COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

PETER CLARKE,

CHILDRENS COMMISSIONER FOR WALES

 held at

Committee Rooms

County Hall, Haverfordwest

on

Thursday, 10 April 2003

LORD RICHARD: Good morning. Thank you very much for coming. We ask people to simply identify themselves for the transcript. Secondly, would you be kind enough to make some introductory remarks, and identify any issues that you feel the commission needs to follow?

MR CLARKE: My name is Peter Clarke, and I am the Children’s Commissioner for Wales, for the purpose of the record.

I thought I would talk a little bit about the history and role of the office, as you indicated you might like me to do, but I thought that I would not go through the pre-legislative history because I think that is fairly well known. I will talk more about the role of the office and what I have done to put that role into action.

The phrase that is most often used is an "independent champion for the children and young people of Wales". The independence is crucial and guarded carefully, and there will no doubt come up the question of accountability, but the independence is very important. Although I report to the National Assembly of Wales, in the sense that I provide them with an annual report and they provide me with my budget, I do not report to them in any sense asking for their permission to do things. In general terms, as long as I comply with the Acts of Parliament that set my office up and the regulations that accompany it, then my accountabilities are not to the Assembly in any sort of managerial or executive sense.

The independence has been set up in that way in part because part of my role and function is to look at the National Assembly itself and see how far it is acting in the best interests of children and young people in Wales. The powers that I have been given and the powers primarily to gain access to information do extend to the National Assembly itself, both in its policy-making function and its practice. It would therefore be impossible for me to do that with any rigour or vigour if I actually had to report to someone in the Assembly, and that is why I believe it was set up in the way that it was. I am obviously also independent of any other local government or other structures, so there is no board that guides my work. As I say, primarily the accountability is to the Act and the regulations.

There was an intention in the legislator’s mind that we should also increasingly become accountable to the children and young people of Wales in very direct and meaningful ways. We are at the moment trying to set up mechanisms whereby children and young people can have an active say in what my office does and the work programme that we put forward and the things that we pursue. That is a challenging task. We do not have fully representative systems for young people in our country yet. The evolution of Funky Dragon, which is the young people’s assembly, will help us in that task in due course, and we are in active conversation with them.

The champion bit is harder. I believe, and my sons remind me if I forget, that you have to earn the right to be the champion of young people; it is not something you can assume just because you have assumed the title Commissioner for Children. I see it rather like respect: it is something that is hard won and very easily lost. I think one of the biggest tasks that I face over the next few years is trying to earn the respect of sufficient of the 700,000 children in our country so that one day I can call myself a champion with some degree of confidence.

The over-arching aim of the legislation, and my role therefore, is that I should be there to protect and safeguard the rights and welfare of children. It is a human rights institution in one sense and also a welfare institution. That makes it an interesting one, and on occasion it can be one that is quite difficult to sustain.

I am given a variety of powers in order to do this and a few responsibilities. Responsibilities are few; the legislation is empowering rather than restrictive and requiring me to do a great deal.

Among those things that I am required to do are to ensure that I have full regard to the United Nations convention on the rights of the child in everything that I do; also to try and ensure that as many as possible of the young people of Wales know what their rights are, as enshrined in the UN Convention; to involve children and young people directly in the work of my office – I have already alluded to that – and to make sure that I pay special regard to groups of young people who are marginalized often. Some of those groups are stated in the Act: young people in care; disabled young people; traveller children – a range of groups, which are often left out when adults are considering the needs and interests of children in general.

The powers I have are generally those to review services and to gain information when I am doing reviews – to review and monitor services. Those powers are quite strong. If I am doing a review, I can require information from any service provider within the devolved areas; and that is something that is obviously very important, sitting here today. All those things that are devolved to Wales under the Government of Wales Act – all the services provided to children in that way – I can actually require information if I am undertaking a review. The law actually states that if people do not comply with that request, then they can be deemed guilty of a contempt of court; so there is a degree of strength behind that.

Probably the strongest power is to hold a public inquiry; it is called "an examination" in the Act. I am currently undertaking such in the circumstances surrounding the death of John Arwen Owen, who was a teacher. I cannot say much about the detail of that because the hearings re-commence in a fortnight or so. But that capacity to hold a public hearing and demand that witnesses attend and give evidence on oath is a very strong power that has been given to this office, and one which, obviously, we are feeling our way with because it is quite unique.

