Mr Poots (Chairperson)
Mr Gibson (Deputy Chairperson)
Dr Birnie
Mr Kennedy
Ms Lewsley
Dr McDonnell
Dr O’Hagan
Mr Shannon

Mr C Stewart ) Office of the First Minister
Mrs H Stevens ) and the Deputy First Minister

Over the past two weeks we have undertaken a scrutiny of the clauses in the Bill, and the Committee will now proceed to the formal clause-by-clause consideration. Departmental officials from the Office of the First Minister and the Deputy First Minister will answer any questions that may arise during that consideration, and I appreciate their attendance. Hansard will record the clause-by-clause scrutiny, and it will form part of the report of the Committee Stage of the Bill. I will guide the discussion as much as possible, but every member of the Committee must focus, because it is crunch time, and we must make decisions.

The Committee was content with clause 1 as drafted, subject to consideration of written confirmation from OFMDFM setting out its commitment to an independent, open and transparent appointment process. That should include details of the appointment process, including the appointment of an independent assessor, and the role of the young people.

I apologise that members have not yet received written confirmation from OFMDFM. The Ministers have signed the letter, and it will issue today. We trust that it will fully alleviate the Committee’s concerns. The letter will detail how we envisage the process to take place, and it will contain a clear commitment to an open and transparent process and detail the involvement of children and young people.

I would like clarification. You said that the process would include young people in one form or other. Will that be ongoing for every commissioner? For example, if the first commissioner stays in the post for three years, and the post is readvertised, will young people automatically be included? Is it in the legislation?

We do not intend to put it in the legislation. However, we will ensure the continued involvement of children and young people. We want to ask children and young people how they feel that that involvement should be taken forward in the future. As this is the first time, we have established a process and drawn up procedures. It is important that children and young people are able to shape that for future appointment processes.

The Children’s Commissioner for Wales said that two posts in the Department were reserved for young people. Is that a model of good practice that our commissioner would take?

It is our hope that the commissioner would employ young people in those posts. However, we will give the commissioner a budget, and he or she will decide who to employ, as we want the commissioner to be completely independent. That includes employing children and young people. That seems to be the best practice approach in Wales and Norway, and we hope that our commissioner will follow suit.

The Office of the First Minister and the Deputy First Minister agreed to consider the inclusion of the necessary provision whereby the commissioner recognises the responsibilities of children. Members also had concerns about the use of the word "rights" in clause 2(2)(a), and they wished to raise that with the NIO. There was a discussion on whether the term "best interests" embodied welfare, but a conclusion was not reached. In the absence of the opportunity to raise those concerns with the NIO, the Committee must now decide whether it wishes to propose any amendments to that subsection.

I think the NIO is refusing to talk to us, is that correct? Rather, they are not talking to us.

We are awaiting a further reply from the NIO, but, so far, it has not agreed to talk to the Committee.

The Office of the First Minister and the Deputy First Minister agreed to consider the suggestion that clause 2(3)(a) be changed to read:

"the importance of the rights, responsibilities and role of parents".

Members raised several points on that subsection. Ministers have agreed that there should be an amendment to clause 3, and a reference to parents should be inserted in clause 3(5)(a) and clause 3(5)(d).

At the previous evidence session, several members suggested that we needed to do something to ensure that the commissioner focused not only on children’s rights but on their responsibilities. Members suggested potential amendments on several points throughout the Bill. Ministers carefully considered those amendments, and they decided that it would be better to try to address the Committee’s concern with one overarching amendment rather than to try to amend the language in almost every clause, as would otherwise be necessary.

Unfortunately, I do not now have a precise form of words to suggest to the Committee. However, Ministers have agreed that they will introduce an amendment to clause 3 — probably at clause 3(1)(b) — which would introduce an additional statutory duty for the commissioner to promote a culture of respect for the rights of others. During discussions with members last week, it became clear that members were concerned that children and young people, in claiming their rights, also need to have regard for the rights of others. Ministers are happy to introduce an amendment that will place that as a statutory duty on the commissioner.

Are Members content that the amendment caters for the concerns that were raised at the last meeting, subject to seeing the actual wording of it?

I would like to return to clause 2(2)(a), because we did not reach a conclusion on it.

The Department and the Minister’s view is that the term "best interests" encompasses welfare. "Best interests" is a broader term, which includes the key dimensions of welfare.

That is my interpretation, but others may not agree.

I am not convinced. Having listened to evidence from other people who work in the sector, I still believe that the term "best interests" needs to be included, for there is a huge debate on the question. Legislation must be exact.

That is a slightly different point. Are you suggesting that "best interests" should be inserted in clause 2(2)(a) along with "rights"? We certainly see a distinction between the term "best interests" and the term "rights"; they are separate and distinct. I must advise the Committee that the Northern Ireland Office would strongly resist any attempt to insert "best interests" into clause 2(2)(a) — to the point where the Secretary of State would be unlikely to give his consent to the Bill.

That is down to us, members of the Committee.

Since we do not have the Northern Ireland Office here to tell us, may I ask on what grounds the Secretary of State would not consent to the Bill?

I shall attempt to explain the Northern Ireland Office’s position. The matter was the subject of many meetings, discussions and negotiations. The Northern Ireland Office was very concerned about the Commissioner having an overarching role as set out in clause 2, which would be based on the term "best interests". It was felt that it was inimical to the operation of the juvenile justice system, which works according to the different — we should say narrower — standard of "welfare". On those grounds, the Northern Ireland Office said that if we went for the term "best interests" at this point in the Bill, it would not be prepared to consent to the inclusion of the juvenile justice system within the commissioner’s remit.

Should I infer from your answer that the Northern Ireland Office would prefer lower standards in relation to the juvenile justice system?

