We've received apologies for absence from Julie Morgan, and I'm very pleased to welcome David Rees, who is substituting for her today. Item 2 this morning, then, is a session with the Minister for Children and Social Care on the Welsh Government's childcare offer. So, I'm very pleased to welcome Huw Irranca-Davies, Minister for Children and Social Care, also Jo-Anne Daniels, director for communities and tackling poverty, and Owain Lloyd, deputy director for childcare, play and early years. If you're happy, we'll go straight into questions from Members, and the first questions come from Hefin David. How has it gone in the early implementer local authority areas, and is it something of a mixed bag? huw irranca-davies am: It's gone well, but I'm glad we've done it through this process of early implementer, actually piloting it, because we're learning lessons as we go along. It's been encouraging, to the extent that we're at the point where we're expanding—we've made announcements on expanding some of the early implementer areas so we can learn more lessons. But, in terms of what we're learning, one is the bureaucracy around the current approach that we're taking, because it's being done on the seven early implementers. So, we're asking parents to come in, provide their wage slips, provide the birth certificates, and so on. You're dealing sometimes with parents and families with complex issues and complex backgrounds, so it's difficult. In one case, it's a whole authority, but it's only one—that's in Blaenau Gwent. So, we're having parents, generally, who are outside the areas entirely saying, 'Why haven't we got this yet? Can we please get into it?', which is encouraging. But the other thing we're having is people who are within pilot authorities, where it doesn't extend to the whole authority, saying, 'Well, hold on now, we think we qualify for something under universal care, we think we qualify for something on tax credits. Why don't we qualify for this?' 'Well, you're not in the pilot area.' So, we're learning about these things, but the biggest one, I have to say, is the administrative burden, and I think that's interesting in how we take this forward for a wider roll-out. hefin david am: What is the administrative burden? What specifically is that? huw irranca-davies am: It is that sheer burden on each local authority, and each pilot area, to administer a scheme where we are asking parents to prove eligibility, to bring in documents to prove their eligibility, to make adjustments as it goes forward based on what their changing work patterns are, what their salary slips say. So, yesterday, when we made the statement following the announcement of the introduction of the Childcare Funding (Wales) Bill, we made clear that our preferred option, as put within that framework Bill, is actually to build on, and to learn from the lessons as well, the model of the HM Revenue and Customs type of model, where you actually have—and this, by the way, is supported by local authority providers out there—one system that is a centralised system, where there is clarity, that is handled, that has elements of information sharing between Government departments, such as the Department for Work and Pensions, and so on, so that the work is done for the parents, and the work is done for the local authorities; much cleaner, much simpler. hefin david am: How confident are you that you can achieve that by 2020? huw irranca-davies am: We are very confident. But, as I say, I'm more confident in the fact that we're actually piloting it, and phasing this in, because I think we've learned from some of the experiences elsewhere, including just over the border in England, where they have a different version of a childcare offer, but they've gone for it in a big-bang approach. And it has led to technical issues, it's led to volume issues, where their anticipation of how many people would buy into it was overwhelmed by the numbers who actually then came forward for it, and the complexity, I have to say, of individual family situations, whereas what we are doing, Hefin, is taking this forward very, very carefully. Each roll-out, each expansion that we're doing of the pilot is not—and I know this has caused some people to come back and say, 'Why can't we all have it now?' It's because we're only rolling out to areas where we now need to learn a lesson about whether it's rurality or, as it will be within densely urban areas, where the cost might be slightly higher, and that's allowing us to have the confidence that we'll have it. We've expanded the whole offer across Gwynedd—the whole of Gwynedd, Anglesey and Caerphilly. Flintshire now have a cross-authority offer. Rhondda Cynon Taf is anticipating doing this by September. Swansea is planning to do it, they tell us, in due course—in short order—as well. So, we have the confidence now that, with that learning going on from different pilot areas, we'll have the full roll-out by 2020. hefin david am: Is it true to say that, in the early adopter areas, the intensity of demand for the services is not spread evenly across? huw irranca-davies am: Absolutely. hefin david am: And why is that? Is that going to cause a problem across Wales? huw irranca-davies am: No, it won't cause a problem. If we were doing this tomorrow, it would cause a problem, but what we're learning is that there are some economic issues and then there are some cultural issues. We're not finding a problem here with capacity, whether it's in English language provision or whether it's in Welsh language provision, whether it's in children with complex needs, we're not finding that as an issue. But what we are finding is, for example, one of the well-known ones—and I've spoken about this before—is that, in some of the south Wales Valleys constituencies, there is a family tradition of doing childcare within the families. Grandparents, aunts, uncles and so on provide free, unregistered, unlicensed childcare of a sort. So, some of the aspects are cultural, but what we're also doing alongside this, whilst looking at the capacity and looking at how we learnt from the pilot roll-out, is that communication with parents and providers and local authorities as well. It's about communicating what the offer is, how simple it is to get invovled in this and where they go to, and, critically, I think, how we do that national roll-out would be important as well. hefin david am: So, given the point you've made about grandparents and family, wouldn't it be sensible, then, to offer a subsidy to grandparents to provide this kind of care? huw irranca-davies am: Unregistered grandparents? hefin david am: Well, through some kind of analysis of that. huw irranca-davies am: Well, we don't think so and there are good reasons behind this. hefin david am: Is it because you say that they wouldn't be registered as carers for their own family member? huw irranca-davies am: Yes, but there's a deeper reason behind that registration as well. The childcare offer isn't only to just provide childcare; it's the wider aspects that come with this. This childcare offer ties into the foundation years offer. There's an element of education linked to the childcare offer—there's that 10 hours of the early education foundation years as well. So, there's an issue here with quality, about socialisation and how children learn in an environment, as opposed to purely—as great as all our grandparents and aunts and uncles are—simply child-minding. So, the focus of this scheme is very much on registered licensed providers, which could be, by the way—because we do have them, and we're discussing this at the moment internally and with the Professional Association for Childcare and Early Years and others—grandparents who are actually registered and inspected by the care inspectorate? We're having those discussions. hefin david am: How many of them are there? huw irranca-davies am: We don't think there is a huge number, but we're trying to bottom this out at the moment. We haven't got the exact number, but we don't think they are huge numbers, but there are, in our constituencies, registered, licensed, inspected grandparents who look after other people's children in a little group of four or five or six or seven, but also their own grandchildren. Now that, I would say to you—and I know that Darren raised this on the floor yesterday as well—is markedly different in the nature of it, because it's registered and licensed, than simply informal grandparents or aunts or uncles. I say that as well because we also get people who will say to us, 'I don't want to be paid for looking after my grandchildren; I look after my grandchildren because I look after them'. hefin david am: And what about the view, given that you said that capacity wasn't an issue, of the National Day Nurseries Association, which says that Wales has the most fragile childcare sector in Great Britain? huw irranca-davies am: I don't agree we have the most fragile, but the childcare offer gives us an opportunity to make it more resilient and more robust. We know from the early piloting, and as we roll it out, that there is the immense diversity within the childcare sector, and we're talking about everything from those very small terraced homes that have been licensed and registered to take six or seven children, to large, complex environments that perhaps are on maintained premises within school premises, provided by a voluntary or third sector organisation. So, there's immense complexity and we know that that differs across Wales, and we also know there's immense regional variation in the scale and the type of childcare offer. What the roll-out allows us to do, backed by £60 million of capital money behind it, in terms of capital development of childcare facilities, backed by a 10-year workforce development plan for childcare—and bear in mind this is bolted in as part of our foundational economy approach as well—that means, by 2020, we get to the point where we're putting the money into the capital development but also to the workforce development, because in some areas we're finding it's not to do with lack of provision and facilities, it's to do with lack of staff. hefin david am: That's fair enough, but is it realistic to think that there's going to be capacity growth in the next two to three years to deliver the product? Is that realistic to think that that foundational sector can provide that level of staffing? huw irranca-davies am: Yes, I think it is, absolutely, because, again, what we're finding is we've got several things going on at once in terms of how we monitor and assess the development of this roll-out. One is the work that we're doing on the ground with the phased roll-out, so we're literally learning live time, and I have pretty much weekly or fortnightly updates on how things are going, but also there is a termly update as well. We've also commissioned additional work from Arad to look at this first phase of the roll-out that we've done to see what that tells us as well. But the feedback that we're getting from the childcare providers themselves, on the basis that we're now identifying where either the gaps in the workforce or the physical facilities are, is that, 'Yes, we can do this', because we're putting the money in, we have the strategy for the workforce development, and it's not going to be the same in all parts of Wales. It's not as if what we're saying is, 'Here's what we're going to do all of a sudden—flick a switch and we have a universality of the same type of provision everywhere.' So, let me give you one key example. Alongside this, alongside the £60 million capital fund, alongside the workforce development, we've also identified a separate strain of money into cylch meithrin. We're specifically putting money into developing that, and, in fact, the first one of those will be, from that new tranche of money, opening up, I think, in September. They anticipate, as part of our big strategy with Welsh language development, we'll have an additional 40 of those by— jo-anne daniels: Thirty. huw irranca-davies am: It's an additional 30 by 2020, and an additional doubling of that in the 10 years after that. We can't take this for granted, Hefin. hefin david am: The last thing from me: the £4.50 single national rate—is there a danger that we might be creating a kind of EasyJet-style nursery provision where you get the basics but the wealthier parents are going to be able to pay for better care within those settings because of the add-ons? huw irranca-davies am: We really mulled over this a lot and discussed it, I have to say, not only internally but with childcare providers out there and with parents as well and with local authorities. The first thing to say is the £4.50 rate that we've set has been welcomed, and it's been welcomed because it's unlike the much more complex offer that's in England, where there's a variable rate and there are lots of determining factors on it and it's added complexity and confusion. hefin david am: Can I just ask there, it's been welcomed perhaps in Blaenau Gwent, but has it been equally welcomed in Cardiff? huw irranca-davies am: No, because we haven't rolled it out in Cardiff yet, and that is a salient point. But will it be, then? huw irranca-davies am: Yes, it will be. Some of the more expensive areas like Cardiff and Newport are knocking on our door saying, 'Please can we have this offer?', and we are keen to give it to them. But, as I say— hefin david am: But do you anticipate a capacity problem with the £4.50 in those areas, compared to, say, the Cynon valley? huw irranca-davies am: We can't anticipate it yet, Hefin, but that's exactly the reason for going into that area and then assessing how it works. We're reasonably assured by the feedback that we're having that the £4.50 might work as a universal amount. But if we learn, when we roll it out in Cardiff and Newport, that there needs to be some variation, we can look at that, because we're not doing a big-bang approach. So, that is part of why we will move to roll it out within Cardiff and Newport and other more expensive areas and learn from it, but at the moment, I have to say, the £4.50 amount has been welcomed—it's appropriate. You touched on the other aspect, though, of the wider aspects of beyond