I have the power to advocate on behalf of children generally, and there is a nice catch-all phrase, as there is in much legislation, saying all the things that one needs to do to do those main things. There are a few powers, but they seem adequate for the task so far, with some exceptions that I will specify if I am asked.

What have I done? I started on March 1, 2000. Literally, there had been no thought as to the development of the office. In our commendable haste in Wales to get a children’s commissioner up and running, we had completely overlooked the need to have a development plan of any sort whatsoever. I was therefore given a year’s running costs, one Act of Parliament at that stage and some of the accompanying regulations, and told to go away and get on with it. Due to our mutual concern about my independence, the Assembly was not able to provide a great deal of help. As you can imagine, the first year was spent doing such things as devising a staffing structure, as there was none, and recruiting to that staffing structure, involving children in the recruitment of every one of the 17 staff I appointed. We have officers now in Swansea and Colwyn Bay, and we equipped them and did all the rest of the things that one needs to do just to get up and running. I set myself the target of having those two offices up and fully staffed within one year before starting. I missed it by one month, but nonetheless I was quite pleased to have achieved that much. We still have room for two or three more staff, and we will be recruiting those in the next couple of months; but those are posts for young people themselves. We are taking great care in those because we want to make sure they get proper support and training opportunities when they join us.

I did 165 public speeches in the first year. Many, many people wanted there to be a children’s commissioner. A lot of people had supported it in Wales, but very few knew what had come out of the legislative process, so I felt it was very important to get round the groups of young people, professionals, teachers, paediatricians, et cetera, and to explain to them what the role was and what the powers were. That was another large task.

It was literally myself and the PA for the first eleven months of our operation, but we did have 75 individual cases come to us in that time as well. Many of these were cases that had been stuck in the system for some time, and therefore they were pretty complicated. That has risen dramatically this year. Then there were two or three big issues, big in the sense that they had a high media profile. An example was the young woman in North Wales who had won a place to Gordonstoun and the local authority did not want her to go. The proposals and commitment to build schemes on landfill sites in Conwy and Newport, and the withdrawal of the Children Society of all its services for advocacy in Wales. I there used the power that I have to access the media to argue, as I saw it, in the best interests of children and young people.

In the second year, which has only just finished, there was a staff team at last, and so we were able to embark on a much more serious methodical work programme. We produced our first annual report. We have produced Ten Concerns, which is the review of all 22 local authorities in Wales’ social services, systems of complaints, advocacy and whistle-blowing for children and young people. We now have just about 400 cases, which is a concern to us because they are proving quite time-consuming.

We have made significant policy inputs to the Assembly on various policies that it has been looking at in the fields of education. Again, there had been a number of issues. We have also enjoyed the delights of the National Audit Office doing its first audit and telling us how we are not doing anything properly at all and that we need to get an awful lot of procedures and systems in place, which we are now doing as quickly as we are able. None of the senior staff in my office have any experience with regard to NAO requirements, so it has come as something of a culture shock to us, but we are learning quickly.

I have three staff teams, headed by an assistant commissioner. The first, who is also my deputy, Maria Battle, is a solicitor, and therefore makes sure that we get proper legal advice, both to comply with our own law and all the laws that affect children and young people. She also is responsible for the finance and administration within the office.

The biggest team is Communications. They are the main players in the production of the annual report. They are the ones who are evolving systems for us to get regular feedback from as many children and young people as we can. They tend to be the creative arm of the office, and they come from all sorts of novel ways in working with children and young people.

Our Policy & Service Review Team was responsible for the production of the first report that we produced.

I feel that the office has been established fairly well. I think our profile is fairly good at the moment, and that our credibility is fairly good. It is a massive remit. There are so many things that we can do that legislation enables us to do, and I think one of the biggest things we are going to have to continue to learn is to know which of the many roads that we could walk down, we walk down and at what time and how far, in order to be most effective to be a champion for children and young people.