The Northern Ireland Office holds to the view that the correct standard to operate in a juvenile system is that of "welfare". It also has a different concern about what we term the "paramountcy principle". The Northern Ireland Office recognises the need for the commissioner to operate a paramountcy principle, but takes the view that the juvenile justice system must also balance other considerations, notably the wider interests of society.

In trying to explain and clarify the Northern Ireland Office’s position, I am not in any way endorsing it on behalf of — [Laughter].

Let us say that we force the issue. Could the Northern Ireland Office really torpedo the Bill?

Yes. The Secretary of State must still give consent to the Bill at the Final Stage, and he could withhold that.

It may not happen, but there is an old story that, if you hit your head off a brick wall hard enough, it is not the wall that falls — not that I carry any brief for brick walls.

In clause 2(1), the phrase "rights and best interests" is mentioned for children and young persons, so why can it not be mentioned in 2(2)(a)?

The Northern Ireland Office’s concern is for "paramount consideration" and the term that accompanies it. It was happy to see us use the term "rights", but was concerned about "best interests" being the paramount consideration.

It is crunch time. Are we content to leave it, or do we wish to introduce an amendment?

I do not know if "content" is the right word.

We are between a rock and a hard place.

Yes. I have no sympathy for whoever they are at the NIO, but I do not want the Bill to peter out either.

We could write to the Northern Ireland Office, stating the issue that we have raised today. We have to let the clause go, but we still have concerns about the term "best interests" not being used and the possibility of our having a two-tier system in Northern Ireland.

If you feel that would clear our consciences, we can do that.

It means that we have voiced our opinion and said that we are not happy; we are not simply letting them off the hook.

We should also reflect that in the Committee’s report, to make it double-barrelled. Are members content with clause 2?

There are one or two other points in clause 2, as well as suggestions for changes to some of the other clauses. In clause 2(3)(a), which mentions

"the importance of the role of parents",

it was suggested that "primary carers" be inserted.

There is not always a nuclear family. That is one suggestion.

The Department considered that point carefully. It would be difficult to insert the term "primary carer", so we decided not to proceed with it. It is too broad a term. For example, if a child were in hospital, the primary carer would be his or her named nurse. However, the Department proposes to amend the definition of parent to include all those with parental responsibility, which may address the member’s point.

Another amendment suggests that a new clause 2(3)(c) would state that the commissioner, when exercising the functions, must have regard for

"any relevant provisions of international human rights instruments".

The Department considered that paragraph, but the Ministers decided not to proceed with that suggested amendment. The advice from legislative counsel was that clause 2(3)(b) should not be read as exclusive. It places an emphasis on the UN Convention on the Rights of the Child, but it does not preclude the commissioner from taking into account other relevant international standards.

Should that not be explicitly stated?

Ministers considered the point and decided not to include such an amendment.

As there are no further comments, is the Committee content with the clause, subject to seeing the wording on the points made?

Those of you who are carrying on a private conversation please concentrate on clause 3.

I was just talking to your colleague.

I was just being an old schoolmaster.

Are we reviewing the issues that we agreed last week? I apologise for my late arrival.

The Department is reporting back to the Committee — bringing back to us the considered opinions of the great and the good.

The Office of the First Minister and the Deputy First Minister agreed to consider the inclusion of a provision that would ensure that the commissioner’s activities are publicised to adults, particularly parents, and that their views are sought.

The Department agrees with the Committee’s suggestion and proposes amendments to clauses 3(5)(a) and 3(5)(d) to include specific references to parents.

Will the wording of those amendments be made available to the Committee?

Yes.

The Office of the First Minister and the Deputy First Minister was to consider the suggestion of substituting "responsibilities, best interests and welfare" for "rights and best interests" or "rights and welfare".

As I said, members suggested that sort of terminology for several clauses in the Bill. However, the Ministers considered the matter and thought that introducing a new statutory duty in clause 3, rather than tabling a series of amendments, would best address the issue.

In other words, an overarching clause will cover all of that?

Yes. It will be wrapped up in a new statutory duty, which will probably be inserted in clause 3(1)(b) in the Bill.

Is the Committee content with the clause as drafted?

I want to make sure that the amendments are included. I asked for several amendments to clause 3. The terminology was the same. It was "responsibilities, best interests and welfare", and in some of the other paragraphs it was "rights, responsibilities, best interests and welfare". Will that be put in?

Let me help you, Jim. Just before you arrived, Mr Stewart informed the Committee that the Department would insert an overarching statutory duty in clause 3(1)(b), rather than insert those phrases all the way through the Bill.

There is no sense in looking through the Bill if we are not absolutely sure.

That is a warning to the Committee; do not let the Bill go until members are content.

The Committee proposed that "responsibilities, best interests and welfare" be inserted after "rights" at clause 3(1)(a) and clause 3(1)(b), and "rights, responsibilities, best interests and welfare" be inserted in place of "best interests" at clause 3(1)(c). It also proposed that "rights, responsibilities, best interests and welfare" be inserted in place of "rights and welfare" at clause 3(2) and in place of "rights or best interests" at clause 3(4). I want to ensure that those amendments will be made.

Ministers have considered carefully the points raised about terminology in the Bill, and they are reluctant to depart from the current terminology — particularly in respect of best interests versus welfare. Ministers feel that "best interests" encompass "welfare" and they see it as unnecessary to have "best interests and welfare". One term commented on by the Committee but not covered by the Department was "responsibilities", and that will form the core of the new statutory duty in clause 3.

As was said earlier, we do not have a precise form of words available for the Committee today, but no doubt the Committee will want to see it before making up its mind. There will be a statutory duty placed on the commissioner to promote a culture of respect for the rights of others. It was clear from our discussions last week that that is what lay behind members’ concerns about responsibilities. The Committee was concerned that children and young people who claimed their rights did not do so to the detriment of the rights of others. That should be reflected in the commissioner’s role. I hope that when the Committee sees the form of words on that, their concerns will be addressed.