the £4.50, because the £4.50 doesn't cover everything. The £4.50 is a contribution towards the wraparound childcare element but it doesn't cover—and we agonised over this—the issues of things like transport out on trips or food or snacks and things like this. Now, we did agonise a number of things that brought us to the conclusion where we are. I have to say, this hasn't been ivory-tower stuff; it's been in discussion with the providers but also parents. One: parents are quite used to—with childcare settings and play care settings and so on—the idea that providers are quite different. Some providers charge a fee that does everything in one; others provide simply the childcare element but they tell the parents—and I'm used to this as a parent myself, although mine are older now—'Mr Irranca-Davies, when you sign on, just to be aware, if we do take your kids down to St Fagans, there's going to be a little bit of a charge for that' and so on. hefin david am: That's fair enough, but it would be the lowest-income working families who would be most unduly affected by that, because the higher income families would be able to afford those add-ons, the lower income ones won't. Isn't that a concern? huw irranca-davies am: If money was absolutely no object, then I think you'd be looking at quite a different offer, but it has to be affordable within what we've got as well. The fact that parents, including those who are on lower incomes, are used to currently discriminating between providers, not only with childcare settings but also within school settings as well, where very often schools now will say, 'We're doing something extra'— hefin david am: That may be the case, but it's not fair, is it? huw irranca-davies am: In a pure argument about equity, and if funding was no object and if the burdens of austerity were released and we were told we had money—'You can do what you want'—I think you'd be looking at a very different approach. But within what we have, I think this works very, very well indeed, because it's very transparent for parents who are used to making these decisions. But within those additional hours, you may be with a local provider in the middle of Powys that actually says, "Within that we provide everything"; you may be with a provider that says, "Well, actually, we do a whistles and bells thing and we take them out on trips, but it's up to you if you want to come, and here's the additional cost—".' Parents are used to making that decision and realistically, in terms of what we can do with this offer, this is actually—the arguments around this have been well rehearsed both with providers and with parents and we're not getting any concerns that this is going to unnecessarily disadvantage. In a total fairness argument, would you make it universal and with no additional charges? Well, possibly you would. But we work within the realistic— hefin david am: Or have a lower top-end income limit. huw irranca-davies am: Depending on how the Bill progresses in the main Chamber and when it goes through committee, there's that flexibility built into the Bill that those things can be looked at over time and adjusted. For the moment, I think there is an attraction, in terms of the upper limit, of saying: one—'Let's try not to add additional complexity, let's go with a scheme that's already working its way through the system, which is, if you like, what they're doing in England, and not add additional complexity. But, secondly, there is an appeal to universality, curiously, in saying to all parents—and I say this regardless of political hues across the committee here—there's an attraction when you say, 'Let's make an offer focused on working parents as it is', as universal to those working parents as possible, and avoid the administrative costs of saying, 'Well, let's take the upper limit down to £80 or £60 or £55.' There's always the question of how much additional cost is incurred in actually doing that tweak of complexity. darren millar am: Just to ask, the labour market costs are changing, aren't they? You've got the national living wage increasing—[Inaudible.]—that's going to have a bearing, isn't it, on the affordability of this project in terms of the childcare offer and the suitability of the £4.50 per hour regime? By the time it's fully rolled out, of course, that £4.50 rate is going to be a number of years old, for example. Do you have plans to review that? Where is it headed? Because it's certainly not going to be enough in the future. huw irranca-davies am: It depends how far in the future you're looking. I have to say, the feedback that we're having at the moment from organisations like the Professional Association for Childcare and Early Years and from the National Day Nurseries Association Wales and others is that this is the right rate and it's suitable not only today but for the foreseeable future of rolling this out. darren millar am: But they've raised concerns about the national living wage implications, haven't they, as well? huw irranca-davies am: Of course, and I think it's incumbent on us as well to not— darren millar am: So, it's not fair to say that they haven't raised concerns about the rate. huw irranca-davies am: Yes, but what they're not arguing for at the moment is for this rate to be raised. darren millar am: But they have suggested that in meetings— huw irranca-davies am: That in future— darren millar am: Absolutely. huw irranca-davies am: Well, of course, in future, any Minister, any committee, will want to come back and look at—is the hourly rate, as one element of the scheme, appropriate to the current financial challenges for the sector, and not least, by the way, as we try not only to develop the workforce, but to develop the career pathways through this as well? And I think that's the right discussion to be had, live time, as this is taken forward. But at this moment in time, we're not getting people saying within this part of the roll-out that we need to adjust this amount. darren millar am: So, have you forecasted for any adjustment in the rate going forward in terms of affordability of the project? Because you've still got this £100 million price tag on it, haven't you? huw irranca-davies am: Similar to the point that was raised with Hefin about Cardiff and Newport, if we identify that the rate is not appropriate, if it's—. I don't think anybody's going to come back to us and say that it's too little. But do bear in mind that it's above where the average England rate is, even though there's this complex variability within the English rate that has caused some confusion there, which is why the universal rate with us has been welcomed. If we find, as we pilot it, or if we find because there are more expensive areas for it to be delivered in, there needs to be adjustment, then we'll be back in front of the committee arguing why that needs to be the case. darren millar am: But that won't put the project at risk in terms of its finances? huw irranca-davies am: No, no. We are still very confident, looking forward, on the best projections we have, fed by the live input that's coming in from the pilot, which will be fed again in the autumn—the Arad report coming forward—that we have not only the capacity to actually deliver this—challenging as this is, we have the capacity to deliver it—but also that the funding that's available, on our best estimate—the estimate we've stood by, that broad ball park of that £100 million figure—it's deliverable within that. And if it changes, I'll have to be sitting down with my boss, Vaughan Gething, and with Mark Drakeford, to argue the case on it. But that rate, combined with the other elements of this childcare offer—there is sufficient there allocated to actually deliver the whole roll-out. mark reckless am: Minister, as a parent who's been researching childcare options, it's obvious to me that in Cardiff, and to a degree in Newport and Monmouthshire, costs are substantially higher than this, and I haven't been able to find anywhere that has a six-hour day for £27, which is implied by your rate. Isn't it the case that rents and wages are higher and therefore you're going to need a higher rate to make it work? Isn't that already obvious? Why are you postponing coming back and looking at this until some point in the future? huw irranca-davies am: Chair, my biggest fear is a parent who's actually involved in this area already, but, having been one myself—. Mark, you may be right, that's exactly why we're piloting it and that's why when we pilot in Cardiff and Newport, we know we have lessons to learn over the affordability and the £4.50 per hour rate. mark reckless am: But you're not piloting it in any of the high-cost areas that I've referred to. mark reckless am: When are you starting? huw irranca-davies am: Cardiff and Newport—September. The reason we've gone for the other areas first, by the way—please take this back to any authorities affected—is simply because we've done deep dives into areas that vary from very rural areas in mid Wales, areas in north Wales, areas around Welsh language provision, areas in deep valleys, understanding the cultural and the economic impacts. So, we've held back a little bit from going into what we know is an obvious challenge within the more expensive areas of provision. But it's coming, it's imminent, and we'll learn the lessons from it. And do you know, you may be right? And if you are right, that it's more expensive, and we need a higher rate within those areas, then we're going to have to come back and discuss it with the committee. lynne neagle am: Just before I bring David in on the issue that Hefin raised about the chargeable items, your paper says that providers can charge up to £7.50 a day for food, snacks, transport and consumables such as nappies. Now, that's £37.50 a week, which is a lot of money for parents, and I just wondered if you wanted to comment on that figure? But also, do you think there's a risk that providers who maybe aren't charging at the moment may start charging because of any new pressures that arise because of this scheme? huw irranca-davies am: I think they're the right areas to flag up, and if I thought that was going to happen I'd be concerned as we take this forward and design this scheme. I think part of the evaluation from Arad will also show us that—whether or not, within the pilot areas that we are already in, which are quite diverse, that is happening. We're only one term into learning the lessons, by the way, but I would want to make sure that we design a scheme where we are not heaping on disadvantage or where there was exploitation of disadvantaged families. I think also, by the way, that providers know that this is a collaborative effort to do this here. It's not in their interests, I have to say, as the umbrella bodies or individual providers, to see this as some way that they can unduly rake in additional income from this on the backs of poorer families. But especially, I have to say, the early evaluation that we've seen already suggests that the greatest proportion of those who are taking advantage of this scheme in the early parts—in the early evaluation—are those who are below the average working wage within in Wales. That's by far the greatest number of people who are doing it, and we don't want them then being priced out because of add-ons. So, there has to be some pragmatism, I have to say, and some open partnership working here with the sector, and we do have that. john griffiths am: I want to come back to the £4.50 rate, but in terms of working with the sector, briefly, if I might, Chair, I just wonder, Huw, in terms of that £4.50 figure and understanding the sector in Wales, to what extent are we talking about a market rate and to what extent are we talking about the increase in demand that will come from the scheme and how that relates to economies of scale and capacity? Is it purely a market rate or is there a conversation with the sector in terms of the benefits that will come from this scheme and how they should be recognised in terms of setting the rate? huw irranca-davies am: This has been a very open dialogue with the sector around affordability, around the hourly rate and around what might happen in future as well. This is not a pure hard data-driven analysis that says, 'Here we've calculated everything and this is the rate that will satisfy it', because we recognise that there's great diversity in provision out there, and we also recognise that things will change over time. I think we need to, as we take this scheme forward and look at the full roll-out, continue in that very open dialogue with the sector not about what is purely a market-driven amount but actually what is also affordable for the Welsh Government within the constraints that we have. Just to flag up one issue, it's right that we're focusing on those elements that aren't included within it, to some extent as well, and the effect of that on more disadvantaged families, but that has to be balanced with the pocket of affordability for this scheme as well. Let me give you a clear illustration: some of our calculations have suggested that if we included free food within this offer as well, it would add something like in the region of 50p to that £4.50 rate. That would have, at this moment, impacts on the affordability of this and the roll-out of it. I would need to be going back to my seniors and arguing the case now, okay? But, it's that open dialogue with the sector that says, 'There's one thing about what you're saying you demand as a market; there's another thing about what we're saying that we have affordability from taxpayers' money to actually put into this'. They also understand, John, that as well as an enabling policy—and we're seeing the evidence, by the way; I can cite it—of individuals who are being helped into more flexible options to get back into work, increase their hours and so on, this is also about building capacity in a fundamental foundation sector that is in every single part of Wales. The sector itself understands that if we boost the childcare offer in all its diversity, including, by the way, not just the independent sector but social enterprises and third-sector organisations, such as exist in Neath and elsewhere that I was involved in 20 