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We move on to the public session of our children's commissioner inquiry. We will take evidence from Mr Ian Smith, who is the local government ombudsman, and Nicol Stephen, who is the Deputy Minister for Education and Young People. Scottish Executive officials Gill Stewart and Peter Willman will also be in attendance.
I want to explore with Mr Smith the principles behind the idea of a children's commissioner. I feel that people in the office of a children's commissioner should have a distinct role that should not overlap with your work. Do you foresee them having a role in local authority service provision or do you foresee them acting as a clearing house and passing case work on to you? The commissioner's role is about a culture of rights, whereas you are more firmly focused on what happens in the administration of public services.
The role of the ombudsman in Scotland will change. In the past, the role was defined as being to do with service failure and maladministration. However, because of what is happening with the European Court of Justice and because the European convention on human rights is enshrined in United Kingdom law and has a big influence on this Parliament, I suspect that people will begin to consider issues much more in terms of rights. The rights of young people have to be considered in that context.
By your own admission, only one case has been directly brought by a child. Do you think that the children's commissioner's role should be to facilitate more children to come forward? You talked about a variety of different roles, including influencing and campaigning, which could be seen as distinct from your role. Is there a gap in the market that could be met by a children's commissioner or is everything covered by the variety of institutions that exist out there?
If my office was not going to be abolished, I would probably encourage more complaints from young people by taking away barriers to communication. At the moment, we use a form that is not necessarily all that accessible. By using different means of contact, we could encourage a broader range of complaints, including those from young people.
I want to be clear about your precise powers in relation to investigations. Could you talk me through that process?
The powers are much more limited than people believe. Some believe that the ombudsman has far-reaching powers, but our powers relate to failures in the administrative process. Where people have alternative remedies, particularly through the courts and tribunals, clear exclusions apply. That will continue to be the case with the more sensitive issues to do with children.
It is nice to see you here. You have extensive experience of these matters, as I know from when we met before.
That is a difficult question. The main areas of representation by parents on behalf of children tend to be those over which I have jurisdiction. Matters of education policy, philosophy and the curriculum are not for me. However, I am responsible for issues to do with administration by the education authority, such as records of needs and psychological services—services that are ancillary to the mainstream education process but are important to the life of the young person. There would be limited involvement in social care. In Scotland, there are fairly sophisticated arrangements in terms of legal rights through the courts and issues for children with special needs are dealt with through the children's hearings system.
During the evidence that we have been hearing, I have been trying to get down to some hard examples. You have suggested that a children's commissioner would advocate the broad issues of process and policy in relation to children throughout Scotland. Can we build on that? If the commissioner's role were that, rather than one of rectifying problems—something that others have advocated, although that is not without difficulty—would there need to be changes at a higher level? In other words, there might need to be changes in the Scottish Executive to create a mechanism to allow the issues that the commissioner identifies to be acted on across the whole policy portfolio.
I will answer your question with two points. First, I see the new ombudsman service as an opportunity to improve communication and information about complaining in general. Within that there is potential to draw on the voluntary sector and give it a stronger role in providing the mainstream population with an understanding of rights, obligations and the way in which things work. There is a parallel for a children's commissioner to be involved in information giving.
I have a couple of final points. Given your answers and what you described as a crowded situation, is there any other body or individual who could undertake the role of children's commissioner without creating a new role? Is the implication that some existing bodies will have to shed parts of their roles to create space for a children's commissioner?
I am not qualified to comment on the existing services that give advice to children and young people; I know only about the statutory services of which I have had experience, the limits of my present jurisdiction and the thinking of existing ombudsman services about including people in a future complaints system. I am not close enough to the world of children and their representatives to be able to give you a solid answer on any deficiencies.
I would like to ask about your powers and the powers that might be given to a commissioner. Given your extensive experience of dealing with complaints in the local authority sector, would it be useful for a children's commissioner to be able to impose legal sanctions on local authorities to ensure that they deliver improved services to children and young people? If so, what kind of legal powers or sanctions would be needed?
That is an interesting question. The United Kingdom tradition has been that anyone in such a scrutiny and inspection role should work through recommendation rather than power of enforcement. I would be uncomfortable with anyone being given powers of enforcement, because, in our system, it is only right that powers of enforcement lie with the courts.
To press you on that, do you feel that your powers and those that would belong to the commissioner are effective enough to deliver improvement?