You have used the word "rights" in certain parts of the Bill, but the Committee has asked that it be used repetitively. I am not sure that I agree with you about "best interests" and "welfare". I believe that they define different sectors, and it would be appropriate to have both terms included.

Chairman, please clarify something for me. Is the Committee just considering what it wants included in the Bill today? Will departmental officials return to the Committee with other terminology for us to consider and on which to make a final decision, or is the Committee deciding today what is acceptable?

The Committee is waiting to see particular wording that might be included in clause 2. Now we are discussing the Committee’s concerns about wording in clause 3. Wording in clause 3(1)(b) has to be considered to ensure that it contains the overarching statement that is supposed to embody the concerns of Mr Shannon and other members.

So it would be fair to say that we will get a second go at it.

Yes, the Committee will get another bite at the cherry. We are agreeing in principle, but the Committee will want to see the final words.

In other words, if members are not happy with the Department’s interpretation, the Committee will have another opportunity to change them.

We are content to proceed until we see the final words.

I have three propositions, which are all interrelated. The first is that a provision be inserted that the Executive, Assembly and the Northern Ireland Office refer all proposed measures to the children’s commissioner in draft so that the commissioner may then advise; secondly, a new clause should be inserted to ensure that the Executive, the Assembly and the Northern Ireland Office receive any such advice and take it into account when considering a proposed measure; and thirdly, that the commissioner be given some duty to draft and operate a child protection policy.

The first two points are closely related, and the Department is not minded to bring forward amendments along those lines. Ministers recognise the importance of the childproofing function for legislation, but they do not propose to introduce a statutory duty on the commissioner to do that in the way suggested.

On the third point, it is accepted that the commissioner ought to operate a child protection policy. Again, it is not felt that that should be included in legislation.

Is there any reason why the childproofing element was not included?

Ministers would prefer to see the childproofing function carried out within the context of section 75 of the Northern Ireland Act 1998, rather than introducing new specific legislative provision for that.

How do you do that if children are not mentioned specifically in section 75?

Age is mentioned specifically in section 75.

I am trying to labour this meeting for as long as I can. We have asked for a new subsection to be inserted in clause 3, with the effect that parents’ views would be sought on the commissioner’s activities. Has that been included?

That was agreed. However, it will be inserted not as a new subsection but as references in 3(5)(a) and 3(5)(d).

Subject to seeing the new wording, are we content with clause 3?

The Office of the First and the Deputy First Minister agreed to consider extending subsection 1 to include the provision about consultation and promotional activities.

We considered that carefully. Ministers have decided that that would not be appropriate. That is based on advice from the Office of the Legislative Counsel (OLC), which pointed out that such an amendment would make the clause clash with the statutory duties in clause 3(1). Under clause 3(1), the commissioner would be under a statutory duty to carry out such functions. If we were then to also introduce a permissive power to do so in clause 4(1), that might be seen as somehow diluting the statutory duties and would be at odds with them.

I would like to check that. Clause 3(1) states that the commissioner "shall" promote, so I am inclined to agree with that response. Are there any other comments? If not, are we content with clause 4?

Sorry —

We are due to suspend next week.

I want to get as much done as possible before I leave.

He has to have the last word. [Laughter].

The terminology is similar to clause 3. I am happy to return to it; I just want to ensure that it is in relation to rights, responsibilities, best interests and welfare. Will you provide terminology for clause 4 that is similar to clause 3 so we can consider that?

The Ministers’ intention is that the statutory duty to be introduced to clause 3 will be of a pervasive nature. It will govern all the commissioner’s functions. It is not proposed that we would amend the terminology in successive clauses throughout the Bill.

In other words, clause 3(1)(b) would be the overarching one, which would catch every clause.

That would go into clauses 5, 6 and so on. OK.

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed to consider with the Office of the Legislative Counsel whether it would be appropriate to include the term "rights" in clause (5)(1)(a)(i).

Ministers have not yet made a final decision on that point. They have asked us to look again carefully with the Office of the Legislative Counsel about whether the effect of the term "rights" would be caught by the terminology already in the clause. There is some doubt over that, and we need some further advice from the Office of the Legislative Counsel. At this stage, it is likely that we will accept that suggestion.

It is likely?

Yes.

The Office of the First Minister and the Deputy First Minister agreed to amend 5(1)(b) to read "by or on behalf of children".

Yes. Ministers have accepted that.

The Office of the First Minister and the Deputy First Minister agreed to seek advice on whether 5(1)(d)(iv) could be expanded to include the term "welfare and responsibilities".

Having examined that very carefully, Ministers feel it is not appropriate to include either word. As we have mentioned several times, we believe that the concept of welfare is included in the term "best interests". The term "responsibilities" would also be grammatically incorrect if inserted into the clause at that point.

Are members content? Bear in mind that the Department will return to us on the question of including "rights". It has agreed to our suggestion on 5(1)(b).

There was also a suggestion that the word "information" be introduced into 5(1)(a)(ii)(A), and we have accepted that.

That is excellent. Is the Committee content with clause 5, subject to the points that remain outstanding?

No issues were raised regarding clause 6, a fact I find surprising.

Dr O’Hagan has found one.

It concerns expanding the term "child or young person" by inserting "or group of children or young persons" after it. I am thinking in particular of 6(1), 6(2)(a) and 6(2)(b).

We sought specific advice on that point from the OLC, who advised us that it was not necessary. The Interpretation Act (Northern Ireland) 1954 would come into play here, and the singular term would also cover the plural. Therefore, the clause as drafted would allow the commissioner to act on behalf of a group of children or young people. There are similar references in other parts in the Bill.

Are we content?