or 30-odd years ago setting up—that has an economic impact that goes beyond that immediate family who are receiving the provision to the wider communities as well. So, it's an open dialogue on what the rate should be rather than purely, 'Our wonks have crunched the numbers and we've come up with £4.50.' lynne neagle am: David, you had a question on the pilots. Before I go to my question, I want to come back to Mark Reckless's question and the answer you gave. I got the impression that if there is a need to look at different rates because of the higher-end areas, you may therefore have different sets of rates and not a universal rate. Is that also on the cards? huw irranca-davies am: David, it's possible. I think our preference would be, I have to say, to stick with the universal rate, because we know it's—. One of the defining hallmarks of the way that we've taken this scheme forward is learning in live time as we pilot and expand the pilots into different areas and different types of provision. If we learn lessons from that that suggest we need to come back and look at a differential in more-expensive-to-provide areas, then we'll have to look at that, but there might be other ways of splicing it. We might find, Mark, we might find, David, that we go in and when everything is tallied up, the £4.50 per hour works in supporting provision there. If I can now remind you: I don't remember the word 'affordability' coming in the manifesto pledge of the Government. In the situation regarding Welsh-medium, you answered that a little bit earlier, but I have concerns about capacity. There's clearly a need to get more staff, because in your own paper you say that the report in 2016 said you do not have the childcare capacity in Wales at the moment. Do you believe that you can actually deliver the workforce to meet that capacity, first of all through the English medium, but secondly through the Welsh medium as well? Because there's a clear need to look at it. Do you actually think you've got that workforce capacity set up before this is fully rolled out? huw irranca-davies am: I hope, Chair, you'll appreciate that in our submission to you we've been very open. We have confidence that we can do this if everybody is working together across the sector, across the local authorities. Let me talk broadly about capacity, first of all, including English and Welsh-medium provision for children with complex needs, provision for children with disabilities—all of this. The work that we're doing to increase both capacity in terms of trained staff and qualified staff: we have the 10-year plan that I mentioned, which has already been announced. So, we're identifying not only broadly at a national level where we need to develop those qualifications, but also at a regional, geographic level as well, and that's being taken forward. As you can see from what I've said before, it's rolling out progressively, but with all 22 authorities we're working with them on their childcare sufficiency assessments to identify where their shortages are. david rees am: What have the pilot programmes actually shown you about this, and how are you going to move this forward? huw irranca-davies am: Well, it's precisely that. So, within the pilot areas, we have a greater depth of analysis now of where both the workforce and the physical provisions are. Whether those are maintained or non-maintained or third sector or school facilities or whatever, we've got a much deeper granulation of identifying where that is, and we're working, then, with those authorities, with the capital moneys that we've allocated to this and the workforce development, and with local colleges, to develop the workforce and the physical constraints. But we're also doing that with the other 22, with all the 22 authorities as well, in anticipation of the wider roll-out. And by the way, it's not only the Cardiffs and the Newports; it's all the other ones where there isn't full roll-out. We're engaged with them deeply at the moment with that analysis on their childcare sufficiency assessments, both in terms of workforce, but also physical provision. It doesn't mean, by the way, that we exclude the third sector or social enterprise approach, or the independent sector, but co-location could be key to the roll-out of this in the right areas where it can be done, because then we avoid any fracture between the education hours and the childcare hours: the physical transportation of children from one location to another. So, we're engaged with the 22 authorities on that: where could that be developed, who would be the providers that would do it and do they have the workforce to scale up to do it? If not, how do they talk to local colleges to do that? So, we're doing that at the moment. I mentioned we've put the £1 million additional funding into the meithrin over the next two years, targeting 40 new Welsh-medium groups by 2021, which pretty much coincides with the full roll-out of this. So, all of those things, David, give us a confidence that we're going to be in the right place. david rees am: But in particular, take the Welsh language—I understand Gwynedd, and I won't ask another question on that for obvious reasons at this point in time—but in some of the other areas where you've piloted, you've gone partial in some areas. When there's Welsh language education, and the three to five-year-olds go to schools, they go from all areas of the council, basically. They don't actually go necessarily from the local area, and therefore you're getting a different picture. Have you been able to assess the actual impact, properly, upon the Welsh-medium side of things? Because, for example, my grandchildren will go from my area, which may not be in one of the considerations, to a school that may be in that consideration, and that happens regularly. We know that historically we've got, across the country, a shortage of Welsh-language childcare provision—meithrin and so on—but we have not only a strategy in place, but the fact that we've got local authorities now doing their own assessments within their area, across the piste of childcare, but also in terms of Welsh language, that means then that we can start filling those gaps with the money we've put to it, and that includes in all parts of Wales, including those areas within south Wales and others that are less deep in their tradition of speaking Welsh over recent history, anyway, but where the demand for it is massive. So, local authorities are tasked with doing their own assessments of childcare sufficiency for this childcare offer. They're identifying the gaps, David, and we will work with them and with providers to fill those gaps, and that includes with the umbrella organisations for Welsh language childcare provision. And this does mean, Chair, that it will be different, as it currently is in different areas: the type of provision, where the provision is located. This offer won't happen unless the provision is there for those children with complex needs, children with disabilities, Welsh language provision, as well as more generic provision as well, but it will be diverse in its provision around areas. lynne neagle am: I do want to move on now, John, so if I can come back to your question. llyr gruffydd am: I would like to pick up on the last point, if I may. A question from me though, the wider question, is: how do we mainstream Welsh medium into childcare? Because, clearly, leaving it to meithrin is one way of doing it, but there's a lot of existing infrastructure out there that we need to upskill in terms of the provision of Welsh medium. So, it's not a question as such, but I'm sure you recognise that—that there is a challenge there. Because if we are to get to where we want to get to, it isn't about growing meithrin, or Mudiad Ysgolion Meithrin; it's about mainstreaming Welsh-medium provision within the wider sector. So, looking at the manifesto commitment that was made in 2016, clearly the main or the principal aim of this policy is around removing some of the barriers to secure employment for parents, albeit with very positive outcomes for the children themselves, and we don't ignore or neglect that at any cost. But I'm just wondering: how would you then reconcile that with the findings of the Public Policy Institute for Wales report, which I mentioned to you yesterday, which was commissioned by the Government to look at policy options in this context, which concluded that there will be no 'substantial impacts on net income, poverty or work behaviour for families with children' and that 'the impact on work participation and work hours for mothers in families with a child of target age is extremely small'? huw irranca-davies am: Well, the first thing I would say is that what we're learning from the pilots is that it is having real-life impacts on parents, including in disadvantaged families, and we're having this fed back from real-life situations on the ground, where parents are making different choices in the areas where it's being piloted. So, the types of different choices they're making could be to expand the number of hours that they're in work, because they now have a choice, they're not constrained to certain hours or whatever, they have a wider choice, with a wider number of providers, and they're making that decision and they're able to expand their hours. Some, by the way, Llyr, I have to say—and, again, these are real-life situations—are saying, 'What we're doing is not expanding our hours, but, because of the increased provision of childcare and the increased offer, we are now able to actually spend more time with our children, because we're adjusting our hours of work, based on the childcare provision offer.' That in itself, I have to say, is a worthy aim. But I would say what we found out, in real-life examples—I'm not saying that in direct contrast to what that paper was saying— llyr gruffydd am: That's what I was going to ask; it sounds as if you're saying they were wrong. huw irranca-davies am: But what we have is the advantage of this phased roll-out, where we are learning, live time, and I think the Arad report in October—we're hoping to see the final report in October—will help put some flesh on this as well. It is already having an effect: the majority of parents who are taking advantage of this are actually in those groups that are below the average wage, they are making positive choices to get into this offer and to either expand, take more hours, adjust their own lifestyles around it or more. I can cite to you examples, because I've asked my own officials on this, of families who tell us they're saving up to £250 a week on the basis of this offer within the pilot areas, who've increased their hours of employment, who've changed their working patterns to suit their work life, but also to suit their families. llyr gruffydd am: So, in effect, you are saying that the PPIW report got it wrong, basically. huw irranca-davies am: No, I'm not saying that they got it wrong and it's wholly wrong, but it is interesting, within that report, that it did identify that there were a range of factors here that play upon this. It's not only the childcare; it is the transport, it's the training and education, it's the employment support and all of those. And we agree with that, but we do think, and what we're seeing, live time, at the moment—maybe at some point, somebody else will produce a report beyond the Arad report in October that will say, 'Well, actually, the way this is designed, that they've done it in Wales, is having a material effect on those families, particularly the most disadvantaged families.' llyr gruffydd am: But you're asking us to support a Bill here, albeit a framework Bill, to achieve a policy aim where you're giving us anecdotal evidence that it's having an impact, contrary to research that's previously been done, albeit with promises that, maybe, an evaluation sometime in the autumn might tell us a different story. huw irranca-davies am: We know, and we are constantly told—I'm sure this is commonplace in constituency surgeries, as well—by parents who say that the biggest mitigating factor for them, actually, either going into work at an earlier opportunity or expanding their hours is purely the cost of childcare in front of them. I think our further reports, both Arad and as we go forward with the pilots, will substantiate this more. It'll go beyond the anecdotal, it will show that parents are having an enhanced opportunity to balance their work life, to make better choices, either in terms of expanding the number of hours they're working and increasing their disposable income within their families, or actually making it simply better for them in their family situation, where they don't currently have that offer. So, I get the fact that we have one report out there, but it's one report. It's a report, and we're not dismissing it entirely, but what we are saying is: we are now working with real-life piloting of an offer, and we are seeing the benefits coming through. As we roll this out, we'll be back in front of this committee saying, 'Well, this is now what we're finding. We can go beyond the real-life stories that I'm relating to you now, and we can say, "Well, here's some hard data that goes with this, as well."' llyr gruffydd am: Okay. You reference in your paper, as well, another report, which is the Organisation for Economic Co-operation and Development report, 'Starting Strong 2017', and it highlights countries that have, maybe, the most similar childcare offer to what's being proposed here in Wales. I'm just wondering what assessment you've made of those similarities, because, clearly, there'll be different economic contexts in different countries and different levels of public expenditure, et cetera. huw irranca-davies am: We haven't done really detailed analysis of comparisons with other countries far from Wales, but we will be doing work that will be doing some benchmarking against, where we can find similar models, where appropriate—do some appropriate benchmarking. What we have been doing is looking at what's been happening across the border in England and trying to learn from the lessons there, and also the offer in Scotland as well, which are both close to hand. But we will do