out significant powers for the commissioner to assist the child in making a complaint against a relevant authority. That would include acting on behalf of the child in making a complaint and acting in any investigation or other proceedings conducted by that authority following the complaint. However, there is an important safeguard. The commissioner may only assist or act on behalf of the child if there is no other body or person likely to do so. That is to ensure that the commissioner does not duplicate the role of other authorities.
There are concerns about that part of the provision, and about the clause generally, and I will set out how we see that operating in practice.
Ministers have, from the outset, made clear their intention that the commissioner should not duplicate or overlap with other public authorities and in a few cases would be the complaints investigator of first resort. The commissioner’s role would be to ensure that systems are in place and applied properly and to provide assistance to children availing of the systems in place. That is why the provision has been included. It has been described as a hand-holding function. The commissioner would not — as has been suggested — be at the end of a long queue and difficult for children to avail of, and children should not find themselves reluctant to come forward.
When the Norwegian children’s commissioner spoke to the Committee he was proud of the fact that 95% — or a similarly high figure — of Norwegian children knew his name. We have a similar ambition for our commissioner. He or she should have a very high profile and be recognisable and identifiable by children and young people. Therefore, instead of being at the end of the queue, the commissioner would often be the first port of call for a child or young person who wished to make a complaint. However, in most of those cases the commissioner would not investigate the complaint himself or herself. Rather, he or she would assist the child or young person to have a complaint investigated by the appropriate authority.
Ms Lewsley: We are worried that the child would go to the commissioner in the first instance and that the commissioner would say that he or she could not take the case on because the child would have to go through the appropriate procedures. The young person or parent would then go away worried, get bogged down with bureaucracy and forget about the problem. That child’s problem would not be addressed.
Is there any procedure in clauses 5 and 6 whereby the commissioner’s office could say that a child has come to it and it could not deal with it? The Children’s Commissioner for Wales said that he would not look at such a case but would rather ensure that the young person or parent went through the correct procedure. Could we have someone in that office who would ensure that those people got the opportunity to go through the procedure and monitor them in case they dropped out for some reason, be that bureaucracy or red tape? They could then be brought back in. Could the commissioner intervene halfway through the procedure if a person thought that he or she was not getting fair treatment?
Mr Stewart: That is exactly how we see clause 7 operating. The commissioner will not be able to receive a complaint and then say that it is for someone else to deal with. It is expected that the commissioner will provide advice, assistance and guidance and will continue to monitor the investigation of a complaint or the operation of other arrangements as they progress. If, subsequently, the child or young person feels that the complaint has not been properly investigated, clause 6 comes into play, and the commissioner can carry out a review of how the complaint was investigated.
Mr Beggs: It does not appear to me that clause 7(3) will deliver what you are talking about. It says that
"The commissioner shall not provide any assistance to a child or young person under subsection (1) unless it appears to the commissioner that there is no other person or body likely to provide such assistance."
Why can we not have something that will stipulate, not that he is carrying out an investigation, but simply that he is providing advice to fill in a formal complaint form, and, subsequently, if necessary, shadowing it? I agree with the concept of avoiding duplication, but I am concerned that the wording will mean that it will not work in practice. Have I interpreted that incorrectly? As Ms Lewsley said, a child might have agonised over a complaint, eventually found the right telephone number and then been told to call another number. Children might not follow the signposts. Why can some advice not be given? I am concerned that it will not work in practice.
Mr Stewart: I appreciate your concern. We could put that beyond doubt by inserting additional wording such as "unless it would be unreasonable to do so". It would have to be something that ensured that the commissioner did not unreasonably refuse to provide the basic type of assistance that you are talking about.
The Chairperson: Would the wording "better placed to provide" instead of the words "likely to provide" be more suitable?
Mr Stewart: We have heard that suggestion from several non-governmental organisations. Unfortunately, my interpretation of it is that the effect would be the opposite of what was intended. To replace "likely" with "better placed" could lead to a situation where public authorities argued amongst themselves as to which was better placed to provide assistance. The "likely" test is much more straightforward. If no one is likely or prepared to come forward and act, then the commissioner will do so.
The Chairperson: There is a concern that the commissioner will be the last resort for young people who have a problem. Could the phrase "no other person" include parents?
Mr Stewart: Yes.
Dr Birnie: I wish to make a drafting point about subsections 7(3) and 7(4). As they stand, you are placing the burden of proof on the commissioner to demonstrate that no other person or body is likely to provide such assistance. Would there not be a case for reversing the burden of proof, so that the clause read:
"The commissioner shall provide any assistance …unless it appears that there is no other person or body likely to provide such assistance."
Mr Stewart: There would be no policy objection to that, subject to advice from the legislative counsel. We can consider that. I am not certain that it would have any practical effect. It might, nevertheless, send an important signal, and it is something that we can examine.