Sorry, Chairman. There is an amendment not requested by the Committee, which we nevertheless propose to introduce in relation to clause 6. I am sure that the Committee will agree. We shall introduce into clause 6 a provision similar or analogous to that in clause 5(4). That would bring clause 6 into play when there are no arrangements. We felt that that was inadvertently left out of clause 6. It is a minor technical amendment, and it will certainly not change the policy intention.

What would the wording be?

The wording will be exactly the same as that in 5(4).

There were concerns about the restrictions in subsection (3), and the Office of the First Minister and the Deputy First Minister was asked to reconsider the phrase

"shall not provide any assistance"

and also to consider the inclusion of a phrase such as

"unless it would be unreasonable to do so".

Ministers considered the Committee’s views very carefully, and it is proposed to make amendments to clause 7 which we hope will address the Committee’s concerns. Unfortunately I do not have a precise form of words available today, but two amendments will be made. First, the wording of 7(3) and 7(4) will be changed to make it clearer regarding how the Commissioner might operate. One form of words which has been suggested — I stress that it is not the final wording — is

"the Commissioner may provide assistance unless it appears that there is another person or body likely to provide such assistance".

The effect would be to change the default position from the Commissioner not acting to the Commissioner acting.

We shall also introduce another amendment to clarify that the Commissioner’s involvement with a child or young person could continue throughout the processing of the complaint and would not finish at the point where the complaint was made.

The proposal to express subsections (3) and (4) in a positive way has already been covered.

We shall do that. That amendment will not substantively affect the operation of the clause but will make clear that the expected default is that the Commissioner will act rather than not.

Is the Committee content to proceed, subject to the rewording of subsections (3) and (4)?

The Office of the First Minister and the Deputy First Minister agreed to consider the suggestion that a copy of the statement under subsection (4) should also be sent to the relevant authority.

Following consideration, Ministers concluded that it would not be wise to proceed along those lines. The commissioner would possibly have the discretion under the existing clause 8(4)(b) to send the report in that way. However, it was thought unwise to make that automatic. In some circumstances the commissioner may want to protect the identity of a child or young person who had complained, and would not feel it appropriate to notify the authority concerned. It is important to leave that matter to the commissioner’s discretion.

Before new issues are discussed, is the Committee content with that answer?

Several other issues arise. There is concern that the inclusion of "subject to sub-section 2 and section 9" in clause 8(1) would limit the commissioner’s discretion to investigate a complaint against a relevant authority. There has been a suggestion that those words be deleted.

The Ministers considered that very carefully; however, they take the view that the clause as drafted reflects the policy intention, which is that the commissioner would investigate very few complaints. The commissioner’s main role is seen as reviewing complaints that have been investigated and monitoring the operation of complaints procedures.

The same point arises in clause 8(2)(b) and clause 8(3). I assume that the same answer applies.

Yes.

In clause 8(1)(a), the last word "or" should be removed and replaced by the word "and", thus tying (a) and (b) together rather than separating them.

Such an amendment would have the reverse effect to that wanted by the member. It would require a complaint to involve both, and not either, of the elements. In that case, "or" is preferable.

Is the Committee content, bearing in mind that subsection (4) has not been finalised?

The Committee wishes to pursue its concerns about the restrictions in subsection (2) with the NIO. In the absence of an opportunity to raise those with the NIO, the Committee must decide if it wishes to propose any amendments to subsection (2). Moreover, the need for a definition of "local inquiry" was suggested.

The Ministers’ attention was drawn to the Committee’s concerns and to the fact that you had been unable to obtain an explanation from the NIO. The Ministers have asked us to write to the NIO to draw the Committee’s concerns to their attention. On the latter point, following advice from legislative counsel, we do not believe that it is necessary to include a definition of "local inquiry".

There is a concern that the current wording in clause 9(1) would mean that the commissioner is prohibited from investigating a complaint except in exceptional circumstances. An amendment has been suggested, namely, after "right or remedy", insert:

"where the commissioner is best placed to conduct such an investigation, or there are other exceptional circumstances, which make it appropriate to carry out such an investigation".

What is your opinion on that?

Such an amendment would be problematic in two ways, and that is why Ministers do not want to proceed with it. It is a standard provision, which reflects similar provisions in the Commissioner for Complaints legislation, and that is because those provisions deal with the ombudsman’s functions. The clause is not prohibitive in the way the member’s concerns indicate. The qualification is not "exceptional circumstances"; the wording is:

"unless the commissioner is satisfied that, in the particular circumstances, it is not reasonable to expect the complainant to resort to or to have resorted to a particular right or remedy."

That is a much lower hurdle to jump than "exceptional circumstances". The amendment suggested by the member would introduce an exceptional circumstances qualification.

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed to consider whether "other" in clause 10(3)(b) should be deleted.

Mr Chairperson, we referred that to the OLC, which states that that word is necessary in order to be precise about the meaning of the clause, as I predicted last week.

Can you explain that for my benefit?

The clause that precedes it includes another exceptional circumstance. Therefore legislative counsel felt that clause 10(3)(b) needs "other" to make it clear that it refers to "other" exceptional circumstances.

I agree. The potential conflict between the advocacy role and the ombudsman role was discussed, and OFMDFM agreed to consider carefully the views of the Human Rights Commission on that issue. What is your considered response?

I considered that carefully, and Ministers shared some of the concerns raised by the Committee. They have asked us to approach the NIO again and discuss the provisions in subsections 10(4) and 10(5). The Committee will recall that the issue centres on the exercise of ombudsman and advocacy functions. It would be problematic if the commissioner were to act as an advocate before acting as an ombudsman. However, it is much less problematic for the commissioner to act as an ombudsman first, and subsequently use his or her powers of advocacy. As the Bill is drafted, that would be prohibited by 10(4) and 10(5), and we want to discuss those with the NIO to see if there is any room for manoeuvre.