I will just finish on iconic part of our work. In my conversations with the children and young people of Wales, I was finding fairly consistently – and we backed it up with a survey – that in about 50 per cent of children who are at schools, they felt that the state of the school toilets was both a sign of a general adult disrespect for them and was unacceptable in terms of their daily living conditions. They pointed out to me – and this was backed up by some paediatricians – the consequences of them not using school toilets because they are in such a bad state. One of them said that they would not take on water during the school day. I was really pleased - because that was mentioned in my annual report - to see the First Minister having to answer questions in a plenary session of the Assembly on the question of school toilets. In some ways, I think that shows the way the system is meant to work with my office: children raising an issue that I would not have dreamed of, and me using the power of the office to get it to the decision-makers so that things could be done about it.

LORD RICHARD: There are many possibilities for action on your part and that of your office, but how important is the statutory framework within which you have to work? Do you think that needs looking at? Do you think that the statutory framework they have given you is a sensible one? Does it need expanding? Are there gaps?

MR CLARKE: In general, I think it is good. It is well constructed, in the way that I fit into that framework. There are gaps, and the Assembly is aware that I have compiled a list of things that I would like to see changed, both at the primary legislative level and in terms of secondary legislation through the Assembly. Some examples are that it seems I may not have the power to grant anonymity to witnesses who are giving evidence to me in a public inquiry. We have not tested that. I would like that clarified. In fact, we were challenged by the BBC’s lawyers on that, but luckily we managed to work out a way of getting round going to court.

LORD RICHARD: Do you want that enshrined in the statute?

MR CLARKE: Yes.

LORD RICHARD: Was that raised when the Bill went through?

MR CLARKE: I read Hansard and various bits and pieces. I do not remember that being the subject of debate. It has proved problematic in the conduct of the inquiry I am undertaking at the moment.

I would also like the power that was been put into Northern Ireland’s Children’s Commissioner when the post was advertised for last week, to take test cases to the courts on my own behalf, as the Commissioner. The powers I have at the moment only allow me to back a child or young people taking a case through the courts, and I think there may be circumstances where I would want to do so, where I would like to test the law on certain issues.

LORD RICHARD: You say you back the child. Do you pay the costs?

MR CLARKE: We can, yes.

LORD RICHARD: If it is a case you think worth airing -----

MR CLARKE: There are certain criteria that have to be fulfilled.

LORD RICHARD: Obviously, but basically you back them and pay the costs.

MR CLARKE: Yes. There was some debate in Hansard about my access to children and young people. It is not written into the Act; I have no right of access to children, as such. Again, I believe in the Northern Ireland legislation they do have a right to access to children at places where children normally gather, such as schools and children’s homes and the like. I personally would like to see it framed in terms of children having a right of access to me, and to put it that way round in the legislation. The outcome would be the same in that I could require people who run children’s homes to let me through the doors.

TED ROWLANDS: They can stop you coming in through the doors, can they?

MR CLARKE: Technically they can at the moment, yes. I would have to do a review then of their arrangements. It would be a long and drawn-out process, and I personally would like a simple and clearly-stated right that children have access to me, which would mean I could go and see them, and I am sure it could be worded in a way that allowed that to happen.

Having read Hansard, I think the thinking was the Care Standards Inspectorate has a right of access of that sort, and that their role was more inspectorial; but I need a right of access to children sometimes if they need me to advocate on their behalf. That is a shortcoming, I think. Those are the main issues at the moment, apart from the broader issue that is entirely pertinent to why you are sitting here. I would like to see juvenile justice brought up to my powers and remit in a stronger way. My strongest power is to demand information and require things of people, but they are restricted to those things devolved to the National Assembly under the Government of Wales Act. The key areas that that excludes are anything run by the Home Office, which is juvenile justice, probation, the courts and the police. I am less concerned with the family courts once CAFCAS is fully operational, because there are independent guardian ad litem in the family courts.

LORD RICHARD: What do you actually want? Do you want to be able to appoint magistrates or organise the courts?

MR CLARKE: No, nothing like that.

LORD RICHARD: Do you want to take over from the probation service?

MR CLARKE: Nothing so ambitious, no. I want to be able to find out information. In a couple of cases already, a young person has been in care and then gone into the juvenile justice system. I have been dealing with them very well under the powers that I have when they are in care, but the minute they have gone into the juvenile justice system, it is a lot more complex. Those are the anomalies I am looking to sort out. I am not asking for a great deal in fact, but I just think that I should have similar powers to get information in those circumstances. In Wales, particularly, we have a shortage of secure estate for young people; and therefore we find Welsh young people being sent to Bristol or South Wales or North Wales, across to Manchester and Liverpool. I am just concerned that those children are then outside my remit.