The Chairperson: It would be positive rather than negative.
Ms Lewsley: I am not sure if it is clause 7 or clause 8 that deals with whether the commissioner will say that it is another statutory agency’s job to investigate something before he or she will intervene. What happens with regard to access to statutory complaints systems? For example, an education and library board may be denied the opportunity to request papers. In such circumstances, can a commissioner be brought in to use his or her powers to access those papers?
Mr Stewart: The provisions could not be operated in that way. A complaint must be investigated through the relevant statutory complaints system. If the public authority felt that it was being obstructed in some way, it could use its own powers, whatever those might be, to obtain the papers.
Ms Lewsley: What happens if it did not have those powers?
Mr Stewart: The commissioner would make recommendations to improve a complaints system if he felt that an organisation was being hampered by a lack of sufficient powers. The commissioner might then wish to recommend changes to the legislation to the appropriate Department. The powers that the Bill will confer on the commissioner mean that, where a complaint is concerned, he cannot act in default of an existing statutory authority.
Mr K Robinson: Why has the word "best" been omitted from clause 7(1)(b)? Is a particular point being made?
Mr Stewart: Yes. That very specific point was made on the advice of legislative counsel. His view was that in that instance the idea of best interests would set a standard of perfection that was so high that it could not be reached. Alternatively, in this case the standard could be so low that it would always be reached, in that almost anything is arguably below a child’s very best interests. It is a technical and grammatical point; there is certainly no great policy intention behind it.
Mr K Robinson: Why has the word "or" been used as a conjunction between clause 7 (1)(a) and 7(1)(b)?
Mrs Stevens: To give an alternative. The commissioner can act if the child’s rights or interests have been infringed.
Clause 7 referred for further consideration.
Clause 8 (Investigation of complaints against relevant authorities)
Clause 8 sets out the commissioner’s power to investigate complaints are made against relevant authorities. In that instance, he acts purely as an ombudsman. The commissioner can investigate a relevant authority in cases in which a child makes a complaint to the effect that his rights have been infringed or interests adversely affected. Again, the term "interests" has been used with the same technical care that was used in the writing of clause 7.
Clause 8(2) tightly circumscribes the commissioner’s power. The complaint must raise a question of principle, and it must fall outside existing statutory complaints systems. Ministers felt very strongly that to do otherwise would result in unnecessary duplication. The commissioner has to use his resources in the best way possible, and this clause will enable him to do that.
Subsection 3 defines exactly "statutory complaints system". Subsection 4 allows the commissioner to let people know if he has decided not to conduct an investigation.
The Chairperson: Concerns have been raised in the Committee that clause 8(1) puts the onus on a child or young person to make a complaint. However, clause 24(3) enables a parent or any other person acting on behalf of the child to make a complaint. Indeed, section 37(2) of the Interpretation Act (Northern Ireland) 1954 enables words in the singular to be interpreted as including the plural. Therefore, under this clause, children or young people can make complaints.
Mrs Stevens: It is appropriate that the complainant should be the child or young person, or someone acting on his behalf. If the Norwegian experience is anything to go by, the parents or other people acting on the child’s behalf will mostly bring matters to the commissioner’s attention that cannot be dealt with in any other way or under any other system.
The Chairperson: Does that include any other person acting on his behalf?
Mrs Stevens: That is already included by virtue of the interpretation clause, clause 24.
The Chairperson: So we do not need to include it in clause 8?
Mrs Stevens: No, the draftsman would not advise including such matters or definitions twice.
Mr McNamee: It was suggested by two different bodies that both clause 8(2)(a) and clause 8(2)(b) should be deleted, not leaving any of clause 8(2) behind. The complaint about clause 8(2)(a) is on the issue of "principle". It was pointed out that that could lead to potentially unnecessary argument about the definition of "principle". How do you define whether something is "a question of principle"? The commissioner could be challenged on that issue when exercising his powers. It would not necessarily be effective in enabling the commissioner to exercise his powers.
It was also felt that clause 8(2)(b) restricted the opportunities that a commissioner would have to exercise his powers. If a complaint falls within a statutory complaints system, which has been utilised and has failed, does this clause then prevent the commissioner from taking any action on that complaint? Does the fact that the complaint brought to the commissioner falls within an existing statutory complaints system — although that statutory complaints system may have failed to resolve the issue — subsequently stop the commissioner exercising his powers?
Mrs Stevens: No, the commissioner can then act under clause 5, in that he can review how that complaints system works. If it did not serve the child or young person well, the commissioner can make recommendations to the body about that. As part of his recommendation, he can invite the authority to look at the particular complaint again and to consider it afresh. The commissioner cannot take upon himself the role of that authority and make the determination on the particular case. He must always refer it back to the original authority for a fresh determination.