some work, Llyr, around benchmarking against good comparative international examples, where appropriate. llyr gruffydd am: Yes, there we are, because one of my concerns was that the focus in a number of the countries in the OECD report are for nought to three-year-olds, whereas, of course, the policy focus here is for a slightly older age group. huw irranca-davies am: Yes, and I fully get that, but again, and I know it can be said, 'Well, this is an example' but it's real-life examples. We are having people who are telling us that they're now making the choice to go to work earlier because this is extended to three-year-olds, but they would have delayed. There is a direct outcome there if this childcare offer enables somebody to say, 'Well, I'm going to go a year earlier back into work and bring income into the family.' llyr gruffydd am: Okay. So, moving on, then, to the impact on the child and this whole question around school readiness, of course, which is an important one to address. Clearly, one of the main outcomes of this policy will be the academic performance of children, hopefully, later on in life. I want to come back to this point that the Children's Commissioner for Wales and others have raised: the concern that, actually, the most disadvantaged—those from workless households—are being excluded from this policy. Isn't there therefore a risk that they'll be left even further behind? huw irranca-davies am: I've had long, detailed and positive discussions with the children's commissioner on this, and I know the children's commissioner would want a more universal offer, but I make two points on that: one is, that was not what the commitment in the manifesto was, and it's not the offer that's being taken forward now. It is a different thing, a universal offer, and there are issues around that with complexity, and also affordability. But it isn't the offer that we took forward into Government; this is what we're taking forward. I'd say two significant things on it: one is, this doesn't stand alone purely as 30 hours of childcare. Within this, there are 10 hours of the foundation years, educational input, which is there for everybody. But before that, particularly for those disadvantaged families, before we even get to that stage, you have schemes such as Flying Start, and I know this committee has looked in detail at Flying Start and has said that it would like to see it rolled out everywhere. If I had all the money under the sun, I would really do that, Chair; I would really do it. huw irranca-davies am: Yes, but the fact that Flying Start, we know, is leading to those outcomes where those children, in quite challenged circumstances very often, are more ready to step up to the foundation year, are more ready, then, to step through into mainstream education in later years—those things tie together. So, there are the 10 hours of education provision that sits here for every family, by the way, within this offer, let alone the childcare. That doesn't mean that everybody's excluded, but it does mean, yes, that this offer is focused on working parents. In fact, it does overlap with other offers that other political parties were taking forward into the last election, which was focusing on how we support the biggest thing that we often have in our constituency mailbags, which is, 'I can't afford to go back to work because I can't afford the childcare. Don't tell me to go back to work, I can't afford it.' llyr gruffydd am: The majority of disadvantaged children don't live in Flying Start areas, do they? huw irranca-davies am: Yes, indeed. llyr gruffydd am: So, there's a missing cohort there that can't access one or the other, and the school readiness gap is growing, and, really, are we focusing our resources in the right place here? huw irranca-davies am: Well, yes, in terms of this scheme, but it doesn't sit alone as this scheme—it's the wider plethora of, I have to say, progressive and advanced initiatives that we have in Wales that take different forms. It's not only Flying Start that provides that other support for parents, and readiness not only for the parents and for their children, but also the support into work. So, if, for example, you look at the Parents, Childcare and Employment programme, which is separate from this, there is support there for every parent in terms of helping them get supported into work from disadvantaged families. If you look at the support for the children, we've got the 10 hours that sits within the sphere of the education, but we've also got all the other family intervention programmes that help with socialisation, education and so on and so forth. If you look at this solely on its own and say, 'Well, there is nothing else there; the rest of Wales is a desert and there's no support for parents, for getting parents back into work or for those parents who are not seeking to go back into work but also need the support and for their children in education', I'd be worried. But, actually, this fits as part of the jigsaw that we have in Wales, where I think we are well ahead of the other nations. Yes, we could do more, and I always say, Llyr; I always say, Chair, that if I had—I don't have a chequebook at all, because it's not in my gift—if I had a blank cheque I'd do a lot more, but we don't. But what we can do is get the right schemes in place, and if this helps drive more choices for working parents, including, by the way—. There are niceties within this as well; it doesn't have to be that both parents are working. darren millar am: I am surprised by the answer there, particularly given that one of the ambitions of the Government is to close this attainment gap later in life when schoolchildren get to their examinations, when they're 16 years old. Yet this appears to be driving a bigger wedge in terms of development, which could, of course, lead to a perverse outcome later on in life, but I don't want to ask you about that. If I can just very quickly ask you: has consideration been given to making free childcare available to parents where they're in 16 hours or more of education each week? So, they may not be entering the labour market, but, of course, one of those barriers to them getting back into the labour market could well be their education, so what arrangements are in place there? huw irranca-davies am: Darren, we have considered it, and we haven't included it within the scheme because this is designed to enable parents to go into work, not into training to enable them to get into work. There are other forms of support available for parents in terms of college and so on and so forth, but it's not this scheme. darren millar am: But it's not prescribed support, is it? You know, it's not universally available to people who might be wanting to get back into the labour market over that barrier. You must have done some costings, then, if you've considered it, and you must have tried to identify numbers. huw irranca-davies am: We haven't— darren millar am: So, you haven't considered it that much, have you? huw irranca-davies am: We have actually considered—. We consider it from the point of, 'What is this scheme set up to do?' It's very clear. But, very specifically, when you say you've considered it, what you mean is you thought about it but you've not costed it, you've not identified the numbers that might be involved— huw irranca-davies am: Absolutely, absolutely. darren millar am: And therefore you've not considered whether it might be affordable in addition to the policy objective that this is trying to meet. huw irranca-davies am: No, Darren, you're right: we haven't considered affordability because we've considered it on first principles to do with what this offer is trying to do. It doesn't fit within the offer so, as such, why would we do the costings? darren millar am: Perhaps I can frame my question in another way. Are you prepared to consider it if you're able to identify the numbers and potential cost? huw irranca-davies am: Ah, right, okay. We'd be interested in your thoughts as a committee, but it doesn't actually fit within the first principles of what the scheme is designed to do. Darren, can I just pick up on your point, in case you misinterpreted what I was saying to Llyr? I drew attention in my answer to Llyr to schemes such as the PaCE scheme. In Gwynedd, one of our pilot areas, they are combining the Team Around the Family with this childcare offer. It is not the case, as you've suggested then, that there is somehow more disadvantage being heaped on other families. What this does is tie in in those pilot areas with the existing provision, and that's the way we want to see it work. So, I wouldn't want you to be under any misapprehension that this makes conditions worse for families. Those families who have a registered carer in them where one parent works, and those families who have somebody on incapacity benefit will qualify for the scheme. All families will qualify for the 10 hours of education. In Gwynedd, they're wrapping the Team Around the Family with this offer— darren millar am: But on the other hand, Minister, you've also suggested that this will accelerate child development for those kids who are able to access it, and yet not all kids will be able to access it, particularly those from disadvantaged backgrounds. huw irranca-davies am: But all children can access the 10 hours, and they can access Flying Start— darren millar am: But 10 hours is very different to 30 hours, is it not? huw irranca-davies am: Yes, but they can access Flying Start or they can access the Team Around the Family— darren millar am: If they're in a Flying Start area. huw irranca-davies am: —or they can be in a children's zone area or they can— darren millar am: If they're in those areas. lynne neagle am: Right, I've got John and then David, and the questions and answers are going to have to be brief, please. In terms of child development and how this fits with wider Welsh Government strategy, Huw, I'd be interested in what you'd have to say about the quality of childcare. We're talking a lot about quantity, but obviously we want to up quality, and that's recognised by Welsh Government. I just wonder how that sits within the £4.50, because there could be pressures in the opposite direction there, and some tension between wanting to up the qualifications and quality of workforce whilst keeping affordability in place. huw irranca-davies am: John, you're absolutely right, and two things on that: I visited one of the facilities in the Valleys the other day that was taking this forward—a very good independent sector-run childcare provision, with Welsh language and English language running alongside each other, and I asked the point about the integration, curiously, but what they were doing was—. Their standard of staff was an exemplar of what we'd want to see: not only very well-qualified childcare staff who were qualified within not simply the child-minding but the wider child development aspects—. So, it was hard to differentiate, in some ways, what was happening there from what would be happening in a child development educational surrounding, and including the nutritional stuff and all of that. Now, that is the model we need to see, and the £4.50 seems to work, at the moment, for that. But the quality, I think, is key, and that's why we're focused very much on registered inspected providers, as opposed to every Tom, Dick and Harriet. john griffiths am: If we want to increase salary levels, though, which I think is a necessary part of this picture of improving quality, then obviously that might impact on the £4.50 rate. huw irranca-davies am: Yes, indeed, and we are cognisant—. It's interesting that we focus on whether the £4.50 is affordable, but the £4.50—you know, we're having an interesting discussion internally about how that £4.50 offer per hour sits alongside others, such as the foundation phase offer, and it's more generous. So, I think it's: how do we align, as time goes by, the child development aspects of the whole early years stuff? Now, we're doing some fascinating work that I think I've referred to on this committee before about aligning the early years development entirely. Now, this is an evolving piece of work, but I think the childcare offer should ultimately fit within that. How do you make sure that every offer that is Government-funded works on child development? It's not simply childcare. mark reckless am: In terms of child development and not accentuating disadvantage, another area where this may apply is the kids who are born in the summer term, compared to those who are born in Michaelmas. There's a lot of evidence to suggest that they start with a disadvantage at school and often don't make that up, even as they go through school. What is the rationale for providing the older children with five terms of this, compared to three terms for the younger children who already have the relative disadvantage? huw irranca-davies am: I'm looking to my colleagues here and— jo-anne daniels: Well, the criteria for eligibility for the offer are the term after the child's third birthday, which is equivalent to the eligibility criteria for the foundation phase early education offer. Clearly, then, the number of terms that a child is able to, or parents are able to, access the childcare offer will be influenced by when the child is born, but I think you may be referring to a sort of parallel question, which is about whether—. There have been questions raised about whether children who are summer-born should, in fact, start school in the term after they turn four, or whether actually they should be allowed the flexibility to start school at a later age, which I know is something that has been tested in England, and there is some mixed evidence about school starting age and the birth month of children. That's the compulsory school— jo-anne daniels: Well, that's the legal position, but, obviously, in practice, most children will start school in the term after they're four. mark reckless am: So, given the disadvantage we know that the younger children born in the summer have, relative to the older ones, why accentuate that by giving the older kids five terms of this project, which you tell us will have such positive effects on their child development, but