Yes. I can give you an example, although it is not about children, but about a recent local authority case that went to formal investigation. When we were taking evidence about the case from the local authority, I gave it the opportunity to reflect on what had happened. The authority came up with a solution to the problem that was beyond the capacity of my office to imagine. In other words, it is best to go back to the people who know what they are talking about, get them to identify that there has been a problem and ask them to find a solution. In the case in point, they brought in an element of advocacy for the complainant. That would never have occurred to my colleagues or me. I strongly believe that the people who are under my jurisdiction could probably put things right themselves and should always be given that opportunity. Of course, if the matter becomes polarised, we have to think of a different way forward.
The committee will have to grapple with the problem of reserved and devolved issues. Would it be important for the children's commissioner to have a remit on issues that are reserved to Westminster? If so, which issues would be involved and why?
I do not have expertise on children's matters; I do not know what the cross-border issues might be.
Some people argue that the field could become crowded. What benefits would the establishment of a children's commissioner have for young people in Scotland?
That question would probably best be answered by people who have extensive experience of working with young people. I can speak from former local government experience. If you manage to give a focus to young people's concerns within a local authority, you get a different perspective on life from the one that usually comes through the official channels.
Thank you for your time.
Peter Willman and Gill Stewart from the Scottish Executive are our next witnesses. Do you want to make any opening remarks?
I did not make a written submission, as you invited us to come and give evidence. If the committee would find it helpful, I will say a little about the part of the Executive that we come from and what we cover, to provide context.
Although we do not have a written submission from you, we have a memorandum that was written in May 2000. The committee feels that that memorandum took a fairly negative tone about the proposal for a children's commissioner. Could you set the scene for us by telling us whether that is still the view of your group? Has there been any shift in attitude in the intervening 15 months?
The intention was that the memorandum should have a studiously neutral tone, so I am sorry if it came across as negative. We were trying to do a bit of policy analysis that set out the kind of considerations that we thought the committee would wish to address. Those considerations were about the scope and remit of a possible commissioner, what value that person might add, and the kind of questions that the creation of such an office would raise in existing structures and organisations.
I noted your comment about targeted services. As you know, I do not think that those services are as targeted as they could be. However, we will leave that point for another day.
Do you mean across the piece?
I mean specifically in your division.
The main mechanism is the planning process by which local authorities and their partners produce plans for children's services and the information that we are given about those plans. Increasingly, we are working to develop more specific outcome measures. In the past, plans tended to focus on inputs such as the amount of money that was being provided or the number of staff who were available. Our own planning and policy formulation is also guilty of that.
In the child strategy statement, which was issued in September 2000, we said that we would review annually how things were going on, so we did an exercise back in October. Our overall conclusion is that there has been a lot of activity in children's services. As Gill Stewart said, that activity has taken place not just in our group but across the Executive. We do not attribute that to the strategy statement, but more to the efforts of colleagues.
Part of the thinking behind the child strategy statement was to impact on your colleagues across the Executive and how they progress their work. That feeds into the broader issue of mainstreaming. You are charged with the co-ordination and integration of service provision. How do you achieve effective mainstreaming, given that it does not stop with the child strategy statement but has to go deeper? You mentioned health and social justice, but what about the interface between children's issues and areas such as justice and enterprise? Who is charged with that responsibility?
We work with almost all the departments in the Executive on different aspects of the agenda. We certainly work with the justice department on youth justice issues and matrimonial and child law. There is an interface with the enterprise and lifelong learning department on the transition from school to work, and in relation to vulnerable children and young people. A particular example, where the outcomes are not good, is looked-after children. We also work with the enterprise and lifelong learning department on child care policy. Part of the thinking behind child care policy is not just to give children good-quality early care, but to help their parents back to work, which is the simplest and probably the most durable way of tackling child poverty.
Are those links formalised? Are there formal arrangements by which people meet, or are steps taken more in reaction to a ministerial desire to do something in a particular area? Does the work mesh into the Executive's priorities?
In some respects, links are formal; sometimes, they are ad hoc. One of the action team's recommendations was that the Executive needed to walk the walk better with regard to integration. We were perceived as not being joined up enough. In response to that, and to the action team's other recommendations, which were directed specifically at the Executive, it was decided to set up a ministerial group to take forward the whole agenda. It has now been decided that that group will be chaired by the First Minister and will include several ministers. In fact, most of the Cabinet will be on the group. The group will provide a powerful tool for ensuring that different parts of the Executive work together, and will allow us to think about new ways to work and make things better.