Mr Stewart: Without that qualification, you could have two different bodies — the commissioner and another body — investigating the same matter. We are keen to avoid that.
Ms Lewsley: You spoke about that earlier in dealing with another clause, particularly with regard to social services and the Education and Training Inspectorate. I assume that those two Ministers were —
Mrs Stevens: Yes.
Mr Stewart: They made their views known. At the risk of repeating myself, I want to emphasise that clause 8 is only a "belt and braces" provision. It is there to take account of an as yet unforeseen situation where some matter arises that falls entirely outside existing complaints systems. We cannot presently think of a concrete example of that, so it is there for a purely hypothetical situation to ensure that a child’s complaint is not left entirely uninvestigated.
The Chairperson: Do members have any further comments? There was a suggestion that under subsection 4, a copy of the statement should also be sent to the relevant authority. It talks about sending it to
"the complainant; and … such other persons (if any) as the Commissioner considers appropriate."
It has been suggested that relevant authorities should also be included.
Mrs Stevens: We can certainly consider that. Our reading of it is that the relevant authority would be included under clause 8(4)(b). However, we can bring that to the draftsman’s attention and take his advice.
Clause 8 referred for further consideration.
Clause 9 (Actions which may be investigated: restrictions and exclusions)
Mr Stewart: Clause 9 is a complex, technical clause. It brings together a range of safeguards, checks and balances on the carrying out of investigations by the commissioner. It provides that he shall not conduct an investigation into any matter where the complainant has or had a right of appeal, complaint, reference or review to a tribunal or court or remedy by way of court proceedings unless the commissioner is satisfied that it would not have been reasonable to expect the complainant to have resorted to that remedy. The point of the clause is to ensure that the commissioner does not become inappropriately involved in existing statutory proceedings. The provisions are very similar to those in the Commissioner for Complaints (Northern Ireland) Order 1996, and for the most part they are a direct lift from that legislation.
The Chairperson: There has been a lot of concern about subsections 1 and 2 of clause 9. It has been said that they are restrictive and that the exclusions in the clause are excessive, particularly in those subsections.
Mr Stewart: They are restrictive, but they are balanced by the provision that, if it is unreasonable to expect a complainant to avail of a particular alternative remedy, then the commissioner may, notwithstanding the existence of that alternative provision, carry out an investigation. We were mindful of the concern that the provision would otherwise be overly restrictive.
Mr Beggs: Although the commissioner would not be able to carry out an investigation if one was currently being carried out by a relevant authority under clause 7, would he be able to advise the young person on his complaint with the relevant authority?
Mr Stewart: Yes.
Mr K Robinson: Clause 9(3) mentions "local or public inquiry". The term "public inquiry" is self-substantiating. What is the definition of "local inquiry"? Would it be an inquiry triggered by one of the statutory agencies?
Mrs Stevens: There is a definition for "local inquiry".
Clause 9 referred for further consideration.
Clause 10 (Power to bring, intervene in or assist in legal proceedings)
Clause 11 (Assistance in relation to legal proceedings)
Clauses 10 and 11 relate to the commissioner’s powers in relation to legal proceedings. Clause 10 refers to the commissioner’s powers to bring, assist or intervene in legal proceedings. It also gives him power to bring civil proceedings in relation to law or practice relating to the rights or welfare of children. The term "welfare" has been used deliberately, because it refers to an existing body of law in this instance.
The commissioner, in order to exercise these powers, must be satisfied that the case is a question of principle or that there are special circumstances that make it appropriate for him to become involved. An example of that would be that there was nobody else who could do it.
The power is also subject to a general requirement enshrined in the Human Rights Act 1998 that, if legal proceedings are going to be brought against a public authority involving a breach of the European Convention on Human Rights, then there must be a victim — someone who has been affected and whose rights have been infringed. We cannot override the provisions of the Human Rights Act 1998, because it is an entrenched provision under the Northern Ireland Act 1998. For that reason, the commissioner will not be able to bring proceedings in hypothetical cases.
The clause also includes a provision to prevent the commissioner from exercising powers in relation to a matter that he has already formally investigated. This has been incorporated so that there is no conflict of interest between his acting as a partisan body on behalf of a child and as a neutral third-party ombudsman.
The Chairperson: It has been suggested that the word "other" be dropped from clause 10(3)(b).
Mrs Stevens: There is no important policy intention behind the word "other". The word acknowledges the fact that a question of principle is a special circumstance that would warrant the commissioner’s involvement. We have no difficulty, if the Committee feels strongly that the word should be removed.
The Chairperson: I am not sure whether the Committee feels strongly about it, but the point has been raised and I just wanted to get some clarification.
Mr Stewart: It reflects the precision of our legislative counsel, rather than any policy intention.