the summer kids only get three? Doesn't that make the situation worse? jo-anne daniels: I'm not 100 per cent sure I understand the question. So, children will stop being in receipt of the childcare offer once they become eligible for a full-time school place, and most children will become eligible for a full-time school place in the term after their fourth birthday. mark reckless am: But the older kids become eligible for this five terms before they start school, where the younger kids, who're already disadvantaged, become eligible for it only three terms before, accentuating the problem, surely. Could more thought be given to this issue? huw irranca-davies am: We'll take that away. Minister, you got, or Welsh Government, really, got the Public Policy Institute for Wales to study this proposed policy and they concluded that it would have no substantial impacts on net income, poverty or work behaviour for families with children, and that the impact on work participation and work hours for mothers and families with a child of target age is extremely small. What do you say to that? huw irranca-davies am: Well, Mark, I can only refer to what I said earlier. Our real-life evidence that is accumulating now is showing us examples of where people are making savings and increasing disposable income—as I mentioned earlier, up to £250 per week within some poorer households; so, real-life examples—but also where it's enabling them to make much better choices about when they work because there's more childcare offer available, or, alternatively, to work their childcare provision and their working hours around being able to spend more time with their children, which they currently can't do. lynne neagle am: And I don't want to go back over Llyr's questions. They said if you had a work requirement, as you do, it would cost £61 million a year on their numbers, substantially less than you're saying, and then they said it would cost £144 million without a work requirement. Now, that implies to me that 57 per cent of the parents wouldn't be working and would continue not working even if there is this available with a work requirement. , are those numbers really credible from PPIW? huw irranca-davies am: It's not quite comparing like with like. Just to draw your attention, Mark, and the committee's attention to that the PPIW analysis was looking at a provision of 38 weeks. And the fact that we are having parents already saying to us that their ability to actually extend that into the 48 weeks—beyond the term time and so on—carries advantages that are not picked up in that report. mark reckless am: And what is your early assessment of the income levels of families who are finding this offer most attractive? huw irranca-davies am: I think, from recollection, we're one term in, so we're one term into the assessment, and I mentioned earlier that the majority of parents are below the average income of £26,000 in Wales— it's around about 60 per cent of families are those. It's disproportionately towards those below the average income, and many of them amongst the most disadvantaged families are opting in to this offer where it is being offered. mark reckless am: And what consideration have you given to integrating this Welsh Government offer with the UK Government offer of tax-free childcare that's applicable across the UK? huw irranca-davies am: Well, that offer, as you rightly say, is available across the UK and still is. The fact that it's more integrated within their scheme within England—the tax offer is more integrated—has caused them some problems in complexity and in the administration of this and the digital platforms that they've had. That offer is still available in Wales and it might well be that parents who opt in to that say, 'Well, we do want to buy additional hours beyond the 30 hours', but this 30 hours is there for every— mark reckless am: I wonder, Minister, whether what you're doing, in a very good way, to promote your project—people will see that as the childcare offer and, at least in my experience, very few parents are aware of the tax-free childcare on a UK basis. That's absolutely one of the lessons we've learnt from even this early stage of the early implementers, because there are elements of a childcare offer within the tax offer, within universal credit, within working tax credit. So, one of the lessons that we've learnt from the Talk Childcare communication strategy alongside this is the importance of communicating to parents and providers who the parents go to what is best for them to access, how they access it easily, and we'll learn more as these pilots roll by. mark reckless am: So, as you go into the Her Majesty's Revenue and Customs criteria—you have a £100,000 cap, as well as the £6,000 minimum wage cap, and you're getting HMRC to say whether people are eligible, which requires them to set up that account with HMRC—will you assure this committee that you will make sure that parents who are doing that are aware of the UK tax-free childcare offer, and that their providers also are? Because we've been looking, say, at the £7.50 extra per day, but, if someone's eligible for this offer, they should also be eligible for the UK tax-free childcare offer and have set up the account to do that. So, will you make sure that those parents know to pay their provider out of tax-free funds, rather than paying them the fully taxed amounts, which might otherwise happen? huw irranca-davies am: Yes, absolutely. owain lloyd: Yes, just to say, as I understand how things currently work with the English offer and TFC, when a parent applies, that automatically happens in terms of, on the one hand, they're given a 'yes' or 'no' in terms of their eligibility for the 30-hours offer in England, but they will also be told in terms of the parental account that's set up under TFC. So, that is integrated in the offer, and we'll be looking to do the same in terms of the Welsh offer. But, obviously, what we're not looking at doing in terms of the 30-hours offer is the setting up of the parental account to make the payment; the payment currently is very much between local government and the provider directly, rather than the TFC model, where the parent pays the provider. Can I thank the Minister and the officials for attending? You are, of course, back with us on 16 May for Stage 1 of the Bill, so we will look forward to seeing you then. So, if Members are content, I'd suggest that we note all of them in a block, if that's okay. Can I propose, in accordance with Standing Order 17.42, that the committee resolves to meet in private for the remainder of the meeting? Are Members content? Okay<doc-sep>Item 2 this afternoon is our eleventh evidence session on the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill. I'm very pleased to welcome Barry Hughes, who is Chief Crown Prosecutor for Wales; Kwame Biney, who is senior policy advisor, CPS; and Iwan Jenkins, who is head of the complex casework unit, Crown Prosecution Service Cymru Wales. If you're happy, we'll go straight into questions from Members, and the first ones are from Siân Gwenllian. I would like to start just by looking in general at how the law currently stands, and how do you think the law as it currently stands today, and specifically in terms of reasonable punishment—how does that protect children. barry hughes: Sorry, can I just be clear? How does the law as it presently stands protect children? sian gwenllian am: Yes. barry hughes: We have a range of offences created by the criminal law, going back to the Offences Against the Person Act 1861 in the middle of the century before last, which provide for offences of assault against a variety of people, including, in particular, Acts such as the Children and Young Persons Act 1933, which provides for offences that are specific to children. But the more general criminal legislation, such as the Offences Against the Person Act, does provide specifically for adults and children alike not to be subject to physical assault. In respect of children in particular, you'll be aware that we have section 58 of the Children Act 2004, which does make it a defence for a person accused of assaulting a child to argue that it was a case where they were acting only so as to impose reasonable punishment upon the child. sian gwenllian am: Well, a review was undertaken by the Government back in 2007 that stated that retaining the law in its current form—that that would be the best thing to do because there's no evidence that it's not working satisfactorily. You are suggesting perhaps towards the end of your answer that there could be some change that's happened since 2007. barry hughes: I think the law should reflect contemporary society and the law is evolutionary in nature, and should be evolutionary in nature. And just as if we go back 50 years there are types of behaviour that we might all have contemplated back then as being socially acceptable, many of those types of behaviour are not now, and the law has changed to reflect that. We don't need to go back a very long way to find, for example, that there was no such offence as raping one's married wife, and the law has changed to reflect the fact that that is simply not acceptable. And from what I've seen of the research, and I think back to the 2007 review, to which you've just referred, there is evidence within that review already that opinions are changing. And I've seen research more current than that that suggests that young people find it less acceptable to use reasonable punishment in chastising a child than do people of an older generation. Of course, as we move forward in time, the people who are young now are going to be the older adults of the future. We have heard evidence as a committee that this proposed law would provide a much clearer legal framework—that is, to take out this reasonable punishment defence, that then would make things much clearer for parents and professionals. Does the CPS have a view on that? barry hughes: I think it will make things clearer. I'm not sure it will make them much clearer, because if we get into some of the—. And when it comes to prosecuting, it's often the case that things aren't just black and white; there are multiple shades of grey in between. We know that the Children Act did introduce a degree of clarity, in that it removed the defence of reasonable chastisement for offences of causing actual bodily harm, causing grievous bodily harm, causing grievous bodily harm with intent, and various incidents of child cruelty under the Children and Young Persons Act. There were a series of Court of Appeal cases that sought to clarify the law, but that was at a time, at the end of the 1990s, the start of the 2000s, when we had the European convention on human rights and we had a quickly developing body of case law. A decision was clearly made back then in the early 2000s not to include common assault in the same category as actual bodily harm, grievous bodily harm et cetera. As we wind forward some 15 years, I have seen the research that suggests that some people see that the present legislation, and the way in which section 58 applies to reasonable chastisement for common assault of children—some people have interpreted that as saying that smacking is acceptable. I don't think that it is what it says, but there is a degree of confusion around that. And the reason why I say it's not as simple as that is, going back to my words a couple of minutes ago, it's rarely a case of being black and white; there are these degrees of grey. sian gwenllian am: What are the areas of grey that you refer to? Can you give a few examples? barry hughes: If you take an example—so, one of the examples that I've heard discussed has been a child—a young child; let's say a five-year-old child by the side of a road—who darts to go out in the path of moving traffic. Now, technically, taking hold of the child at that point is an assault, because it's an unwanted imposition of physical force. But no-one's going to say that's anything like an assault that should come to the criminal courts. At that point, the parent then seeks to admonish the child, tells them off and smacks the child on the legs. But so much depends upon the circumstances, whether this is something that happens frequently with the child, the size of the child, the parent, the force of the slap, the way in which it's imposed. As we move towards the other end of the spectrum, we might have repeated smacking, shouting, maybe hitting the child over the head as well. There'll be a point at which it crosses the threshold from something that needs to be reported to the police, and the police would take some form of action, and then, as we move through the tiers, it'll reach a stage where the police think this is a case that should be prosecuted and they would bring it to the Crown Prosecution Service for a charging decision. And the absolute other end of the spectrum here is one where we decide it's an offence that we think is so serious that it should be charged and brought before a criminal court. That would be very much towards the serious end of the spectrum of the type of behaviour that I've just described to you. Does that help to illustrate that, at one end, it's relatively white and the other end it's relatively black, but in the middle we have the shades of grey? sian gwenllian am: But that would mean that there could be more prosecutions at the softer end. So, you are probably aware, but forgive me if I just explain quickly anyway, when we approach a file of material evidence submitted by the police we apply the code for Crown prosecutors, which has a two-stage test. The first stage is whether there's sufficient evidence to provide a realistic prospect of conviction, and the second stage is—. If there isn't enough evidence, we don't go on to consider whether it's in the public interest, because we wouldn't put an offence before the courts if we didn't think there was a realistic prospect of conviction. So, to return to the point, if we have an offence where, let's say, there is a light smack at the time, the police apply the same code before they bring a case to us. We don't always agree with the police; generally we do, but we don't always agree. So, if a police officer takes