Children s Commissioner Review NGO Co-ordinating Group JOINT SUBMISSION TO THE JCHR IN RELATION TO ITS CONSIDERATION OF DRAFT LEGISLATION FOR REFORM OF THE OFFICE OF THE CHILDREN S CONSIDERATION About us AUGUST 2012 The Children's Commissioner Review NGO Co-ordinating Group comprises a range of organisations working with and for children and young people: British Youth Council, Children England, Children s Rights Alliance for England (CRAE), The Children s Society, National Children's Bureau, NSPCC, Save the Children, and UNICEF UK.Chaired by CRAE, this Group led lobbying during the passage of the Children Act 2004 and coordinated the campaign for a Children s Rights Commissioner in the years preceding this legislation. In this submission, the Group has summarised its initial analysis of, and response to, the draft legislation for reform of the Office of the Children s Commissioner (OCCE). The Group hope that this will be of assistance to the Joint Committee on Human Rights as it considers the draft clauses. Summary The Committee on the Rights of the Child has underlined the reasons that children, even more than adults, need an effective National Human Rights Institution: children s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children s access to organizations that may protect their rights is generally limited. 1 Our objective is to ensure that the legislation for reform of the Children s Commissioner empowers the Children s Commissioner to act as an effective, independent and powerful champion for the protection and promotion of children s rights. We are, therefore, very pleased that the primary function of the Children s Commissioner would be to promote and protect children s rights. However, we consider that the draft legislation could be improved to: strengthen the Commissioner s powers and functions 1 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para. 5.
enhance the independence and accountability of the OCCE strengthen children s involvement in the work of the OCCE and provide assurance that the OCCE will have adequate resources to allow it to effectively promote and protect children s rights. The Paris Principles, adopted by the United Nations General Assembly in 1993, prescribe the essential characteristics of any national human rights institution (NHRIs). 2 The UN Committee on the Rights of the Child has elaborated the key requirements for NHRIs concerned with the promotion and protection of children s rights. 3 The European Network of Ombudspeople for Children (ENOC) has developed standards for independent children's rights institutions. 4 We have based our recommendations on the standards set out in these documents, our knowledge of global best practice in the establishment of NHRIs for children, and our experience of working with and for children. References to sections and paragraphs below are to the sections and paragraphs of the Children Act 2004 as amended by the draft legislation if it were passed in its current form. Functions and Powers In our view, the legislation should grant the Commissioner all those powers which, according to the international standards referred to above, an NHRI should have. We recognise that under paragraph 2(1) of Schedule 1, the Commissioner can do anything ancillary to the execution of his or her functions. However, we believe that the legislation should refer explicitly to all those major functions envisaged for NHRIs. This will both increase legal certainty and give rise to an expectation that such functions be fulfilled. In this regard, the following major functions should be included in the legislation: Raising public awareness of children s rights: The Children s Rights Commissioner should promote knowledge of and respect for the human rights of children and young people throughout society. The Committee on the Rights of the Child, in General Comment 2, envisages such a role for children s NHRIs (para 19(l)), as do the Paris Principles (para 3(g)). We recommend, therefore, that section 2(2) should refer to children s rights. Promoting positive attitudes towards children: In the last set of concluding observations in respect of the UK, the UN Committee on the Rights of the Child drew attention to the negative attitudes towards children in the UK. Such attitudes towards children lie behind many other violations of children s rights. We believe that the Children s Commissioner should play a key role in challenging negative attitudes. Section 2(3) should be amended to include this 2 UN General Assembly (December 1993), Paris Principles. 3 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child. 4 European Network of Ombudspeople for Children ENOC (October 2001) ENOC's Standards for independent children's rights institutions.