The Chairperson: There have been references to potential conflict between the advocacy and ombudsman roles, and several groups have called for subsections 10(4) and 10(5) to be deleted. I understand that you are not in a position to respond because it is a Northern Ireland Office matter.
Mrs Stevens: There is merit in ensuring that safeguards are in place to make sure that the commissioner does not act as ombudsman and advocate in the same case, as that would involve a conflict of interest. In any case, the NIO has said that it requires those provisions to be included.
Ms Lewsley: It is an NIO matter; however, its officials have not seen fit to grace us with their presence.
Mr Beggs: Yet.
Ms Lewsley: Would the Office of the First Minister and the Deputy First Minister be able to speak to them? For example, if the commissioner is involved in investigating an organisation, such as a children’s home, then he has no power to insist that that organisation do anything after the investigation, although he can make recommendations that they need to change x, y or z. If a child who has been in that home comes to him, why can the commissioner not act on behalf of that child? Part of that issue is that the commissioner could find evidence or information during the investigation. That would be controversial if he then acted on behalf of the child, because he would have got that information through the back door. However, is it not possible that he could go through the correct procedure of gleaning the same information if he acted on behalf of the child?
Mrs Stevens: That is correct, but it brings up a credibility issue for the commissioner. If he is to act as an ombudsman, the commissioner must be seen to be impartial. The relevant authorities will want to know that the commissioner will not use evidence, which he has obtained using his formal powers, against them in a different context.
Mr Stewart: That theme runs through several clauses of the Bill. In practice, it means that when confronted with a case, the commissioner must decide early whether to exercise his ombudsman functions or his advocacy functions. Difficulties would arise if an attempt were made to combine the two subsequently. We recognise the difficulties that that may cause in practice and the limitation that it imposes on the commissioner’s flexibility. Nevertheless, that has been drawn to our attention, initially by the NIO. On reflection, we recognised that the commissioner could run into difficulties with regard to natural justice and the application of the European Convention on Human Rights. For that reason, we thought it appropriate to include the provisions. Without them, the NIO would not have agreed to the inclusion of juvenile justice in the commissioner’s remit.
The Chairperson: What comments did the Northern Ireland Human Rights Commission make? Would it concur with your remarks?
Mr Stewart: I confess that, while I have received a copy of the Human Rights Commission’s submission to the Committee, I have not yet had a chance to study it.
Ms Lewsley: What happens if the commissioner has investigated an authority, and a young person asks him to take a case on that relates to that authority? Does the commissioner say no, because the organisation has already been investigated? There is no other relevant authority for that young person to go through.
Mr Stewart: That sort of case highlights the importance of the commissioner considering carefully, at an early stage, what the available remedies and procedures are. For example, if the commissioner felt that it could be investigated using a procedure that he felt was robust and effective and would deliver an appropriate remedy at the end, then that is probably the line that the commissioner would take. He would exercise his advocacy role in assisting the child through that procedure. However, if the commissioner felt that the case was an area that was not well regulated or where complaints systems were not particularly robust, he might decide to take the formal investigation route, if that was deemed to be more effective. It emphasises the importance of the commissioner making that decision early and considering the potential consequences.
Mrs Stevens: The Bill also empowers the commissioner to conduct an informal investigation first; that would help to inform him as to which avenue he wanted to pursue. Following an informal investigation where the Commissioner is not using his big formal powers, he can decide whether the case warrants a formal investigation or if it would be better to help the child pursue the case through the courts.
Mr Stewart: That is an important point. The commissioner does not have to make that decision at the first phone call; he or she may carry out certain inquiries to determine the appropriate course of action.
Mr Beggs: Clause 10(4) states that
"The Commissioner shall not bring or apply to intervene in any proceedings".
Does "apply to intervene in any proceedings" apply when the commissioner is providing assistance with complaints on hand-holding, guidance on making children aware of their rights and responsibilities or legal aid? Will the commissioner be allowed to guide any such child through other courses of action?
Mrs Stevens: Yes.
The Chairperson: I am not suggesting that the Northern Ireland Human Rights Commission is right and you are wrong, but you said that the removal of subsections 10(4) and 10(5) would conflict with the European Convention on Human Rights. Our submission from the Northern Ireland Human Rights Commission, dated 29 August 2002, states:
"We do not see any justification for the restrictions imposed by these sub-clauses on the powers of the Commissioner to bring proceedings or to apply to intervene in any proceedings. Just because the Commissioner may have already conducted an investigation into a case does not in any way mean that the Commissioner is an unsuitable person to take further steps. Indeed in many people’s eyes these are exactly the further steps which the Commissioner would be expected to be able to take if his or her investigation revealed matters that needed to be addressed by a court. The NIHRC can certainly bring proceedings or apply to intervene in proceedings even though they relate to a matter already investigated by the Commission. Of course the NIHRC does not have the same powers to compel the production of information as the Commissioner for Children and Young People will have, and therefore it is not as likely that the NIHRC will seek to use such information at a later date for the purposes of legal proceedings. But in legal proceedings information can in any event usually be obtained through applications for discovery, so we see no undue advantage in the Commissioner having access to that information prior to the proceedings beginning. Given the watchdog role of the Commissioner, it is reasonable to allow him or her to make use of information compulsorily required in later legal proceedings if he or she deems that to be necessary to protect the rights or best interests of children or young people. This is precisely what other watchdogs or inspectorates (such as DTI Inspectors) can do in different contexts."