Are members content with that answer?

There is a separate issue, which I do not want to go into in too much detail. With regard to clause 10, what is OFMDFM’s opinion on inserting a clause to give the commissioner the opportunity or the ability to take class action?

We looked at the issue of the commissioner acting on behalf of groups of children and young people. As we mentioned, the provisions, as currently drafted, will allow the commissioner to act on behalf of identified groups of children and young people. It would not be possible or desirable to have provisions to allow the commissioner to act on behalf of unnamed children or young people. That could run us into problems with the European Convention on Human Rights.

What problems are those?

We could run into difficulties with the right to a fair trial, as detailed in Article 6 of the European Convention on Human Rights, if the commissioner were to pursue an action or discharge functions on behalf of anonymous children.

I accept that.

The Office of the First Minister and the Deputy First Minister agreed to look at whether the wording of clause 11(2) could be clarified. Do you have any comments?

We have considered that, but the Office of the First Minister and the Deputy First Minister feels that the wording of the clause should remain. The provision contains some very important restrictions, and the Ministers do not think that it should be amended.

Do members have any comments?

There are similar problems with clauses 11(4) and 11(5) as there were with clauses 10(4) and 10(5). The Office of the First Minister and the Deputy First Minister is to revisit clauses 10(4) and 10(5). Is it possible to do that with clause 11?

The member is entirely correct. We will take up those provisions with the NIO in the same way.

Subject to the NIO’s response to the member’s suggestion, is the Committee content with the clause?

Several members were also concerned about clause 11(7) and the need for clarification. There is no precise form of wording on that, but the Ministers have asked us to examine it and consider an amendment to clarify how that clause will operate and the circumstances in which the commissioner might seek to use those powers. We will come back to the Committee on that.

Subject to that, the Committee is content with clause 11.

The Office of the First Minister and the Deputy First Minister agree that subsection (3)(b) should provide that the notice of investigation should also to be sent to the complainant. Mr Stewart, have you any comments?

That has been accepted. There will be an amendment to that point.

The Office of the First Minister and the Deputy First Minister has agreed to consider whether it would be appropriate to send the notice under subsection (3)(b) to the Committee.

The Ministers considered that point but felt, on balance, that it would not be appropriate to do so. The Ministers felt that it could leave the Committee open to accusations that it was becoming directly involved in the day-to-day work of the commissioner in a way that might be seen as prejudicial to the commissioner’s independence. They also pointed out the difficulty of giving a formal statutory role to the Committee of the Centre, which is not a Statutory Committee but a Standing Committee.

I see the Ministers’ point.

The Committee also had concerns that clause 12 excluded non-devolved bodies.

What provision of clause 12 mentions that?

Clause 12(1)(a) states that the commissioner may conduct an investigation in relation to

"a relevant authority other than one listed in Part II of Schedule 3."

That provision and, indeed, the complexity of that part of the Bill reflect the outcome of negotiations with the NIO. There is a difference in how formal investigations will operate in relation to the transferred and devolved fields. The NIO has made its position clear. Again, if there were any attempt to amend that, the Secretary of State would not give consent to the Bill.

In other words, he is not prepared to play ball.

I would not put it as starkly as that.

Yes, but we had better live with the reality.

The Deputy Chairperson can say that, Mr Stewart, but you cannot.

Absolutely.

I am sure that the Secretary of State, being a Scotsman, would not be at all familiar with west Tyrone language. There has been a concession on the first query.

I know that we are holding things up, but this is important. In relation to clause 12, was any thought given to granting the commissioner stronger powers of formal investigation, such as the power to instigate investigations and powers of subpoena and discovery, rather than waiting for a referral?

We considered the circumstances in which the commissioner should be able to exercise the powers of formal investigation contained in clause 12. The Ministers are not minded to extend that.

Clause 16 provides for the commissioner to have substantial powers to summon witnesses and discover documents. Those powers come into play in relation to formal investigations under clause 12.

Is the member satisfied?

Yes.

With regard to clause 12(6), it may not be necessary to include the words

"and, in particular, it is for the Commissioner to determine whether any person may be represented by counsel or solicitor or otherwise in the investigation."

It may be sufficient for it to read as follows:

"Except as otherwise provided by this Act, the procedure for conducting a formal investigation shall be such as the Commissioner considers appropriate in the circumstances of the case;"

What is your opinion on that?

Again, that matter was considered carefully, but Ministers felt that the provision should stand as drafted.

Mr Shannon, if you feel strongly enough about the matter, you can table an amendment.

I think it was said earlier that, if the Ministers feel strongly enough about it, it does not really matter what we say. If the Committee does not agree with the Ministers, irrespective of what happens outside, the amendment may not be accepted. Is that the impression that the Committee has?

With regard to the NIO, yes.

That may be the case in relation to the NIO’s position, although we will explore that with it. Today, I hope to show those areas where Ministers have made it clear that they agree with the Committee’s suggestions, and will table amendments to reflect the Committee’s concerns about those matters. Of course, there are other areas where Ministers disagree with the Committee’s suggestions, but the Committee is free to table its own amendments on those points.

If it is in order, I propose that the Committee tables an amendment.

Could we leave that for now, because we are not yet at that stage?

In that case, may I put on record my intention to propose an amendment?

Yes.

Why do you want to remove that part of the clause? Obviously, the commissioner’s role is to assess whether someone should be represented by counsel or solicitor or otherwise, rather than assume that someone will be taken through the whole process every time a case comes forward. Could that not have a huge impact on the cost?

The member is merely registering his intention to propose an amendment.

That is correct. We do not have time to debate the matter now.

When the legislation comes back from the Ministers, and the Member has the chance to consider the matter again, he may decide not to table an amendment.

I may decide to go ahead.