power. Monitoring the extent to which children s rights are realised: NHRIs have an essential role in monitoring the extent to which children s rights are realised. This must include data collection. This provides necessary ongoing scrutiny of the Government s progress in implementing children s rights and an accountability mechanism to encourage continuing progress. The Children s Commissioner s functions should include a power to conduct research and gather information into the extent to which children in England enjoy their rights. The Commissioner should be required to provide a report to Parliament at least annually on the extent to which children's rights are realised, providing recommendations for action by Government and others. The Commissioner should be required by law to consult children and young people, and organisations promoting and protecting children's rights, in the preparation of such reports. Such a role is envisaged by the Committee on the Rights of the Child for children s NHRIs. In the list of activities it proposes that children s NHRIs should carry out it includes: Review and report on the Government s implementation and monitoring of the state of children s rights, seeking to ensure that statistics are appropriately disaggregated and other information collected on a regular basis in order to determine what must be done to realize children s rights. 5 Legal functions and powers: The Commissioner should have the power to initiate and participate in legal proceedings to advance children s rights and challenge abuses. The Committee on the Rights of the Child has been clear on this point, stating NHRIs should have the power to support children taking cases to court, including the power (a) to take cases concerning children s issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the human rights issues involved in the case. 6 As well as the inclusion of additional powers, those powers which are set out in section 2(3) should be strengthened in the following ways: Section 2(3)(a) should be amended, so that the Commissioner is empowered to encourage persons referred to within that clause to act compatibly with and to further children s rights and to take account of their views and interests. Section 2(3)(c) would grant the Commissioner the power to consider the potential effect of proposed policies and legislation on children s rights. Section 2(3)(d) would allow the Commissioner to consider the effect of existing legislation, but does not cover existing policies. Section 2(3)(d) should be amended so that it applied to both existing policies and legislation. 5 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para. 19 (g). 6 UN Committee on the Rights of the Child (November 2002), General Comment No. 2:The rights of the child, para 14.
Section 2(3)(e) and (f) should prompt the Commissioner to consider not only the availability and effectiveness of complaints mechanisms, but also the accessibility of such mechanisms for children. Section 2(5) should be amended to include, at the end of the section save where the case has wider significance for the rights of children. Inquiries: Under section 3 as currently drafted, the Commissioner s power to conduct inquiries is limited to where the case of an individual child has come to the attention of the Commissioner. This clause is too restrictive and should be amended to become a power to conduct an inquiry in relation to issues of public policy relevant to children s rights. Response to the Commissioner s recommendations: The legislation should be amended to provide that where the Commissioner has in a report made recommendations in respect of a person exercising functions under an Act or an instrument under an Act, an obligation arises for that person to respond to the recommendations, without the need for the Commissioner to require a response. Sections 2(3)(c) and 2(7) should be amended to read: Vulnerable Children Where the Children's Commissioner has published a report under this section containing recommendations in respect of any person exercising functions under an Act or instrument made under an Act, he may require that person to must state in writing, within a reasonable such period as the Children's Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations. Functions of the Children s Rights Director: The Children s Rights Director plays a vital role in assisting some of our most vulnerable children. We wish to ensure that this function continues when the role of the Children s Rights Director is incorporated into the OCCE. This is also the Government s policy objective and was recommended by the Dunford Review. 7 We are concerned that there will inevitably be a loss of focus on the fulfilment of this role, unless the draft clauses are strengthened to ensure that this is not the case. The definition in section 8A should include all children living away from their family, including those in custody and unaccompanied asylum seekers. Independence and Accountability Independence is key to ensuring that the Commissioner can effectively fulfil his or her role. The current provisions in the draft legislation are inadequate in this regard and changes are necessary in order to enhance the Commissioner s independence. 7 Department for Education (November 2010), Review of the Children s Commissioner (England).