The Northern Ireland Human Rights Commission recommends that those two subsections be deleted.
Mr Stewart: The legal advice received by the Office of the First Minister and the Deputy First Minister and the NIO is different, so I disagree with the commission on that point.
Mr Beggs: Mr Chairman, did the Committee receive other advice that differed from the Human Rights Commission? I thought it was questioning whether the Bill was competent, but we have legal advice to say that it is competent. That is another point of diversity of opinion in the legal profession.
Mr Stewart: The Northern Ireland Human Rights Commission is also of the view that the draft Bill is in breach of the UN Convention, and that is another point on which we forcibly disagree.
The Chairperson: I have given you the views of those who are supposed to be experts on human rights.
Mr Stewart: The Office of the First Minister and the Deputy First Minister will carefully consider the Human Rights Commission’s views.
The Chairperson: It has also been suggested that as there are no enforcement powers, there is no conflict between the advocacy and ombudsman roles.
Mr Stewart: It is true to say that there are no enforcement powers, but the difficulty centres round the potential application of article 6 of the European Convention on Human Rights, the right to a fair trial. While the commissioner does not have enforcement powers, he will have significant powers in relation to the discovery of documents and information. I am concerned that that may call into question the application of article 6.
Clause 11 is similar in many ways to clause 10. Clause 11 contains similar provisions to clause 10 as regards assistance in legal proceedings. The checks, balances and qualifications included in the clause are very similar to those in clause 10. Again, there are provisions requiring the commissioner to act either as advocate or ombudsman.
The Chairperson: Many of the issues that we have just discussed under clause 10 apply here. Subsection 2 is unclear: perhaps it could be looked at again. The Committee is also concerned about the appropriateness of subsection 7, which deals with the recovery of legal expenses.
Mr Stewart: We will examine the wording of subsection 2 to see if it can be improved. Advice from legislative counsel is that the provisions in subsection 7 are not unusual. They are discretionary. The commissioner may decide to recover expenses but is not obliged to do so.
The Chairperson: The provision would not be unusual when dealing with adults, but would it not be unusual in dealing with children, who have no source of income?
Mr Stewart: In that sense, I agree. However, the provision allows for a situation in which sums of money from another source may become available. For example, there may be a subsequent legal claim from which a source of income would follow. The provision ensures that the public purse is not subsidising a case that could be paid for privately.
Mr Beggs: Will the expenses go back to the commissioner? If not, where will they go?
Mr Stewart: Initially, the expenses will go to the commissioner, but it is dealt with by a provision in schedule 1, paragraph 10.
Mrs Stevens: There is flexibility within the provision. Paragraph 10 deals with funding for the commissioner’s office. Sub-paragraph 1 directs that the commissioner should pay any moneys received to the Office of the First Minister and the Deputy First Minister. Sub-paragraph 3 provides him with some discretion.
Clauses 10 and 11 referred for further consideration
Clause 12 (Formal investigations)
Clause 12 provides for the formal investigations that can be carried out by the commissioner. It will be for the commissioner to decide which investigations he wants to pursue in this way. Under clause 5 there are four instances where a formal investigation can be instigated: they are in relation to general reviews of advocacy, complaint, inspection or whistle-blowing arrangements, and only in relation to those relevant authorities that are devolved.
The commissioner can use a formal investigation into reviews of arrangements where they relate to individual cases, no matter if the authority is devolved or reserved. It can be used in relation to the power to investigate a complaint under clause 8. The provision sets out the technical procedures that must be followed — the sending of notices, terms of reference and giving those involved an opportunity to comment.
Mr K Robinson: As regards sending a notice, would this Committee, for instance, or OFMDFM, be included under the term "relevant authority" as of right, or would we have to add ourselves to clause 12(3)(b)? I am wondering about the status of this Committee and OFMDFM in being centrally involved. Would we receive a notice?
Mrs Stevens: No. As the clause is drafted, neither the Committee nor the Department would be notified of an investigation. The procedures in clause 12 have largely replicated those of the Children’s Commissioner for Wales, which do not provide for copies to be sent to the relevant Departments.