If, as has been argued, the roles of a children's commissioner are
In essence, the commissioner's work would add another layer of scrutiny to our activities and offer a way of holding the Executive to account for the way in which it discharges its functions in relation to children and young people.
Do you think that, in this crowded field, to use Ian Smith's image from earlier, there is room for a children's commissioner? If there is, who gets knocked out of the field?
I do not think that it is part of my role to advise whether there is a case for a children's commissioner. That was precisely the task that the Executive asked the committee to address.
I asked whether there was room for a commissioner, as I think that the record will show.
I am not trying to be evasive, but it would depend on the role that was ascribed to the commissioner and the extent to which that role impacted on existing activities and structures. If, for example, the commissioner had an advocacy role, that could have an impact on those voluntary organisations whose raison d'être is advocacy for children and young people. If the role extended to investigation of individual cases or to cases that raised matters of general concern, one could imagine a whole range of bodies on which it might impact, including the police, local authorities, children's hearings and the Executive.
One of the difficulties that I have with our establishing a children's commissioner—although I support the idea—is that, when people are asked that question, nobody says that the commissioner will be doing things that they are already doing. Either nothing is being done or we are not focusing clearly enough on the role.
Either way, one would want clarity about who was doing what. It would be important that the children's commissioner was not duplicating activity that was occurring elsewhere. He or she might tell us, for example, that we are producing statistics on X, Y and Z, but that they really need statistics on A, B and C. That would be a matter of negotiation.
As we debate the argument for having a children's commissioner and devise the commissioner's role, we have to be clear about several things: on whose work the commissioner will impinge; whose legal duties and responsibilities will change; and who will not be able to do what they are doing at present if the role of the commissioner is drawn up as envisaged. We need the Scottish Executive to make it clear whom it funds at present to do certain jobs, including jobs in the voluntary sector. An analysis of that information would be helpful, as it would give clarity about the direction in which we are going. I suggest that we should request such an analysis so that we know where the money is going and whom the children's commissioner might replace.
It would be possible to let members know what grants we give to voluntary organisations and for what purpose.
That would be helpful.
Thank you.
We have asked this question of other witnesses. Perhaps you would cast your mind back to the Orkney case. If a case such as that reappeared, how would a children's commissioner deal with it?
I noted that you had asked that question of other witnesses. The question is complicated. There are powers that would allow an inquiry such as the Orkney inquiry to be held. There are also powers, which did not exist at that time, for local inquiries to be conducted if local issues are involved. That happened in the more recent Edinburgh case.
I asked the question because people might think that, had a children's commissioner existed at the time of the Orkney case and given that the case involved children's rights, or allegations surrounding children and families, such a commissioner would have had a locus to intervene. Time has moved on since then and a number of other mechanisms are in place. What would be the value of having a children's commissioner? The question is important. Mike Russell talked about what is already in place. What added value would a children's commissioner bring to the situation post-May 2000?
Different people will give different answers to those questions. The kind of issues that people bring to us are about raising the profile of children's issues and giving children a voice and a point of easy access if they have troubles or concerns. The question whether a children's commissioner would have a role in inquiries, which are complex and take place in a complex legal area, is far less clear.
When we spoke to the Welsh commissioner, we suggested that the commissioner in Scotland might undertake preliminary inquiries by looking at the grounds and acting almost as a clearing house. The commissioner could say, "These are the issues and this is where the inquiry should go." If the commissioner were to be established in the terms that were outlined by Mike Russell, would you see the commissioner as a burr under the saddle, a partner or a clearing house? What would happen to the present system if something new came along? Somebody asked earlier how the commissioner would affect your work. What would be the relationship between you and the commissioner?
I hope that the relationship would be open and amicable. It would be important for the commissioner to be independent and to be seen to be independent of the Executive. That would not mean that we could not work closely with him or her to make the role work.
Ian Smith spoke about not wanting the powers to enforce decisions. Do you accept that the children's commissioner, if properly constituted, might have a moral authority that stood above the Executive in stature, rather than the power to make judgments that were enforceable in statute? The commissioner would have a recognised role that was independent and based on rights. Judgments or declarations that the commissioner made would have a moral force that the Executive and other authorities would need to respond to in the public eye, even though the statute might not say that they had to do so.
That could happen, but it would depend a great deal on the personal authority and credibility of the commissioner and how he or she was seen to discharge his or her functions.
The age at which people are considered to be children varies in the submissions that we have received.