The Committee is content with the clause, aside from the information that is to come back.

I thought that the point of today’s exercise was to go through the Bill and either agree or not agree on each clause. Jim Shannon proposed that part of clause 12(6) be removed. Officials say that the Ministers said that they will not remove that part. I cannot see how the answer that we get next week will be any different from the answer that we have today. Therefore, the Committee has the right to decide now whether to propose an amendment to the clause.

Indeed, it will have. The Committee will decide on that matter.

Can that not be done today?

The member simply said that he has an intention to propose an amendment. When the legislation comes back to the Committee, the Committee will reconsider it. Members will have to say "Yes" or "No" to each clause, and if anyone says "No", we will simply vote on it. Someone can vote to deny Mr Shannon’s amendment, but he could propose it again.

I can make the point today or at the next meeting. I can continue to make the point until such time as the Committee decides what to do. I must register my concern about the necessity for the second part of clause 12(6). I do not know whether it is appropriate to debate the matter now, or next time — if there is a next time.

There will be a next time. The Committee has to do this again, because reworded legislation will come back to the Committee. Am I right about that?

I will check the matter with the people who contacted me.

The Committee should agree as much as it can today. The reworded parts of the Bill must come back to the Committee to be agreed. At some stage, the Committee will have to agree on the matter, because to return to the point that Patricia Lewsley made, the Committee must say "Yes" or "No". I have given everyone a chance to have a say, but the next time will be the last. I apologise, because I must leave the meeting. Can someone act as Chairperson?

We may not have a quorum.

I am about to leave.

I was told that the Chairperson would be back, but I have an appointment and I must leave.

Is another member available to attend the meeting?

We may be able to get another member.

I will stay until then.

Clause 13 raises issues that the Committee wishes to discuss with the NIO. In the absence of an opportunity to raise those with the NIO, the Committee must decide whether it wishes to propose any amendments to the subsection. Will it raise those concerns in the letter that it will send to the NIO on other issues? Is the Committee content with the clause as drafted?

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed that a report under subsections 14(1) and 14(2) should also go to the child, or children, concerned. It also agreed to consider the need to include the reasons for recommendations in a report under 14(4).

Is the Committee content with the clause?

Was any consideration given to power of enforcement when the clause was drafted?

Yes. That was considered at length throughout the drafting and preparation of the Bill, and the Ministers are not inclined to include any powers of enforcement at this point.

Why?

Fundamentally, it is not considered appropriate that the commissioner should act in that way. However, an additional, and important, reason is that, if powers of that nature were included in the clause, the NIO’s immediate reaction would be to refuse to agree to include juvenile justice in the Bill.

Clause 14(4) states:

"A report under this section may include recommendations as to action to be taken by a relevant authority mentioned in the report".

Would it not be appropriate that the reasons for each recommendation must also be stated clearly?

Yes.

We have already agreed that. Subject to the agreed changes, is the Committee content with the clause?

The Office of the First Minister and the Deputy First Minister agreed to consider the inclusion of reasons for recommendations in clause 15.

In the absence of enforcement powers, should we consider strengthening the powers of the commissioner? In clause 15(1), 15(2), 15(3) and 15(4), should we replace the word "may" with "must"?

That was considered carefully, but it was felt that it was more appropriate to allow the commissioner a degree of latitude and discretion rather than make the suggested amendment.

In clause 15(5)(a), after "recommendations", should we insert "and reasons"? Or has that been done?

That has been agreed.

Subject to the wording approved by the Office of the First Minister and the Deputy First Minister, is the Committee content with the clause?

The Office of the First Minister and the Deputy First Minister agreed to reconsider the definition of employees under subsection (2)(d) to include voluntary workers.

It is unfortunate that we do not have a precise form of words for you today, but that amendment will be made.

The Office of the First Minister and the Deputy First Minister agreed to reconsider the wording of subsection (7) concerning a "duly authenticated document" and whether such authentication needed to be given by, for example, a Justice of the Peace. It also agreed to consider the need for the phrase "if so required".

We sought specific advice on that point from the Office of the Legislative Counsel, which advised that the clause is OK as drafted. It is not the intention that the commissioner or his or her staff would have to seek authentication in each individual case from, for example, a Justice of the Peace. However, they would have a standing authentication in the form of a warrant card or similar document, which could be produced if required. That is thought to reflect current best practice in the use of powers of entry.

There is a concern that some premises, such as leisure facilities, might be excluded from those mentioned in subsection (1)(c). It needs to be broadened out.

We have examined that point, and feel that those type of facilities would fall into the meaning of the clause as drafted. The member’s concern is reflected in the Department’s policy intention.

In subsection (1), after "he may", should the words "subject to the provisions of subsection (7)" be inserted? It is important to have that at the beginning.

If necessary, we will go back to the Office of the Legislative Counsel. Inserting those words might, however, make it tautologous. Subsection (7) can be read back into the application of all of clause 17.

I am happy if that is the way in which it is interpreted. I wanted to ensure that it was watertight.

I understand the member’s concern. I assure him that other interested parties, especially the NIO, were at pains to ensure that we included suitable checks and balances on the use of power of entry.

Do members have any concerns?

There was a suggestion that the word "formal" should be left out of clause 18(1)(a). That would strengthen the power of the commission to prevent the obstruction of the commissioner. What are your views on that?

The difficulty is that it would be too strong. Informal investigations, which are allowed under the Bill, are extremely broad in their application; they are, to all intents and purpose, unlimited in their application. To make all such investigations subject to that provision relating to obstruction is not something that we would want to go ahead with. If we did, it is likely that it would be challenged in the courts.

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed to consider whether "judicial review" should be added to the list in subsection (1).

The advice from the Office of the Legislative Counsel is that that is not necessary, as the normal court rules on discovery would apply and documents could be discovered for the purposes of judicial review.