Mr K Robinson: Would there be any difficulty in notifying OFMDFM, or the Committee of the Centre, in such an instance, so that they also have a brief for overseeing the process?
Mr Stewart: There may be less difficulty in involving the Committee than OFMDFM. The latter might be seen to be compromising the commissioner’s independence, but the Committee might not.
Mr K Robinson: Will the Department seek clarification on that matter?
Mr Stewart: It will consider it and convey the Committee’s view to the Ministers.
The Chairperson: There was a concern that clause 12(1) excludes non-devolved bodies.
Mrs Stevens: The Department discussed that clause with the NIO, but it would not agree to general reviews being subject to formal investigations into authorities in the reserved fields.
The Chairperson: If someone in the juvenile justice system complains about problems there, the commissioner will not have the power to act on it?
Mrs Stevens: The commissioner will have the power to conduct an informal investigation under the procedures set out in schedule 2. The same terms of reference can be provided, notice can be given and recommendations can be made and recorded in the public register, but there are no powers of entry or compulsion of evidence.
The Chairperson: Therefore, it will be difficult for the commissioner to follow up a complaint, if there is a lack of corroboration.
Mr Stewart: That reflects a policy difference between OFMDFM and the NIO. The NIO felt that the proposed powers were disproportionate to the matters under consideration. The Department disagreed, and the clause is the result of a compromise.
Mr Beggs: The Committee wants to see an annual report from, and have a meeting with, the commissioner, so that such difficulties can be discussed. The Committee, in turn, might be able to take action on the need for greater powers of access. The Committee hopes that it will have the power to disclose that information and highlight the Bill’s failings. It might be able to seek future amendments to the NIO’s clause.
Mr Stewart: The Department envisages the Committee receiving annual reports from, and talking to, the commissioner about the exercise of his or her functions. OFMDFM would want to consult the Committee when it comes to review the Act and the commissioner’s powers.
The Chairperson: Clause 12(3)(b) states that the commissioner shall
"send notice of the proposed investigation and a copy of the terms of reference to the relevant authority concerned;"
The Committee feels that "and the complainant" should be added after "concerned".
Mrs Stevens: The Department will take that good point on board.
The Chairperson: Concern has been expressed that, according to clause 12(5), all formal investigations must be in private.
Mrs Stevens: That reflects similar provisions in the Commissioner for Complaints (Northern Ireland) Order 1996. Since the commissioner will be discussing complaints with children, the Department felt that he will want investigations to be conducted in private.
The Chairperson: If a group of children made a complaint against an authority, would a private hearing be to their benefit? A public investigation might be more effective. The Committee is concerned that the subsection is restrictive in that all cases must be conducted in private, even when privacy may not be necessary.
Mrs Stevens: There is a difference between how the investigation is conducted and the outcome. There is provision in the Bill for the commissioner’s report to be disseminated to whomever he or she thinks appropriate. It could be disseminated widely. However, the actual investigation might throw up issues that are private to the child, and it might not be in the child’s interest to have that information made public.
Mr Beggs: Is there anything to stop the commissioner providing the press with a copy of the formal investigation?
Mrs Stevens: There is nothing to stop him, if he sees fit to do that.
Mr K Robinson: With regard to clause 12(5), why is it necessary for the commissioner to determine whether legal representation is allowed?
Mrs Stevens: It is to provide a measure of informality. As with industrial tribunals, if people come under investigation their automatic response might be to have legal representation and advice. It was felt that that would be inappropriate in some cases and that the commissioner would be the best person to decide if the involvement of lawyers was appropriate.
Mr K Robinson: Does it infringe human rights or any of the articles of the European Convention?
Mrs Stevens: No.
Dr Birnie: That is surprising.
Mr Stewart: We received that interpretation and advice. Article 6 of the European Convention is relevant and deals with the right to a fair trial. The threshold is that article 6 is called into play if the procedure in question determines someone’s civil rights. This procedure of informal investigation, because it does not have a remedy or a power of compulsion at the end of it, does not determine someone’s civil rights; therefore, article 6 does not come into play. That contrasts with, for example, the commissioner’s involvement in legal proceedings, where there could be a remedy.
Dr Birnie: I understand.
The Chairperson: Let us move on to subsection 9 and the extent of the right of witnesses to cross-examine evidence. There is a suggestion that the same devices be given to the complainant.
Mrs Stevens: Subsection 10 gives the complainant that right. "Complainant" is defined in clause 26 as "the child or young person by whom the complaint was made".
The Chairperson: How far does that go in relation to cross-examination? Can solicitors cross-examine those who have made a complaint?
Mrs Stevens: The same opportunities are given, so the child will not be disadvantaged.
The Chairperson: Some children have already been cross-examined by barristers, who can, as we all know, twist things and confuse people who have their wits about them, never mind a child. There is concern that that might happen.