witness statements in relation to that case—the light smacking on the leg—at present it's unlikely that would come to the CPS, because they would look at it and say, 'Reasonable chastisement provides for a defence.' If that defence is removed, then obviously there is a greater possibility that it would be referred to the CPS. I would like to think—and I think this is what will probably happen in practice—that the police would take a view that the evidential test may have been satisfied because the defence had been removed, but it wouldn't be in the public interest to prosecute. It may be that the police decide that it is—it may have been two smacks, three smacks, so it moves towards the end of the spectrum that would suggest that matters are becoming rather more serious. We would then apply independently the same test, and we would probably conclude that the evidential stage was met in that instance because the defence no longer exists, which takes us on to considering the public interest. In the circumstances that I've described, every case is going to be unique on its own facts, but in the circumstances that I've described, if it is just a light smack and it's a one-off and there's no history of this, it would probably be the sort of offence we'd decide it wouldn't be in the public interest to prosecute. sian gwenllian am: But isn't it creating a new grey area in terms of the police now having to decide whether repeated smacking is in the public interest to at least refer it to you to decide about that? Do you know what I'm saying? barry hughes: If this Bill goes through, then it will remove a defence, which will make it likely that the police will give this more consideration for referral to the CPS than beforehand, but it doesn't necessarily mean they will refer it, because it will depend on the facts of each individual case. lynne neagle am: We've got some questions now on the divergence between the law in England and Wales from Dawn Bowden. The Assembly doesn't have any legislative competence to impose duties on the CPS, as you know, in the absence of the Secretary of State's consent. What are the implications for implementing the Bill in Wales for that? barry hughes: Can I give you two examples? One of the implications is this—and it's fairly obvious but it's still worth stressing—that the removal of the defence would mean that there would be more cases that would pass the evidential stage in Wales than there would be in England, because the defence would still apply there. That, therefore, raises issues in particular in terms of awareness of criminal offending for people from England who travel to Wales, because it's fairly evident that there would be a defence available in England that is not available in Wales. One of the examples that we talked about was if you consider a family on its way from England into Wales, travelling to Barry Island for a holiday, and troublesome children in the back of the car, harsh words and a small smack on the leg delivered while they're on the M4 going past Bristol would be subject to a defence. By the time we come over to this side of the water, there would be no such defence for the same journey, for the same act. The second example that I'll give you is that we already have within the United Kingdom a certain degree of divergence of laws, and the example I'll give to you is this: drink driving. In England and Wales, the limit for having micrograms of alcohol in your breath is 35 µg in 100 ml of breath. As you drive into Scotland, you're probably okay to drive if you've got 34 µg; by the time you get into Scotland, you won't be. And the consequences for you are significant, because of course it's an offence in Scotland, and not an offence in England, but the punishment, namely disqualification, applies everywhere in the United Kingdom. So, we already have a degree of divergence of law, and the CPS recognises this. In our code, we have a specific provision that takes account of the potential divergence of Welsh law. So, would you see the necessity for a memorandum of understanding, for instance, or it being useful in these circumstances, or are you quite satisfied that the current guidance code would cover that? barry hughes: Well, it's yet to move from a Bill into an Act, so we'd need to make sure that happened. We know there would be a period of time, perhaps as much as two years, or maybe a little more, while that takes place. In terms of how we'd approach it within the Crown Prosecution Service in Cymru-Wales, my approach would be along the lines of working with Kwame and his colleagues to make sure that the guidance that we issue nationally suits both England and Wales. And when it comes to the practical application of the legislation in Wales, we would almost certainly work on the basis that the number of offences—and we might want to get into the number of potential offences, but my take on it is the number of offences is likely to be very small and we would probably have two or three specialists trained in this so that any case that comes through goes to people who've got a close network and can talk with each other— dawn bowden am: And that would be primarily around the public interest issue. So you're obviously a key stakeholder in terms of this legislation and you're clearly very au fait with it and all its implications. What's actually been your involvement with the Government as they've been developing this legislation? barry hughes: My own personal involvement? dawn bowden am: Or the service's. I met with a Minister and a Deputy Minister—I met with Huw Irranca-Davies a little while ago, and I met with Julie Morgan a few months ago—to discuss the overall implications, and then officials on both sides have been engaging with each other. It hasn't been a very close-knit involvement, but we have had enough involvement so that we've felt we've been able to offer views on how we would deal with the legislation. I don't feel that it's been too much, nor do I feel we've been left on the side at all. Now, we've just talked about the divergence of criminal law, and this is probably the first time that there's been an obvious divergence between English and Welsh law, and so we were then talking about the guidance, weren't we, and whether that needs amending to reflect it. But I think you were saying that you felt, within the existing guidance, it could be dealt with, so you don't see a need to update or amend the guidance. barry hughes: I think we would need to update the guidance, and it goes back to the application of the evidential stage, before the public interest stage. On the evidential stage, I doubt that we'll need to do much, other than to make people aware that the defence is not available in Wales in the same way that it is in England, and we might have some light-touch guidance around that. When it comes to the public interest stage, that's a little more specialist and I think we would need to develop more with respect to that. dawn bowden am: And are you satisfied that your staff in Wales—well, and in England, actually, across the border—will be sufficiently aware of the divergence in this area of law? barry hughes: Not as of the present day. [Laughter.] dawn bowden am: But you would expect that to be something you would— barry hughes: Yes, I have no doubt. To an extent, actually, I think I would say that staff in Wales are aware of this already, because in my role as chief Crown prosecutor, I publish a monthly blog and we talk about the things we're doing, so staff are aware. I've discussed with staff and they've seen my blog and we've put it on our website: there have been engagements with the Welsh Government that this is a piece of work in which we're interested and that is under way. I think most staff would probably be aware that we are involved in this and that it is something that, at present, may well happen. And does that mean that there would also be a similar need for the CPS in England to be aware of the changes? barry hughes: They would need to be aware, but not to the same extent. So, in my office in Cardiff, for example, because we work digitally, I have about 30 to 35 prosecutors who work for the CPS in London, and they work exclusively on London cases. But there are times when some of those prosecutors will prosecute at courts in Wales, and then there may be an interchange; they'll come to work for us on secondment, or they'll come to work for us permanently. We'd need to make sure that those people were brought up to speed on the fact that there are some aspects of Welsh law that diverge from English law. My final question, Chair, is just whether you think there are any other significant cross-border issues that arise from this potential legislation. It boils down to the fact that there's a defence in England for assaults upon children that isn't available in Wales if this Bill goes through, and then it's dealing with the consequences of that. Oh no, that's right—obviously, this Act is on a particular trajectory at the moment, and it's due to be introduced before the end of this Assembly. Do you think it would be better for us as scrutinisers of this Act if we could see the draft changes to CPS guidance on the public interest test before we make our final decision? barry hughes: I honestly don't think that would necessarily be helpful. What we would envisage is that we would simply want to take the present public interest factors, which are set out, in my view, very clearly in the code for Crown prosecutors, and we would provide a degree of detail around those that relates more specifically to the issues that we're discussing here. And we'd need to work that up as we go along, and I think you'd run a risk of putting the cart before the horse, if I may put it like that. suzy davies am: It's just that, personally, I think the public interest test is critical in all this, and it would really help us to understand what it could look like before we commit to a particular course of action in supporting or not supporting the Bill, that was all. sian gwenllian am: My point is about the criminal law in Wales and England diverging in this particular instance, and we've been told that this is probably the first time it's happened. Can you think of any other examples where that divergence has happened and does it actually set some kind of precedent in motion? barry hughes: There are other offences in Wales that don't exist in England, but they don't crop up very often. So, to give you examples, there is an offence of putting an electronic collar on your pet—let's not stretch that into children. But putting an electronic collar on your pet that administers a shock is an offence in Wales; it's not an offence in England. There are also offences around the picking of cockles in west Wales, which is not an offence—. So, you can see there are some, but I would argue that the fact that you drive across the border into Scotland and commit an offence that you won't commit in England is possibly more significant for the general public. Of course, the topic we're discussing here is of real relevance for the general public, and you have heard evidence, I know, already, that comes from people who are quite strongly in favour and people quite strongly against it. One of the ways in which I've approached this is looking at it from the perspective of what the law is there for, which is to set out, in essence, what is acceptable, what is not acceptable. It doesn't necessarily mean we need to use the law for that, but it signifies how society views a certain behaviour. I like to look at it from the perspective of the person who is being affected by this, namely the child, and the change in the law here would afford children a degree of protection that they don't presently have, but which they do have when they attain the age of 16.FootnoteLink So, I looked at this—. I've had considerable dealings over the years with offences against residents in care homes, and you'll have seen Winterbourne View, you'll have seen recently up in Durham, where we have adults who need to be looked after because of issues with their mental capacity, and sometimes, the carers become frustrated with them and they admonish them. In much the same way as children are vulnerable and are looked after and can be sometimes quite annoying—but there is a level of protection for an adult striking a child lightly under the present law that is not available to the same adult for striking that child when they turn 16. sian gwenllian am: Do you think that what we're doing in Wales will be emulated in England at some point? barry hughes: Well, it's certainly going through in parallel in Scotland, and there are a great many other countries around the world that already have this, including a large number of European countries. Who knows? Trying to get any legislation through Westminster at the moment—who knows? Not tomorrow, I'd say. Can I just begin by asking you to help the committee out here in understanding how the burden of proof is going to work if this defence is removed? Because the issue of whether something is punishment or not is going to disappear, providing that it's clear that contact with a child has happened. Is that going to work on the presumption that that's an unlawful contact? Is that something the prosecution will still have to prove, or will it be for an accused parent to say, to use your example, 'I was just dragging them out of the traffic or stopping them putting their hands in the fire'? barry hughes: I understand your point. So, if we remove the defence of reasonable chastisement, in a sense that alters some things but it doesn't alter the basic responsibility of the prosecution, which is to establish its case beyond a reasonable doubt. And if the defence raise an argument and say, 'Well, look, that was a lawful act; I was only doing what I thought was reasonable in the circumstances', it's for the Crown to disprove that. barry hughes: And we've got to disprove that to the criminal standard, which is beyond a reasonable doubt. I can see the potential for individuals who feel strongly about this to look to contest the matter, to not admit any wrongdoing at all and to take the matter to trial, and it would be our responsibility to disprove