If the advantages of judicial review are already incorporated, that would be sufficient.

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed to consider whether subsections (1) and (5) should be amended to provide for the reports to be subject to scrutiny by the relevant Committee of the Assembly.

Ministers are not minded to amend that provision. It is thought sufficient that the annual report is required to be referred to the Assembly. That makes it open to the Committee of the Centre or, indeed, any other relevant Committee that is given that function in the future to have access to the commissioner’s report.

Clause 20(2) states:

"The first report under this section will be made as soon as practicable after the third anniversary of the passing of this Act."

Should a time limit be set by adding the words "and before the fourth anniversary of the passing of this Act", so that there is a responsibility to produce a report within a particular period?

Ministers have considered that, but do not feel that any amendment is necessary. They feel that the existing wording "as soon as practicable after" is sufficiently strong to ensure the prompt submission of the commissioner’s report. However, they agree with the Member’s concern that it should not be unduly delayed.

Question, That the Committee is content with the clause, put and agreed to.

The Office of the First Minister and the Deputy First Minister agreed to reconsider the implications of this clause in relation to "independent providers".

We examined that carefully and we were minded initially to make an amendment to the definition of independent providers. However, having considered it further, we did not come across any additional examples of independent providers that would not be captured either by the existing definition or as relevant authorities in their own right. If organisations emerge in the future, which are not covered by the current definition, we would seek to include them, not within the definition of independent providers, but directly as relevant authorities in their own right. The Bill includes provisions to do that quickly and in a straightforward manner by means of subordinate legislation.

Question, That the Committee is content with the clause, put and agreed to.

The Committee discussed whether the definition of child should be amended to cover children from conception. Officials from the Office of the First Minister and the Deputy First Minister stated that the Ministers have not yet taken a position on that matter and agreed to relay the views expressed at the meeting.

We relayed those views. Ministers carefully considered the arguments for and against that proposal, but have asked me to make it clear that they are strongly against such an extension of the commissioner’s remit.

I asked about that matter last week. It is unfortunate that so few members are present today because the issue raises concerns for many of us. I believe that the words "from conception and" should be included in the clause, and nothing that I have heard has made me change my mind. I am not sure how other members feel about the matter. The point was made that the inclusion of those words might in some way inhibit the progress of the legislation. Is that correct?

Several arguments were made, and I am happy to recap on them. Dr McDonnell cogently pointed out that the inclusion of the wording would inevitably tie the commissioner to the controversial and sensitive issue of abortion law, which could be to the detriment of the exercise of the commissioner’s other functions.

Our argument had three strands. First, if the amendment were made, the commissioner would have few, if any, tools to work with. International law on the rights of unborn children is unclear. There is not yet a sufficient body of jurisprudence to make clear how international human rights standards would come into play. In ratifying the UN Convention on the Rights of the Child, which is the key standard, the United Kingdom Government made it clear that the interpretation placed upon it applies from birth onwards. In domestic law, the position is equally unhelpful in that, although it is clearer than international law, unborn children have few rights. Given that the initiative is very much rights-driven and the commissioner’s core concern will be rights, he or she would have few tools to work with in relation to the rights of unborn children.

Secondly, the argument was put that the commissioner should be concerned with information, advice and research on matters that might affect the health of unborn children. It was pointed out that several statutory authorities already have that specific responsibility, including the Health Promotion Agency, the Food Standards Agency and a broad range of bodies operating in the health and social services field. Against that background, Ministers strongly believe that it would not be appropriate to extend the commissioner’s remit in the way suggested.

You mentioned that the commissioner would have few tools with which to work. If, over time, changes were made elsewhere, this would become a much more legislative issue. Would the inclusion of those three words in the Bill now make it easier for the system and the rules of law to work? Should we amend the wording now to cater for any changes that may come later?

In the future, it would be possible to amend the commissioner’s remit to include unborn children if it was felt that it was appropriate to do so. From the outset, it would also be possible for the commissioner to use the powers that are proposed in clause 3 and clause 20 to comment on the appropriateness or otherwise of that remit. For example, clause 3 includes the function of keeping under review the adequacy of law and practice in relation to rights. It would be open for the commissioner in doing so to comment on his or her remit or the general state of the law in relation to those matters.

The Chairperson is not present, but I know that he shares my opinion on this matter. I cannot speak for my other Colleague, but he is probably happy for the wording to be included in the clause. Perhaps I can receive guidance on how to take the matter forward.

The Committee may wish to defer decision on this clause until another day, when more members may be present.

Deferral might be better.

The Office of the First Minister and the Deputy First Minister agreed to consider the suggestion that the commissioner’s remit should cover young people up to the age of 25 who suffer from disabilities.

Ministers are agreed that they wish to table an amendment to include disabled young people up to the age of 21, rather than 25.

Under the UN Convention on the Rights of the Child and the Children (Northern Ireland) Order 1995, what is the age limit for people with disabilities? Is it 25 years?

I would need to check that. I do not have that detail. I do not think that the UN Convention contains anything beyond a general limit of 18 years.

There appears to be a typographical error at 25(1)(a), in that "bodies subject to complaint" should read "bodies subject to investigation".

That is a typographical error, and the Office of the Legislative Counsel was greatly embarrassed when it was pointed out. It will be fixed.

Who says we do not read the Bills?

Has the Office of the First Minister and the Deputy First Minister agreed to consider the interpretation of "relevant authority"?

The Ministers do not intend to propose any further change to "relevant authority".

It also agreed to check the implications of the Bill for children of refugees and asylum seekers.

No change is proposed for those provisions for the reasons that were outlined last week. Those are excepted matters, which will not be devolved to the Northern Ireland Assembly. The Bill provides for the commissioner’s remit to include an examination of the services provided to children of refugees or asylum seekers, for which the Assembly and Northern Ireland Departments are responsible.