Mrs Stevens: In such a situation it will be for the commissioner to determine whether the child needs legal representation to redress the balance.
Mr Stewart: In general, it is preferable that such proceedings be conducted without extensive involvement of the legal profession. However, the provisions as drafted ensure that when the commissioner deems it appropriate for someone to be legally represented, the child — or anyone acting on the child’s behalf — will not be disadvantaged. There is no inequality of representation.
Mr Beggs: In respect of not allowing undue pressure to affect a child during cross-examination, what degree of protection is built into subsection 9(b)? Will a very capable barrister be allowed to cross-examine a child? A degree of cross-examination is appropriate, but how can we be assured that the balance is guaranteed?
Mrs Stevens: The running of, and the procedure for, formal investigations will be entirely up to the commissioner, whose principal aim will be to safeguard and promote the best interests of children.
Clause 12 referred for further consideration.
Clause 13 (Formal investigations: exclusions)
The Chairperson: Clause 13 is an NIO clause.
Mr Stewart: Our colleagues in the NIO would not thank me if I allowed clause 13 to be described as an "NIO clause". They might take issue with that. Clause 13 is the counterpart to the provisions in clauses 10 and 11 that require the commissioner to act either as ombudsman or advocate. It prevents the commissioner from carrying out a formal investigation into a matter in respect of which he or she has previously brought, intervened in or provided assistance with, legal proceedings. It ensures that there is no conflict between the exercise of the advocate and the ombudsman roles.
Clause 13 referred for further consideration.
Clause 14 (Report on formal investigation)
Mrs Stevens: Clause 14 specifies that, when the commissioner conducts a formal investigation, he shall distribute a report containing his recommendations to the relevant authorities and other appropriate organisations, which may include the press. A duty of confidentiality is included whereby the report must not identify a person by name or contain any details that would allow that to be done, unless the commissioner believes that it is necessary to do so. A duty is also imposed on the relevant authority to consider the commissioner’s recommendation and to determine what action, if any, it will take in response to that.
Mr Beggs: The commissioner’s report must ensure that lessons are learnt and it will create publicity, thus bringing about improvements and highlighting the commissioner’s role. However, if people are named in the report, its publication may be inhibited. Therefore, can the commissioner publish a briefer report that does not contain names, thus ensuring that lessons learnt by one organisation can be brought into the public domain? Although I respect the need for confidentiality, I am concerned that lessons learnt by one organisation might not become public because individuals had been named.
Mrs Stevens: The Bill contains nothing to prevent that.
Mr Stewart: The commissioner’s annual report may provide the vehicle for that suggestion.
Mr K Robinson: Clause 14(1)(a) refers to the "relevant authority". Can we be assured that the Committee will be considered relevant? That crops up again on page 11.
The Chairperson: Clause 14(4) states that
"A report under this section may include recommendations as to action to be taken by a relevant authority mentioned in the report".
It has been suggested that subsection 4 should end with the words: "and must state clearly the reasons for each recommendation."
Mr Stewart: That suggestion is reasonable.
Clause 14 referred for further consideration.
Clause 15 (Further action following report on formal investigation)
Mr Stewart: Clause 15 has been described as the "naming and shaming" provision. In essence, clause 15 is a simplified version of similar provisions in legislation for the Children’s Commissioner in Wales. It involves the issuing of a notice requiring an authority to provide, within three months of the date of the notice, information that will enable the commissioner to determine whether the authority has complied, or intends to comply, with the commissioner’s recommendation. There is a follow-up procedure to allow a further notice to be issued. There are provisions to allow the commissioner to publish the response, or details of an inadequate response or failure to respond on the part of the relevant authority. There are provisions to ensure that a register is kept of recommendations made, and actions taken, by relevant authorities in response to that.
The Chairperson: Clause 15(5) states that the commissioner shall maintain a register of "recommendations contained in reports" and "the results of any such action." If that is to be included in that clause, should it be added to others?
Mr Stewart: That seems reasonable for that provision.
Clause 15 referred for further consideration.
Clause 16 (Evidence in formal investigations)
Mrs Stevens: Clause 16 sets out the type of evidence or information to which the commissioner can have access for his formal investigation. The commissioner’s powers will be quite far-reaching. He will be able to require disclosure of any document and the attendance of witnesses at the High Court.
The Chairperson: A suggestion was made to the Committee that failure to provide information or documents should be considered a criminal offence.
Mrs Stevens: We consulted on whether obstruction of the commissioner should be considered to be a criminal offence, or actionable as contempt of court. The weight of response indicated that it should be considered to be contempt of court, and the Minister has accepted that.
Clause 16 referred for further consideration.