Our lawyers would certainly tell us that that was tricky territory. If we have a commissioner, it is important that we devise a way of working through it. Depending on the issue, the divide between reserved and devolved matters can be artificial. There are ways of raising issues that relate to reserved matters, although the Parliament and the Executive do not have powers to deal with them. If there are genuine issues that need to be addressed, I hope that we can find a way through.
Do you have examples of relevant issues?
You mentioned employment. There are also issues about access to benefit, particularly for children who are leaving care. There are proposals for transferring responsibility for benefit from the Department of Work and Pensions to local authorities, but that has not happened yet. Even then, there might be a debate about the point at which children can access benefit. In addition, the whole area of child care has an interface with reserved matters, such as family tax credit.
That was a very careful answer—well done.
There are no further questions. Thank you for your evidence.
I will send further written information.
That would be super. Thank you. That is much appreciated.
I have no prepared opening remarks, but I am happy to say a couple of introductory sentences.
Thank you. After last week, I know that you will be aware that we are a difficult committee to steer in any particular direction.
That is not how I found you at all.
We welcome your initial comments. It has been suggested to us that one of the most important functions of a children's commissioner would be to allow children and young people to express views and raise concerns about law and policy in Scotland. Would that assist the Executive?
Yes. It is important to ensure that we consult young people more and the Executive has been trying to do that. The education department has a range of initiatives to ensure that we do more to involve young people in decision making. For example, young people who are still at school are involved in the Scottish Qualifications Authority ministerial review group; Save the Children is being sponsored to produce a children's consultation toolkit; and the Executive is supporting the children's parliament. There is a range of ways in which the views of young people can be included in the policy-making structure. We recognise that we cannot do that alone and that we must rely on working with others to achieve that. The national voluntary organisations are important and, if there were a children's commissioner, they would have a key role to play.
Should the commissioner have the power to require account to be taken of the views of children and young people?
You are asking me to give a clear view on a point of detail. As I said earlier, rather than give a line-by-line response on such points, I would rather allow the committee to come to a view on its own.
You mentioned the structures and mechanisms that are designed to involve young people. Can you give me one example of a young person's input influencing policy or legislation?
The most obvious example that I can think of from my experience relates to the SQA ministerial review group, where the concerns of young people about the delivery of the 2001 exam results were fed in at an early stage and some of the problems that were arising were heard of far earlier than they otherwise would have been. Indeed, in the late part of 2000, young people raised issues with the group. Such concerns had not been heard previously and the Executive and the decision makers in the SQA were unaware of them.
That is the point that I was asking you to clarify. Do you feel that the current system is effective enough, or do you accept that a commissioner could bring added value?
There have been clear improvements. For example, we have had the child strategy statement; the announcement in the past few days of the Cabinet committee on children's issues; and the report and action plan from the action team on integrated services. A reading of that report shows that much more needs to be done and that the current provision in Scotland is far from adequate. I am certain that that is why everyone thinks that the proposal for a children's commissioner is a good one. That said, for the reasons that I have described, the Executive has not worked up in detail its own thoughts about how that should be achieved. The Executive feels that that can be done better by others, particularly in the light of the committee's work on the issue.
I want to return to mainstreaming. As you rightly said, we need to do more to mainstream the participative approach that you have outlined; however, we also need to do that in policy work across all departments, not just in relation to children and young people. What role would a commissioner have in relation to you, as a minister, in learning lessons about policy and practice that could then be brought to the table? Moreover, how would you ensure that those lessons were spread through the Executive as a whole?
Do you mean the commissioner's proposed role in relation to the children and young people's group and its cross-cutting responsibilities?
And the commissioner's relationship with you as a minister.
We have drawn on the precedents of other commissions and commissioners. We already work with the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission, the ombudsmen and a range of organisations that have a direct bearing on the responsibilities of the department and the cross-cutting responsibilities of the Executive. We must consider carefully how the children's commissioner would fit into that existing network of commissioners. We must also remember that there has been consultation on the possibility of a human rights commissioner. I would not like to give an answer that focuses solely on the relationship involving the children's commissioner, the children and young's people group and the department.
That is a welcome acknowledgement of the fact that the commission needs to be independent and should be critical when that is appropriate.