LAURA McALLISTER: What about the Youth Justice Board whereby it operates in England and Wales? Although there is a representative from Wales, he is not necessarily a Welsh representative as such. How do you feel about that?

MR CLARKE: I welcome the fact that we have representation there, but given the independence of my office from other such mechanisms, I still personally feel the lack of powers to require information. The police, for instance, have been incredibly collaborative and co-operative, and I have met with operational commanders and all sorts of people. I have visited the Park Prison and Swansea Prison at their invitation. However, when a young person is in one of those prisons, none of my powers apply. I would not be looking to exercise such powers against the court, but I would want to comment on the regime whereby young people are kept in adult prisons, for instance, with a greater degree of strength, coming from the fact that I had specific powers to do so. I do comment, but it would just give me more power to find out things and therefore to give more informed comment.

LORD RICHARD: I am not sure whether you are saying the statutory framework is too narrow and needs expanding or that it is too large and you need to contract it in a way in which you can work. The things you have been raising – it is a huge spread of activity.

MR CLARKE: But I start with the child, rather than the way we happen to divide things up, with respect. I find that children and young people, when they go through their lives, bump into various adult organisations, and they do not experience their lives primarily in the way that we adults happen to divide the things we do up. For children in care particularly – I do have some cases on my books of individuals who have gone into care with no criminal record whatsoever, and they have gradually acquired one during their career in care, and then end up in juvenile justice institutions. The range that I am looking for is because I want to follow children through their lives, rather than because I per se want extensive powers over lots more things. I really take the point – and I experience it daily – the remit is already huge. But if we take the view of the child and the credibility of this office in the eyes of the child or young people, then it is important that there are a few places that I cannot actually help them.

PAUL VALERIO: How do you propose to rectify these perceived deficiencies? What is your route?

MR CLARKE: My route is to go through the Assembly, and that is set out in the Act. You then go to the Wales Office.

PAUL VALERIO: But the Assembly not having the powers themselves directed to it is an impediment.

MR CLARKE: In one, sense, yes; it is going to be lengthier. Also, I cannot personally see it being a very high priority for most legislators.

PAUL VALERIO: In that context, when we were in Scotland they were discussing a Children’s Bill in the Scottish Parliament. I understand that England is going through a slightly different process. We have a commissioner in Wales. I find it difficult to understand how the needs of children and young people differ in the context of devolution; I would have thought that they would have been the same. I can understand the rural and urban differences, but I cannot understand the primary basic needs being different regionally. Is the piecemeal system of attacking it the correct way?

MR CLARKE: That is a very good question. I personally think it is because we now will have commissioners in Scotland, Northern Ireland and Wales; that much is certain. Indeed, I was in London yesterday, where there were very active debates going on about England. My personal view is that given the emergence of Wales in the sense of nationhood, that has some reality for its children and young people as well. I also think there are great advantages of scale of having offices in each of the devolved countries, and I think that was a problem for England when they looked at having a children’s commissioner. The scale of the task in Wales, whilst very, very challenging, is not impossible, and there is an ease of identification with Wales as a country, and therefore a commissioner having a role and powers. That makes my job easier when I am explaining to children and young people what my role is and what my function is. I personally think it would be more difficult to do that, so if I could give you a quick aside, given what I was saying about trying to follow children’s lives, there is also merit in having the powers as near the customer as possible. Therefore, it is good that the children of Wales have a commissioner who they see regularly in the Welsh media, who they will see in local authorities, schools and children’s homes. If there was an over-arching framework, it would be hard to achieve that, if there were a single commissioner for the UK. That is my view.

LAURA McALLISTER: Another distinctive issue in Wales is the linguistic one.

MR CLARKE: Of course, yes.

LAURA McALLISTER: That is very, very significant in terms of children because of the whole education picture as well. One other thing relating to the linguistic point: we have heard from the Welsh Language Board of the problems with the Criminal Records Bureau and their obtuseness in terms of complying with a Welsh language scheme. That is particularly relevant for children, is it not, because a lot of the people who have requested Welsh documentation are working with organisations like Welsh language schools for example. Have you had any relationship to that particular debate?