Clause 17 (Powers of entry and inspection for purposes of formal investigation)
Mr Stewart: Clause 17 sets out the commissioner’s powers of entry. This is a significant power to grant to any public authority, and, therefore, the clause makes clear provision for the circumstances in which it can be used. It can be used in relation to formal investigations only. The provisions make it clear that the power is in relation to clause 5, which concerns reviews of arrangements generally; clause 6, which concerns reviews of individual cases; and clause 8, which deals with the investigation of complaints.
The clause provides for the commissioner to examine premises, inspect records and interview employees or children on those premises. It contains the additional safeguard that the parent of a child or young person must be informed in each case of the commissioner’s intention to interview a child. It gives parents the right to be present at such interviews, unless it would not be in the child’s interests, would not be practicable or would be against the child’s express wishes. In such circumstances, the commissioner must have regard to the child’s age and understanding. This is a significant power, but it is appropriately balanced with checks and safeguards on its usage.
Mr K Robinson: With regard to those checks and safeguards, the clause states that the commissioner
"may, at any reasonable time, enter any premises".Should that not be subject to subsection 7, which states that the commissioner
"shall, if so required, produce some duly authenticated document showing his authority to exercise the power."?Does that need to be clarified?
Mr Stewart: Subsection 7 will be applicable to the clause in its entirety.
The Chairperson: With regard to subsection 7, where will the authenticated document come from? Normally, the power of entry would be authorised by a justice of the peace. In order to receive the document, would the commissioner have to indicate to a justice of the peace that he is conducting an investigation and that he has particular concerns and reasonable grounds for entry?
Mr Stewart: You are correct to say that, in many instances, such authorisation comes from a justice of the peace. That is the case where the enabling legislation specifically requires it. I will have to seek further legal advice on the matter and come back to the Committee.
The Chairperson: That would be appreciated, as the Bill is a bit woolly on the subject of powers that are being granted.
Mr Stewart: No doubt the Office of the Legislative Counsel had something in mind. Unfortunately, I am not aware of what it was.
Mr Beggs: In subsection 7, is the phrase "if so required" necessary? Should the evidence or information justifying the commissioner’s right to enter the premises not be presented automatically?
Mr Stewart: That would certainly be good practice. We can consult legislative counsel as to whether that is a standard provision. I have reason to believe that it is and that that is why it is included. There was certainly no policy intent on our part.
The Chairperson: In clause 17(1)(c), does the interpretation of "other services" include foster homes?
Mr Stewart: No. The provision that would exclude foster homes is found at subsection 8:
"Nothing in this section authorises the Commissioner to enter any premises (or any part of any premises) used wholly or mainly as a private dwelling."Therefore, foster homes will not be subject to the power of entry.
Dr Birnie: The interpretation of "other services" in that subsection was raised previously. Would or could that include leisure centres?
Mr Stewart: Yes.
Mr K Robinson: Is there a specific reason for the exclusion of foster homes — perhaps because of civil law?
Mr Stewart: The provision reflects a policy intention that the commissioner should only deal with relevant authorities and not become directly involved in family matters. A foster home is the child’s natural home.
The Chairperson: Does paragraph 2(d) exclude interviews with employees not present at the time or with voluntary workers?
Mr Stewart: On the latter point, we will look at and be happy to amend the definition of "employee" or "employment" to ensure that voluntary workers are included, as that was within the scope of our policy intention. Workers who are absent will not be covered by that provision, but could be covered or asked to provide evidence under clause 15.
Clause 17 referred for further consideration.
Clause 18 (Obstruction and contempt in relation to formal investigation)
Mrs Stevens: Clause 18 provides a sanction for obstruction of the commissioner in relation to his formal investigations and provides for the sanction of contempt of court, as opposed to a criminal offence, for the reasons outlined earlier.
The Chairperson: Have members any issues they wish to raise? There was a suggestion that these provisions should be extended to all investigations.
Mrs Stevens: That would be difficult, as the commissioner has no power to compel anyone to give him information during an informal investigation. Therefore, no sanction exists for non-compliance.
Mr Stewart: You could also run into European Convention difficulties there, as a court may regard that as disproportionate and an infringement of a number of rights.
Clause 18 referred for further consideration.
The Chairperson: I am conscious that we started at 11.00 am and that it is now 4.30 pm. We have reached the end of a group of clauses. If you want to start work on clause 19, I am happy to do so.
Mr K Robinson: I will have to withdraw shortly.
The Chairperson: If two or more Members are going to leave we should conclude now, rather than start a group and not be able to complete it.
Mr Beggs: The scrutiny of the Bill is very detailed, and we do not wish to miss anything. In this session alone we have been going since 2.00 pm, and I prefer to be fresh in dealing with a new group of clauses.
The Chairperson: We have made good progress, and I do not want to push things too far. We appreciate your help and will give you some breathing space.
18 September 2002 / Menu / 2 October 2002