It may be an excepted matter, but the Office of the First Minister and the Deputy First Minister should have an opinion on it. What is its opinion? It is relevant to clause 26(2)(b).

The Department does not propose to include any excepted bodies in the definition of "relevant authority", and it would be inappropriate to do so.

What happens to a child of refugees who is born in Northern Ireland? What is that child’s status?

Those children would be deemed to be ordinarily resident in Northern Ireland, and therefore would come —

Would they come under the commissioner’s remit?

They would have access to the full range of health, social services and other services that ought to be provided. The commissioner would be able to examine the adequacy, or otherwise, of that service provision.

It is reasonable to assume that a child who was not born here might have problems. What position would that child be in?

The position would be similar. The commissioner’s remit could take into account the provision, or lack of provision, of services to that child. The commissioner would not be involved in determining the refugee status of such children.

Would a child of a refugee or an asylum seeker have the same rights as every other child?

Yes. They would have the same rights as anyone who was ordinarily resident.

The Office of the First Minister and the Deputy First Minister agreed to reconsider the definition of "parent" and to include a definition of parental responsibility.

That was agreed.

Issues were raised about staffing in paragraph 5(5), where it states that the approval of the Department of Finance and Personnel is required. That could be seen as political interference in an open and transparent employment system. It has been suggested that the phrase "subject to examination" should replace the word "approval".

Ministers share the Committee’s concerns about those provisions, and an amendment is proposed. There is no precise wording for the amendment, but the Ministers have decided that an amendment will be brought forward to clarify how those provisions will work in practice and to ensure that there is not an undue level of interference with the day-to-day conduct of the commissioner’s business.

It has been suggested that paragraph 10 effectively means that the commissioner cannot raise additional funds and that that is unnecessarily restrictive. No such duty is placed on the Northern Ireland Human Rights Commission.

The Ministers are not minded to amend that provision. They feel that there is a sufficient degree of flexibility contained in the provisions in paragraph 10(3).

Why?

Subparagraph 3 allows a degree of discretion and allows for those provisions not to be applied to such sums, or sums of such description, as the Office of the First Minister and the Deputy First Minister direct. At the time, the Ministers will want to make a ministerial statement about how they see that operating in practice. They will make it clear that they do not see that provision as unnecessarily or inappropriately restricting the commissioner’s opportunities to generate income. Those are a fairly standard set of provisions.

It does not close off the possibility of applying to charitable trusts or foundations?

No. The commissioner could, for example, raise money by offering organisations awareness training.

Several consequential amendments are included at the end of schedule 1. There appears to be a typing error: should paragraph 16 of the schedule be numbered paragraph 15?

Well spotted. We have picked up on that and it will be changed.

I want to suggest an amendment to paragraph 12(3) of schedule 1 to include a provision that a copy of every report is sent to the Committee of the Centre for its scrutiny.

That relates back to an earlier point. The Ministers feel that it is sufficient for the reference to be to the Assembly, rather than the Committee specifically.

Would it be better to provide that every report is sent to "the relevant Committee"?

Again, Ministers are minded to leave the provision as it stands, with the reference to the Assembly.

I apologise for being late.

The Committee has one issue with schedule 2. It is suggested that the provisions may constitute a breach of the European Convention on Human Rights.

It is not felt that they would. We said that several amendments would be made to earlier provisions in clauses 12, 14 and 17, which are similar to the provisions in schedule 2, and that we would introduce similar amendments to schedule 2 to ensure that they remain consistent. Other than that, it is not proposed that those provisions be amended.

In schedule 2(2)(b), after "concerned", should the phrases "the office and Committee of the Centre", "the appropriate body" or "the Assembly" be inserted?

The amendments in relation to the earlier clauses will be reflected in schedule 2.

Schedule 2(4) states:

"An investigation shall be conducted in private".

Should something similar to the previous discussion be inserted there that clearly states the reasons for each recommendation?

That is agreed. An amendment to that effect will be introduced.

Is the Committee content with the schedule subject to the amendments that will be proposed by the Office of the First Minister and the Deputy First Minister and by the Committee?

The main issues raised deal with the separation of devolved and non-devolved bodies. We have not met the Northern Ireland Office, so I do not know what is to be done about those amendments. It is understood that the Assembly Ombudsman has questioned the inclusion of his own posts as Ombudsman and Commissioner for Complaints under the schedule. He has also questioned the inclusion of the Police Ombudsman and the Parliamentary Commissioner for Administration in Part II of the schedule.

We have considered that carefully. My colleague met Tom Frawley to discuss his concerns. We feel that an amendment should be made. It is probable that the Commissioner for Complaints could have many dealings with children and young people in the conduct of his functions. Therefore, it is important that the commissioner for children and young people should have, within his or her remit, the operation of the Commissioner for Complaints.

Equally, it is important that children or young people who may have complaints about the commissioner for children and young people should have somewhere to take those complaints. Therefore, our commissioner should be within the remit of the Commissioner for Complaints.

That completes the clause-by-clause scrutiny. Members received a further submission from Trond Waage, the Norwegian Children’s Ombudsman, and a response from the Committee for Education.

Is the Committee content that those are included in the final report?

We are not at the final stages. I wish to have a clear understanding. If members wish to raise other issues, are we still free to make suggestions?

The Committee has cleared certain clauses today. The Office of the First Minister and the Deputy First Minister has agreed to come back with wordings, and we shall have an opportunity to examine those, and to prepare the final report. We do not propose to go back over the clauses that have been agreed.

If members have particular concerns, can they still be raised?

Any member can table an amendment at Consideration Stage in the Assembly.

I wish to clarify that we shall return to clause 24.

That will take place at our next meeting on Wednesday 16 October — possibly.

2 October 2002 / Menu