MR CLARKE: Certainly, and I went to see the Welsh Language Board very early in my appointment. I am sensitive to the fact that I do not speak Welsh myself, but I have appointed a good number of staff – 40 per cent I think – who are fluent and bilingual. We are obviously going to have a full Welsh language scheme for my office. It is particularly important that children, if they are talking to us about something sensitive, can do it in the language that they feel most comfortable with. That is another argument, which I failed to point out, for having a distinctive Welsh commissioner.

TED ROWLANDS: There is a very powerful independent inspectorate to inspect prisons, and the remit of that inspectorate would be to check and assess in the most thorough way whether children who were locked in, and out of prisons, were being treated properly; yet you are proposing that you cut across their role in some way.

MR CLARKE: Not really. I have had discussions with the Inspector of Prisons.

TED ROWLANDS: What does he or she say?

MR CLARKE: Basically we are working together, and we are trying to collaborate whenever we are going to make public statements about young people. A lot of the juvenile justice scheme is not just to do with prisons.

TED ROWLANDS: No, but you mentioned specifically that you wanted powers to have the right to enter an adult prison where there was any child, and to comment on the conditions there.

MR CLARKE: Yes.

TED ROWLANDS: Which is the function of the inspectorate.

MR CLARKE: Indeed. My view is – and it may not be borne out, given the personality of some of the people involved actually – that as a general principle, wherever an agency has a dual responsibility for adults and children, the children lose out in the main. That is just borne out by my own experience. Other people may take another view. Therefore, I think my singular focus on children and young people would put me in a better position to comment on that – a general inspectorate with responsibility for adults as well. Obviously, that would need to be talked through, and the legislation would need to take account of it. It is one reason, for instance, why I and the European network of ombudsmen for children, like to have independent children’s rights commissioners rather than a human rights commission with a children’s part to it. Experience suggests that the children’s needs are often then secondary when put alongside adult needs.

TED ROWLANDS: Are you saying that when a Welsh child, that is a child who is resident in Wales, is transferred to an institution outside Wales, you will have the right to follow that child through to that institution if there is any need to do so?

MR CLARKE: The current Act allows me to do that where it is, say, a social services department, placing a child in care in a home in some sort in England. The current Act allows me to do that where it is, say, a social services department, placing a child in care in a home in some sort in England.

TED ROWLANDS: The Act allows you to do that.

MR CLARKE: They are still under my remit because their original sponsoring authority is here within Wales. I would like something similar; that is all I am saying, so that if a young person is moved out, then I can still keep them on my books, as it were, and still be their commissioner for that period of time.

One part of the answer to this may be, if and when a commissioner is appointed for England, that these things would have to be resolved then: that commissioner would or would not be given responsibility for matters that come under the areas we are talking about. At the moment, it stands as it is and the devolution of powers to me is right along the same line as devolution to the Assembly under the Government of Wales Act.

PETER PRICE: As far as prison is concerned, can I establish whether you are seeking to substitute your authority in this area for the existing prisons inspector; or whether you are seeking concurrent responsibility.

MR CLARKE: I will be absolutely frank: I have not thought and discussed that through yet with a number of people that I would want to discuss it with, including my own management team, so you are going to get an off-the-cuff response. I think that either model would be acceptable to me, as I sit here. I would probably look for the one that was least confusing to the children and young people and go with that. I will now take that back.

As I say, these are issues that we have got listed, but we have not yet put them to the National Assembly, precisely because we have not thought it all through. As we go along, we find what we think are anomalies with regard to the legislation, and we list them and discuss them, to a point where we come to some conclusive view. We will then put them formally to the National Assembly, which they are encouraging us to do.

PETER PRICE: Of the four points you raised where you would like to see legislation, it was only this point of the criminal justice system where your problem was bumping up against the limits of devolution itself. Are there other areas where you bumped up against those limits?

MR CLARKE: Yes.

PETER PRICE: Which are they?

MR CLARKE: The probation service, where, again, they have been collaborative; but there have been a number of occasions where I could not have forced them to give me what they chose to give to me in order to find information about a particular young person’s case. In one circumstance it was a rather worrying set of circumstances that I would have wanted to look into. I was able to refer it to other authorities in that case.