that. Obviously, when we're talking about CPS guidelines and all the rest, we've already come some distance down the process, haven't we? Have you got any views on what might be done to prevent cases even coming as far as arrest? Because one of the things that we have to consider is that once you're arrested, that is recorded somewhere and will appear in things like DBS checks in the future, even if it goes no further. Do you have any views on how intervention might work better earlier on, even at the point of the knock at the door? barry hughes: From the perspective of the CPS, I'm not sure I can help you there. Unlike in many other jurisdictions, we have no power whatsoever to direct the police, so if the police decide not to investigate—. I routinely get letters from members of the public outraged that the police have decided not to investigate their particular neighbour dispute or something, and they want us to do something about it and we can't. suzy davies am: Thank you for that, because I thought that was important to get on the record as well. We're looking at a period of a couple of years after this Act passes—if it does—for implementation. Is there anything at the moment that you think perhaps you still need to do as an organisation towards being in a position to practically implement this law? barry hughes: I think we need to maintain the type of dialogue that we've built up with the Welsh Government and colleagues there. We have other members of my staff who are involved in the other work streams that feed through to that, and I believe that that involvement will ensure that we are sufficiently interconnected; that we can liaise, in turn, with Kwame and his colleagues in the headquarters to respond to things as they develop. So, I think we've got a network of contacts built up here that is adequate for the purpose—at least, 'adequate' might sound a little— suzy davies am: Sufficient. suzy davies am: So, you're confident, by 2022, then, that you'll have changes to the CPS guidelines that are good to go, if you like. Bear with me a second—thank you very much—in your written evidence, you did welcome the indication from the Welsh Government that this reasonable period after Royal Assent would be necessary. Apart from the CPS guideline changes, which you'll be working through, is there anything else you think you might be needing to do apart from just keeping in touch? I'm just thinking: are there any practical and possibly financial implications for your workforce in this? barry hughes: If this legislation goes through, there will be minor financial consequences for us and I don't see any significant financial consequences in the period between now and the Bill becoming law other than the time of ourselves in discussing this today. And what about afterwards, then? Because one of the pieces of thinking behind this Act is to collect data to see whether this change in the law actually works. Do you want to talk us through a little bit about how that might affect you? I don't know who to ask on this. Well, I think that we are going to need to maintain a clear record of any cases that are referred to the CPS from the police and that will—. Normally, we do this through our case management system, which is England-and-Wales wide, and you'd put a flag on. So, for example, domestic abuse, there's a flag for that, and assault on a child, there's a flag for that. Trying to get that through on a system that covers all of England and Wales—it's quite expensive, unbelievably; it wouldn't happen. My take on it: I've seen and spoken with Matt Jukes about this, from South Wales Police; I have seen the justice impact assessment; I've seen the research that's been fed through from New Zealand; and I've seen our own response to a freedom of information request and the papers that the CPS put into the review that you mentioned earlier in 2007. I would be very surprised if we were to prosecute anything other than low single figures a year, if that much. We may have more referrals from the police, but I doubt it would be double the figure we prosecute, even. There are out-of-court disposals and there are all sorts of diversions that you will have discussed, and I know you've discussed, with the police and the police and crime commissioner. So, the numbers will be very small, which means we would be able to keep a clear track on those and, obviously, we would wish to keep the situation under review, and we'd reach a period of time after whatever—12, 18 months, maybe 24 months—where we'd look back to see how we are doing. And I'd like to think that we will be doing that in consultation with interested parties and stakeholders. So, for offences such as racially aggravated offending, whether it's criminal damage or offence against the person, we will bring together interested parties, by which  people from outside the CPS, quite often third sector agencies that represent vulnerable groups. That, in turn, helps us shape and improve the way that we prosecute these cases and I can foresee that, after this legislation came in, we might get 18 months, two years down the road, and I can see us sitting in a room with some of the cases we've prosecuted, maybe cases we've decided not to prosecute, with the police and interested parties from both sides, to have a discussion about how we're doing with it all. suzy davies am: That's really helpful to know because, of course, one of the difficulties of dealing with the culture change, which is what the Minister's effectively after here, is that we are still talking about it in the context of criminal legislation. And what I'm hearing from you is that the chances of somebody who's currently protected by the defence and is not part of a bigger case where there's serial smacking or other difficulties in a family, for example—the chances of them getting to you in the first place are pretty low, and then the chances of them passing even the current public interest tests are pretty low. In which case, my question is: why are we bothering with this law rather than concentrating on a new piece of law, possibly through the civil system, which would achieve the culture change better? Maybe that's not a question you feel that you can answer, but you can see why I'm asking the question. In other words, there is a greater degree of protection for children, and I think the value that would derive from this legislation is the message that it sends out. I go back to what I was saying to you right at the start, about the evolution of the law, and the way we've seen many other countries around the world adopt a very similar approach to that being proposed by the Welsh Government is, in my view, an evolution of the law. So, yes, there may not be many more prosecutions, but there won't be fewer than there are presently, because there's a greater degree of protection for children. lynne neagle am: Before we move on, can I just ask—? The Children Act 2004 applies to a child up to the age of 18— barry hughes: Sixteen. barry hughes: I'm reasonably confident that it's 16.FootnoteLink lynne neagle am: Okay. Is there anything else you'd like to put on record about the factors that the CPS would be taking into consideration when applying the public interest test in respect of this Bill? barry hughes: Can I give you an example, which might illustrate the way in which things could be different? This is one, which—I give credit to Iwan for this, because he thought of it. If we take an adult with a small child—say, a four-year-old—in a supermarket, and the child is pulling cans off the shelves, it's quite annoying, and they keep doing it and keep doing it. The parent remonstrates, and the parent ends up finding that verbal admonishment is inadequate, and smacks the child lightly on the legs, which does the trick and the child stops. Presently, if someone in that supermarket were to report that to the police, I think the police would probably conclude that that is covered by the defence of reasonable chastisement. In other words, the evidential stage wouldn't be passed; you don't get on to consider the public interest. But if we have that same parent in there the following week, and you have the same happen again, presently, the defence would apply. If that defence didn't apply at all, and we had a sequence of three offences, the public interest test would kick in, if I may put it like that, pretty quickly, because it would be repeated behaviour. So, that would be the distinction between how things are now and how they would be in the future, because the defence would not be available, so the public interest test would then come to the fore that much more quickly. So, when we apply the public interest test, the essence of it is about proportionality, and trying to come up with an approach that is proportionate to the offending. We look at the age of the offender, the age of the victim, we look at the circumstances, we look at the impact upon the victim, we look at the impact that's likely in relation to the suspect, and there is, within the code, a long list of matters that we take into account. If someone's got previous convictions for doing something wrong, it's more likely they're going to be prosecuted the next time. Mostly, it's reasonably obvious; the more serious an offence, the more likely you are to be prosecuted. vikki howells am: Thank you, that's really useful, and— lynne neagle am: Just before you move on, can I ask you a question? This morning the committee was meeting with groups of parents who are opposed to the Bill and groups of parents who are for the Bill, and one of the parents this morning was querying where the interests of the child would come into the public interest test. Can you just clarify for the record how the best interests of the child would be taken into account in considering whether to go forward with a prosecution? barry hughes: Normally, if there were an assault by someone else upon a child, outside the family, we would tend to take views from the parents of that child. In circumstances where both parents, arguably, are the suspects, we probably wouldn't be asking them. We would find another way, and we would talk with the police to ensure that we are informed about how the child feels about what has happened. I can foresee real difficulties in circumstances where we have parents who are separating where the children are being used, effectively, in divorce proceedings, for example, where we might have one parent saying there was a really bad impact upon the child and the other parent saying there wasn't. We'd want to find a way to cut through that to work out really from the police how does the child feel about that. So, we would tailor it to the circumstances of the particular incident to assess how the child feels about it. It's not determinative, nor is it determinative in cases where we prosecute for adult defendants inflicting some form of assault upon adult victims. In the same session this morning I thought this was an interesting question raised by a parent, on the rights of the child side of things, where if a parent offers a child two forms of punishment because that child has done something that they know they shouldn't have, and they're given the option of, 'You can have a quick smack and a cwtch, or you're going to your bedroom for quarter of an hour', and the child is allowed to choose and the child chooses the smack, what happens then? I'm not offering any views on the fact that this choice has been given, but it was put to us today about how would that fall in the law once it were changed. There is a body of law that— suzy davies am: A child can't consent to assault. barry hughes: Yes, you can't consent to a serious assault, apart from in certain—. So, for example, tattooing is a serious assault on one level, but you can consent to a tattoo. I can think of one case where a man branded his initials on a woman's buttocks, but she consented to it and the Court of Appeal held that they could consent to that. I can also think of a series of cases, which I won't get into here, that involve sadomasochistic behaviour between adults, some of which was really serious, and involved people willingly applying themselves to things that no sane person would do. And the Court of Appeal in that case, a case called Brown, said, 'No, that's going too far—you can't consent to that.' Then, you may have seen there was a case from the midlands recently where a gentleman operating a tattoo parlour was also involved in body surgery—splitting people's tongues. So, there is again—I referred before to the spectrum of offending, and there is a clear spectrum of offending that you can realistically consent to and then you get to offending you can't consent to. When it comes to much lesser assaults, the law is more unclear as to what you can consent to. I've got one further series of questions around out-of-court disposals, which you've already mentioned briefly. In your written evidence, you say there's ongoing work exploring diversion rather than prosecution in respect of this Bill. Firstly, could you tell us a bit more about the work that is being done to explore this as an option? barry hughes: We've been working with the National Police Chiefs' Council. She is responsible for developing the police approach to out-of-court disposals and simplifying the range of out-of-court disposals. There is quite a range, and life would be simpler and clearer to have fewer types of disposal with more clarity about what each one of them involved. I must say, this is primarily a matter for the police, because there are a great many offences or reports of crime that do not reach the CPS because they are dealt with by way of an out-of-court disposal. There's a document called the director's guidance on charging, which is issued by the director of public prosecutions, which sets out offences the police may charge and offences the CPS may charge. Offences that the police refer to us for a charging decision will generally be offences where they feel that there should be a prosecution rather than an out-of-court disposal. There may be cases where it's genuinely very difficult to assess what's the best approach, in which case we will have a conversation with them, a meaningful conversation, about what's