The answer to the first question is that, yes, I would see the lead responsibility lying with the children and young people's group. That group was set up relatively recently—in June 1999—with the aims of putting a greater focus on children's and young people's issues and ensuring good, joined-up governance through a cross-cutting approach. It seems sensible that the group should take the lead in co-ordinating the Executive's work with the commission. However, that would not exclude the involvement of other departments in a face-to-face relationship with the commission, just as is the case in relation to the Disability Rights Commission. The commissioner will meet officials from all sorts of different departments within the Executive, who are involved in justice, health and social justice. There should be an open-door approach.
I am sorry; I was called away as you began to give evidence, so if you have dealt with this already, forgive me. Will you be dealing with the children's commissioner on behalf of the Executive or will it be the minister to whom you report?
As Mike Russell is aware, the lead responsibility for all issues in a department lies with the minister.
You have been to see us twice to discuss the children's commissioner and I believe that you have also answered parliamentary questions on the matter. I am simply asking whether the commissioner will fall within your area of primary responsibility.
We now have a new structure and a new department for education and young people, with a Minister for Education and Young People and a deputy minister. I will not have special or particular responsibility for the children's commissioner. If there were to be a future hearing on the matter in front of the committee, I am sure that Cathy Jamieson would want to attend. Unfortunately, this afternoon she is at a meeting of the Cabinet, at which she is representing the interests of schools, teachers and others who come within her departmental responsibilities.
That is not what her press release said, but never mind.
The powers of the Welsh commissioner make for an interesting comparison. It is fair to say that, because the plan for the Welsh commissioner developed out of the Waterhouse report, the original proposals were quite narrow. Now that the Welsh commissioner is in place, the powers have ended up being relatively wide.
When we took evidence from young people from the children's parliament and the Scottish youth parliament, we got into the question of involving young people in appointing the Scottish children's commissioner. The issue arose with the witnesses from the Scottish youth parliament in particular. I notice from press coverage at the weekend on the children's commissioner and the likely attitude of the Executive that that was specifically mentioned as an initiative that appealed to whoever the sources were who spoke to the press. What is your view on the involvement of young people in helping to make that a worthy appointment? How should that involvement come about?
Are you asking about the procedure to appoint the children's commissioner?
Yes.
That seems an innovative proposal, but I reiterate the comments that I made in response to Irene McGugan's question about involving young people in the process. There are issues about legal responsibility that would need to be considered by the lawyers, but I have nothing against the principle.
I realise that you might be reluctant to commit yourself, but if a children's commissioner were established in Scotland and could not deal with matters such as the Child Support Agency, would the commissioner be hobbled? In other words, what would be the relationship between the commissioner's remit and reserved powers?
As Ian Jenkins is aware, we have good relations with the UK Government. If the Education, Culture and Sport Committee took the view that reserved matters should be part of the responsibilities of the commissioner, we would be happy to support the committee in making representations to the UK Government. I could envisage getting a positive response from the UK Government, depending on the particular proposal—[Interruption.] I am sorry, but I keep hearing lots of bleeps.
It is okay.
It is a message from Bute House.
No, you are not off message minister.
I get nervous when I hear bleeping when I am speaking about such issues.
The minister may be aware that those discussions have already begun. I met the Secretary of State for Scotland a week ago and I know that discussions with the minister's officials are on-going.
The experience of the Northern Ireland Human Rights Commission has been of an annual stand-up fight with the Westminster Government about what is required. Do you see us taking that approach or are you talking about sharing information? If something is not in the remit, but is in an area where you would wish to comment on points of policy or practice, comments could be fed in through whatever mechanism was set up, instead of listing matters X, Y and Z that we think are right or wrong. Will dialogue be on-going?
I do not see us taking a confrontational approach. I hesitate to tiptoe into discussion in this area, particularly with Mike Russell in the room, but in relation to student finance, for example, we had to face up to many issues relating to reserved matters. We recognised that there were areas in which the UK Government had a different view and that it was not particularly constructive to encourage confrontation.
That is why it is important to define the role. The example that you gave, of student fees, is devolved. If the commissioner could comment helpfully on a reserved matter, we must consider to what extent we would accept that, because it is not something for which we could take responsibility.
Student finance is not all devolved. Some recommendations touched on reserved matters, so some of those issues arose. As I say, I am not sure that it is a good parallel; other areas are more appropriate to this discussion. For example, we have sought to work closely with the UK Government and the Disability Rights Commission on some of the legislation that has been passed at Westminster, to ensure that the documents that implement the legislation are framed in a way that is sensitive to Scottish needs.
There are no further questions. I thank the minister.
Meeting continued in private until 16:12.
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