The general area is the area of child protection committees. Child protection is a core concern of this office, and quite rightly so. Of the people who are active members of the area child protection committees, the police have a very significant role. I have already found myself in situations where I have been furnished with the full report of an ACPC review, except for the bit from the police, because I have no right to demand it. They did volunteer it eventually, but initially it was withdrawn by the secretariat of the ACPC because they knew that the police did not come under my remit. That has only happened on one occasion, but it is rather concerning that I can end up with some very significant bits of information missing when I am doing a review on a case or a particular set of affairs.

PETER PRICE: These are all examples in the criminal justice area. Child protection is outside it, but it often overlaps.

MR CLARKE: Yes.

PETER PRICE: What other areas, if any, have you found you have bumped up against devolution limits?

MR CLARKE: I have mentioned CAFCAS, the courts advisory service, as being excluded from my remit also, and for good reason – there are already large numbers of guardians ad litem set up. In the history of CAFCAS over the last two years, there have been a number of problems - and I am sure that they would accept that. I have felt a degree of inhibition from being able to advocate strongly, even though I have had a number of representations made to me on behalf of individual children caught up in that – delays in getting guardian ad litem appointed, reports going to courts and such like – and also collectively from a number of guardians themselves. I felt a degree of inhibition about being able to say anything very hard about that, in the way I would like to. Informally, I have had meetings with CAFCAS and similarly the Criminal Records Bureau – which is back to justice areas, if you like.

I do not want to overplay these; I am not saying that I sit there every day lamenting the fact that I do not have these additional powers; but, obviously, in two years of practice I have, as you said, bumped up against various things, and it is important we correct those together and at a due point when we have a settled view about them. We can go to the Assembly and ask them to take them forward.

The only other case I can think of is the benefits system, which again is on an England and Wales basis. I cannot pretend to have bumped up to it in a practical way yet, but there are issues for 16-18 year olds - my remit goes to when they are 24 – where the benefits system has a clear impact on their lives; and, again, those are outside my remit.

LAURA McALLISTER: What about the poverty agenda? That features prominently in your report. The Assembly does not have all of the tools to deal with the poverty agenda. Can you give us any examples of initiatives that you would want the Assembly to conduct that it cannot do under its current remit?

MR CLARKE: I have been pleased that they have responded to my report by committing themselves to having an anti-child poverty strategy in Wales. I have not, to be honest, felt I have had the time – or perhaps I did not even have the expertise – to look at the bigger issues like the commitment by the Chancellor to eradicate child poverty within a decade, or what-have-you. I welcome that, but I do not think I have a clear enough view of how the Assembly works in relation to economic, macroeconomic policy and the rest of it, to say that I would want powers at these stage, or to even comment any further than I have done in my report. I am afraid I am going to sit on the fence.

TED ROWLANDS: What power would you wish to have, or do you need in relation to the benefits office?

MR CLARKE: As I say, I do not sit there lamenting it; it is just looking at the Bill and comparing it to children’s ombudsmen across Europe and the model that is generally adopted, which follows the Paris principles and the UN standing committee on children. The clear areas where my role differs from many others is in these areas that I am specifying. I did say that I have not had any practical examples of when it has caused me any difficulty; so some of what I am saying is informed by my understanding of other models around the world of children’s commissioners – or they call them ombudsmen quite often. Devolution has meant that mine is slightly atypical in that way. Austria has six or seven commissioners in each of its regional structures within the country, but the anomaly has been resolved by giving them a degree of collective power with regard to their primary legislation. Given that we have not yet got a commissioner in England, or even an intention to have one, that is not open to us at the moment as one way of resolving that issue. We could give the power with regard to matters of primary legislation, wherever the fault line of devolution is, to a collective body of commissioners within the United Kingdom.

TED ROWLANDS: If that person was between the age of 16 and 24, which you say falls within your responsibility, and was deprived of a benefit, there is a very rigorous appeal and tribunal. How would your rights relate to that process?

MR CLARKE: As I say, I have not bumped into that one yet. Very many young people who contact us want advice on how those systems and procedures work. They are often in great ignorance of it; so if nothing else, we can refer them to those agencies that can pursue with vigour.

TED ROWLANDS: You can do that anyway, can you not?