the best way to approach that particular case. There will also be cases, and we see these not that rarely, where the police will bring a case to us for a prosecution on the basis that satisfies the evidential stage and satisfies the public interest stage, and we take a different view on the public interest stage. So, we might say—for example, it involves a 15-year-old youth—we  think that diversion from the criminal justice system is a better disposal and we decide not to prosecute. We aren't responsible for administering the out-of-court disposal or indeed monitoring compliance with that disposal, if, for example, it has conditions attached, such as repayment of the damage caused to a window or a front gate. That's not our responsibility—that will fall to the police—but we can decide that an out-of-court disposal is a more appropriate disposal than a prosecution. One final question on that then: creating a body of out-of-court disposals that are specific to this Bill—how would that actually work in practice do you think, given the fact that the Assembly's legislative competence to make provision on the face of the Bill is limited? barry hughes: The way I might see it is that, clearly, policing's not devolved, the CPS is not devolved—the way I might see this is that, within Wales, you could build an infrastructure that provides for a range of out-of-court disposals. You can't direct the police or the CPS to point people towards that, but, if you build a good infrastructure, it's more likely that people will be pointed in that direction. vikki howells am: And who would build that infrastructure, in your opinion? barry hughes: Somewhere within Wales—Welsh Government, local authorities, the police working in partnership. If I could just ask about awareness raising, then: you mentioned the Bill in Scotland, but that Bill includes a duty on the Government to raise awareness of the change. Do you think that's right or should this committee be saying that there should be a similar duty imposed in Wales? barry hughes: I'm not sure it's for me to say whether there should be a duty or not. I can, however, say that I think the greater the level of awareness, the more likely it is that the Act, if passed, will achieve its intentions. And, in your written evidence, you mentioned the fact that there's no indication of any plans for awareness raising in England and that if a person from England is being prosecuted in Wales as a result of this change, a question could arise about the lack of knowledge about the different provisions that apply in Wales. Can I ask what approach the CPS currently takes in Wales if a law is unintentionally broken by someone who's come from outside the UK, for example? barry hughes: It's straightforward: if someone comes to this country and commits an offence here—by this country, I'd say England or Wales; I'd treat them as one for these purposes—if someone comes from abroad and commits an offence that isn't an offence in their country, but is an offence here, then I'm afraid that ignorance of the law is no defence. So, raising awareness is important, and I saw, and I was pleased to see, that the media publicity surrounding this proposed legislation, which is now going through, reached as far afield as New York and had widespread media coverage across England and Wales, and I think the Government would be well placed here to take advantage of that willingness of the media to explore something, which is potentially divisive, and I think you've probably seen some of that. Anything like that is a good story, and a good story gets out there, which means you're more likely to make people aware of it. sian gwenllian am: Yes, we've discussed some of these already, but, for example, under the new law, or the proposed law, would one unintended consequence be that, if someone living in Wales who can't use the reasonable punishment defence—would their life prospects be different compared to those people in England, who will be able to use that defence? I think you've mentioned that in your written evidence. A simple answer: if somebody in Wales is convicted—so, if it goes towards the end of the spectrum that is serious, which results in a prosecution—. It may be—the sort of circumstance I can see happening here is somebody who takes a principled stand and declines any form of out-of-court disposal and says, 'Prosecute me'. So, let's say it comes to court and let's say they end up being convicted of assaulting their child—in circumstances that would not have happened in England—then they would have a criminal conviction they wouldn't have in England, and that, inevitably, has an impact upon their life prospects. And do you think that that would be an isolated incident? barry hughes: Yes, truly, I believe, an isolated incident. I've said before that I would be very surprised if we even had referrals that reached double figures on these cases. When the CPS was asked to conduct a survey across all of England and Wales—this was the review in 2007—it spanned just over a two-year period, and there were 12 cases that were brought up at that stage. Now, I have to say, I don't think that's entirely reliable, but it is indicative. We had a Freedom of Information Act request at one stage, which threw up something like three cases in a year. So, if you think about that as being all of England and Wales—and we make up about 5 per cent of the volume of criminal prosecutions nationally—you can see why I might say the numbers are likely to be small, for the reasons we've explored about getting past the evidential stage into the public interest. In terms of thinking about another kind of unintended consequence, in terms of managing performance and all of the targets that the police need to reach, are we perhaps going to see some people going through the criminal justice system in an inappropriate way and contrary to the interests of the child, because we need to reach some target in terms of performance measures? barry hughes: I have to say I think that extremely unlikely. Clearly, we prosecute if we think that there's a reasonable prospect, a realistic prospect, of conviction and it's in the public interest, but we have no targets. And I would also say, because the numbers here are likely to be so small, any assertion of looking to meet targets—it's a tiny, tiny fragment of a drop in the ocean. sian gwenllian am: What about—? There is a target for unsolved crimes, or unsolved offences. What if they fall into that category? Is that an unintended consequence? barry hughes: I'm talking about something I don't have great knowledge of here. There was, at one stage, a series of targets for the police that bore down upon cases that secure what was called a sanction detection, which counted for Home Office figures. Some individual constabularies may still have targets, but, as far as I'm aware, we don't have a suite of national measures. And, in my experience, the police are much more sensible these days than they may have been 20 years ago, in terms of trying to get cases charged in order to meet some notional target. We've mentioned this, namely the risk of malicious reporting against parents involved in private family law cases. Is that going to increase if we change the law? barry hughes: There is greater potential for it to increase. I think the numbers, again, will be tiny, and dwarfed by the number of cases where we have to deal with the fallout between a relationship breakdown between partners—whether they be living within the same house or living in different houses. Getting into the subtleties of the father, say, smacking the child in a way that was reasonable chastisement or was not reasonable chastisement is probably part of a much bigger piece here. It's not something that would cause me concern, simply because we already have a well-developed approach to dealing with the way in which we evaluate the evidence from parties who may well have a particular position that they want to reinforce, sometimes through exaggeration of basic facts and sometimes through fabrication. sian gwenllian am: Are there any other unintended consequences that come to your mind if we introduce this law? barry hughes: No, I think we've had a pretty helpful canter through most of the circumstances here that might happen. sian gwenllian am: Finally from me, therefore—another issue, in a way—the European convention on human rights. Would not introducing the new law mean, at some point, that Wales could get itself into difficulty because there is a breach of the human rights convention? And therefore England as well, at some point. How to approach that one? In the 2007 review to which we've referred already, the Government, the then Government, set out its position that it believes that section 58, in the way that it was drafted, is compliant with the European convention. If Wales implements this legislation and it becomes part of the law, then, arguably, Wales would be more in compliance with ECHR than not, and England would be less so. But nonetheless, at present, I haven't seen any demurral from the position that was expressed in 2007, which is that they consider that the position that's been adopted with section 58 is compliant with the legislation. It may well be tested by case law; that's the way it's likely to happen. Some of the changes in this arena were driven by case law—so, that case I referred to, Regina v H, which was heard back in 2001 in the Court of Appeal, was significant in helping shape the direction of travel towards section 58. sian gwenllian am: And that case law not necessarily would have to happen within the UK—that case law could come from other countries within the European Union. barry hughes: It could, but I would be a foolish man if I were to say what impact European jurisprudence might have upon us. [Laughter.] suzy davies am: [Inaudible.]—like common law jurisdictions would be. Suzy's touched on this mildly, but, in written evidence, you say that you do not consider that the costs of prosecuting cases made possible by the Bill will be of great significance to the Crown Prosecution Service, and you're basing that, from your evidence here today, on the low numbers of prosecutions. So, we've been asked by individuals, and we've had consultation responses from individuals, who've argued that there is no point creating legislation if people are not prosecuted for breaching it. What's your answer to that? barry hughes: There is a huge body of legislation out there that outlaws certain offences, and I think probably about—. From memory—please never hold me to this—but, from memory, there are something like 10,000 criminal offences; we probably prosecute 5 per cent of those in any given year. I've been prosecuting for 32 years now; there are some offences that I've never come near and probably never will. But, nonetheless, the fact those offences exist sets out in terms what is acceptable and what is not acceptable. Well, they're not something that we do, but it sets out what's tolerant—what's tolerable, sorry, and what isn't. So, the fact that we might not have many prosecutions is, for me, not a reason not to say that we shouldn't signify that certain behaviour is or is not acceptable. Clearly, we don't wish to criminalise everything—that would be a nonsense—or to attempt to set the boundaries by almost micromanaging what individuals do and don't do. And then the explanatory memorandum says there is a shortage of registered intermediaries who assist child witnesses during police interview and when giving evidence in court. Is this a potential barrier to implementing this proposed law, and are there any other potential barriers you want to raise? barry hughes: No. There was a shortage of registered intermediaries in Wales, and I know that the Ministry of Justice have taken action to deal with that, and we have had a number of people who are now in a position to act as intermediaries. Now, of course, if they were to decide not to do that anymore, we may have a problem, but, in turn, we would be looking to recruit more people into those positions. So, yes, it has the potential to serve as a barrier, but in practice, I don't think it would be a barrier. I think, particularly given the very low numbers we're talking about, we would be able to manage it. Can I thank you for attending, the three of you, and for your answers, which have been fascinating and very clear and most helpful to the committee? You will be sent a transcript following the meeting to check for accuracy. Paper to note 1 is a letter from me to the Business Committee requesting an extension on the deadline for the Bill, which has now been agreed. Paper to note 2 is a letter from myself to the Deputy Minister for Health and Social Services requesting some further information from CAFCASS Cymru on the Bill. Paper to note 3 is a letter from myself to the Minister for Education regarding Diamond reform implementation ahead of our scrutiny session on 4 July. Can I propose in accordance with Standing Order 17.42 that the committee resolves to meet in private for the remainder of the meeting? Are Members content? Thank you.
Barry Hughes believed that implementing a clear legal framework would provide clarity for parents and professionals, but there was confusion and ambiguity when it came to prosecution, leading to some cases falling into grey areas. He also suggested that the infrastructure for out-of-court disposals could be developed by the Welsh Government, the police, and crime commissioners. Barry clarified that they did not have specific targets for prosecution, but only pursued cases with reasonable prospects. Similarly, the police no longer had targets, except for certain individuals. Huw Irranca-Davies emphasized the focus on registered licensed providers for the childcare offer, aiming for higher quality and a broader range of services compared to individual childcare. However, it was noted that some grandparents who were registered, licensed, and inspected also cared for their grandchildren and other children in small groups.
What were Barry Hughes' thoughts on the legal framework, infrastructure of out-of-court disposals, targets for performance measures, and the registration of grandparents in relation to the childcare offer?