MR CLARKE: There may be also circumstances where I might want to take a test case. It seems that we have talked about that matter for quite a while, and it is not something that exercises me greatly. The one about benefits is just that objectively that is an anomaly, if you like, and it certainly is an anomaly when I view it alongside other ombudsmen across Europe. I am not saying I experience it as a big problem; it is not exercising me greatly; I have got plenty of other things to be doing that are more important probably at the moment. I did feel it worth mentioning, because it is one of those things.

LORD RICHARD: You have a whole range of powers or potential powers. How do you get the clients? Do they come to you; do you go looking for them; are you in contact with local authorities?

MR CLARKE: There are a number of different ways. I think one of the most important things we are trying to do is to get a clear understanding among children and young people and those people who work with them as to what our role is, so that we get appropriate clients. Otherwise, we could be overwhelmed by the number of young people who would come forward with advocates on their behalf. We have regular meetings with local authority complaints officers. We meet regularly with the social services inspectorate and with other people who have a watchdog function. We obviously are setting up some mechanisms to meet directly with young people themselves. We have a website and we are having an e-mail club. We are hoping to pilot this year a system of ambassadors in schools, with pupils who will take on responsibility for putting around the word about the Commissioner and what my role is. We are trying a number of different mechanisms in order to achieve that. I think that is one of the hardest tasks. It is particularly difficult because the Act does restrict my active advocacy role for individual cases to where the young people has already made use of any other system available to get redress; typically, it is a young people in a children’s home, let us say, and wants to make a complaint. I have to put them first off into the local authority complaints procedure, and we will often go alongside them while they go through that. That, very cleverly in the Act, is combined with my general power to review those complaints systems because it means that as those systems are improved, so we can refer young people with greater confidence to them. These are unproblematic in terms of arrangements and the way it will work. Those are some of the ways in which we get people coming to us. We certainly have not gone out and made a call for people to contact us with all their problems. I have tried to be very clear in every talk I have given and every bit of information that goes out that we are not seeking to replicate Childline. We are not here to replicate any body like the NSPCC. We are not here to do that; we have a very particular role and function. It is new in this country, and we are feeling our way somewhat.

TOM JONES: Can you explain more about the role of the National Audit Office in scrutinising presumably how your management systems are working? Do they report back to the Assembly about your management systems -----

MR CLARKE: Hopefully not, no.

TOM JONES: You are independent of the Assembly, as you described at the beginning, and you are different to the Assembly-sponsored public bodies who are directly accountable for any waste of effort or duplication. On the one hand you are able to go back the Assembly and say "I want more money because the work is overwhelming" - and cannot really refuse it because of this independence bit that you referred to – you need to be scrutinised in terms of your management of staff and so on. How is that developing?

MR CLARKE: Firstly, you are quite right that my legal status is that I am not an Assembly-sponsored public body; I am an officer sole or corporation sole in law, which is the National Audit Office itself as such – and there are not many of us, I believe. I also have the role of accounting officer, and so I am subject to all the Treasury rules and guidelines that go forward with that.

National Audit Office does both financial and performance audit, but the Act is very clear, that they cannot interfere with policy matters.

In the event of them being dissatisfied with the arrangements I have in hand, then I would, I believe, be reported to the public accounts committee and the National Assembly, but could also end up in front of the House of Commons Accounts Committee. That is my understanding. So there are two ways I could be hauled up and made accountable for that.

SIR MICHAEL WHEELER BOOTH: Mr Clarke, in reading your interesting report, I was struck by the fact that they were very much a pre-emptive causes, troubles or the underlying problems, and there was nothing said about the origin – the Waterhouse report of events in North Wales – and preventing anything like that happening again. Did I read your report correctly, that you are going a step further and trying to prevent these situations occurring rather than prevent the particular cases occurring in future?

MR CLARKE: I think "yes" and "no". Our general approach is to precisely do that, to try and stop such things happening again; but my powers of review, and the case I have already talked about where I am doing a public inquiry, will be looking at some specific failings, and then bringing out recommendations to remedy them.

SIR MICHAEL WHEELER BOOTH: If there were another terrible case, people would say, would they not, "haven’t we got a Children’s Commissioner?"

MR CLARKE: I am sure they would, but I am very clear myself – and I try and help others achieve clarity – about the limitations on my role. I always say that the Commissioner is a necessary part of our child protection systems, but by no means a sufficient one. It is not me going through the front doors and making judgments about whether to take children into care. It is not me running children’s homes. However, over time I can ensure that the systems, mechanisms and procedures are in place so that it is much less likely that such a thing will ever happen again. I do think that one part of my role has been to damp down people’s expectations, and I think it would be wrong for anyone in this country or any other to think that the appointment of a commissioner, however extensive the powers, would be a necessary and total remedy. I still think we have a very important part to play, and I have no delusions.

SIR MICHAEL WHEELER BOOTH: The second question is very much based on your opening statement. You said that you were not accountable and that you were summoned by somebody, and then told to get on with it. What was your own background? Who was the person who, so to speak, pushed your little boat out into the stream? Secondly and connectively, you said you had got three assistants: a lawyer and one in communications, which was the biggest sub-department; and the third was to do with policy and service problems.

MR CLARKE: Evaluations.

SIR MICHAEL WHEELER BOOTH: We know about the lawyer, but what about media?

MR CLARKE: Communications is primarily communicating with children and young people in Wales, and they also hold the PR function of the office.

SIR MICHAEL WHEELER BOOTH: So their training is -----

MR CLARKE: The woman who heads that up was an NSPCC employee before, called Sarah Reed. The policy and service evaluation is not our own policies, but the policies of the Assembly, local authorities, health authorities and the rest of it; so they were the lead team when we did our review of complaints – 22 local authorities and social services departments, looking at legislation coming out of the Assembly and giving comment on it.

SIR MICHAEL WHEELER BOOTH: What about your own background of birth, so to speak?

MR CLARKE: I was appointed by the National Assembly, but the process was interesting. I was interviewed for an hour and a quarter by a panel of 12 young people, aged 12-19. They conducted the interview in its entirety. They devised the questions and they had been trained in equal opportunities and employment. It was an interesting experience, which I could share at length - and this was for all six short-listed candidates. I was then given a half-hour break and ushered into another room, where seven young people made us do a role-play that they had designed, and they marked us on how we performed. They put on various plays and acted scenarios and asked us detailed questions on our attitudes to the issues they were raising like bullying, racism and things that affect children. That total group then got together and compared notes, and elected two of their number, who sat alongside Assembly Ministers on the panel the following day, and they had full voting rights. That is the first time in the world that has been done with a public appointment of this level. Sweden and Norway are rather jealous and are hoping to follow suit.

On being appointed – the history in a way is untypical of what will happen in the future because I was appointed under the Care Standards Act as Children’s Commissioner. Having got the job, I was handed a Green Paper, three days afterwards, which rather changed the job – so that came through that primary legislation. My contact point with the Assembly is through the Health & Social Services Minister, currently Jane Hutt, but it is the contact point. There were lots of telephone conversations as the regulations were being drafted and enacted. At the point when I took up the post, the regulations were not in place, and the Children’s Commissioner for Wales Act was not actually passed until July of the first year, whereas I started in March. As it happened, it came in a bit of a muddle.

If I can clarify my accountabilities, I am appointed for a period of seven years and I cannot be re-appointed. The Assembly make the appointment. The reasoning goes, and I am greatly in favour of it, is that because of my role with regard to the Assembly itself – if they re-appoint me, I might be very nice to them in the last couple of years in order to curry favour and then re-appointment. I can be removed from office under three circumstances specified in my letter of appointment: resignation, illness and, in what is an interesting phrase, if I am found guilty of "serious misbehaviour" – which is probably very appropriate for a children’s commissioner.

My books are audited by the National Audit Office. I am required to provide an annual report to the Assembly each year, and I provide in that report to set out certain things: the work I have done in the preceding year, and my intentions with regard to the coming year. Again, it is not asking their permission so to do. They do provide my budget. It is currently at 1.25 million.

SIR MICHAEL WHEELER BOOTH: What was your background before that?

MR CLARKE: I am a qualified social-worker by training. I was a director of Childline Cymru Wales for five years prior to this job. Prior to that, I was a director of Wales for the National Schizophrenia Fellowship, a mental health charity. Prior to that, I was community care advisor to SCOPE. I have a good swathe of experience. Before that, I worked in Brixton, in south London, as a social worker and as an officer in the council responsible for grants to voluntary agencies. That is a very potted version.

LORD RICHARD: Thank you very much. That has been very useful to us.