Interference: We welcome the proposal to repeal provisions in the existing legislation allowing the Secretary of State to direct the Commissioner to act. The Committee on the Rights of the Child has said that It is essential that institutions remain entirely free to set their own agenda and determine their own activities. In line with this, we recommend that the draft legislation should include a provision similar to that found in paragraph 42(1)(3) of the Equality Act 2006, which requires the Secretary of State to have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining activities, timetables and priorities. Appointment and Removal from Post: Paragraph 3 of Schedule 1 provides that the Children s Commissioner is to be appointed by the Secretary of State. Such an arrangement has the potential to significantly undermine the independence of the post. In our view, international best practice is for the Children s Commissioner to be appointed by Parliament. However, we acknowledge that such an approach would be highly unusual in our public appointments system. At the very least, in order to avoid the risk of political appointments, the legislation should set out broad criteria to which the Secretary of State should have regard in making an appointment (see, for example, paragraph 2(1) of Schedule 1 to the Equality Act 2006) and, as recommended by the Dunford Review, should require the Secretary of State to have due regard to the views of parliament in relation to candidates for appointment. Parliament should also be involved in drafting the job description and person specification for the role. Under the draft legislation, the Secretary of State would have excessive discretion in deciding whether to remove the Children s Commissioner from post, which undermines the post s independence. The Commissioner should only be removed from office for limited reasons prescribed by law, and parliament should be involved in any decision to dismiss a Children s Commissioner. A fair and transparent process must be established to deal with appointment, performance and disciplinary matters. Budget: The draft legislation affords the Secretary of State absolute discretion in deciding the amount and timing and conditions of the Commission s funding. This has the potential to significantly undermine the Commissioner s independence. General Comment 2 is clear that In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding, staff, premises, and freedom from forms of financial control that might affect their independence. 8 In order to establish the conditions in which the Commissioner can act independently, parliament should be involved in setting the amount of the OCCE s funding for a minimum three-year period, and ideally for the length of a parliamentary term. Children s Involvement We welcome the provisions in the draft legislation requiring the Commissioner to take reasonable steps to involve children in the Commissioner s work, and 8 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para, 10.
to consult children in respect of individual aspects of its work. The involvement of children is key to the effectiveness of the Commissioner s role in promoting awareness of the views and interests of children in England, reflects the requirements of Article 12 of the CRC and the recommendations of the Committee on the Rights of the Child in General Comment 2. 9 However, the involvement and consultation of children must not be tokenistic. We consider that, in line with Article 12 of the UNCRC, wherever the legislation includes an obligation to consult children, there should be a corresponding obligation to have due regard to their views. Further, section 8(2)(c) should require the Commissioner not only to report on the steps he or she took to involve children, but also the extent to which he or she had regard to their views. Section 7A(2) should make explicit provision for the involvement of children on the advisory board. Children and young people should be involved in a meaningful way in the appointment of the Commissioner, including in the development of the job description and person specification. As currently drafted, under paragraph 3(2) of Schedule 1 to the draft legislation, the Secretary of State has complete discretion in deciding whether and how to involve children. The draft legislation should be amended to include a clear obligation to involve children and children s organisations in the appointment of the children s commissioner. The draft legislation should ensure the Commissioner's direct accountability to children through, for example, a dedicated annual report distributed to schools and other channels. This is vital, given that children are best placed to comment on the effectiveness of the Commissioner s work, and are not enfranchised and therefore not represented by Members of Parliament. Budget and Resources There is a danger that, unless properly resourced, the changes proposed in the draft legislation will simply raise expectations as to the Commissioner s potential impact. The adequacy of the OCCE s budget will determine whether or not the Commissioner is able to effectively promote and protect children s rights. The Committee on the Rights of the Child takes a similar position: the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of article 4 of the Convention. The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers. 10 9 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para 16. 10 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para.11.
The Paris Principles also underline the importance of ensuring that NHRIs have access to adequate resources : The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence. 11 The Dunford Review drew attention to the fact that the Children s Commissioner had a low budget compared to children s NHRIs in other jurisdictions. At the time of the review, we were spending 0.24 per child on the Children s Commissioner, compared with, for example, 1.89 in Ireland, 1.27 in New Zealand and 3.74 in Northern Ireland (Figure (i), page 153). 12 We see a vital role for Parliament in setting and reviewing the Office s funding. Parliament should be involved in determining the OCCE s funding for a minimum three-year period, and ideally for a parliamentary term, and the amount allocated should be sufficient to allow it to discharge its functions effectively. At the very least, the legislation should contain a provision similar to that found in the Equality Act 2006, which requires the Secretary of State to pay the Equality and Human Rights Commission such sums as appear reasonably sufficient for the purpose of enabling the Commission to perform its functions. Mandate We very much welcome the fact that the Children s Commissioner will have a rights-based mandate. We also welcome section 2A, which directs the Children s Commissioner to have regard to the rights in the Convention on the Rights of the Child. However, in our view, the Commissioner should be encouraged to protect and promote the full range of rights, for all children, including those contained in other international human rights instruments and the Optional Protocols to the CRC. In General Comment 2 the Committee on the Rights of the Child states that the mandate of children s NHRIs should include as broad a scope as possible for promoting and protecting human rights, incorporating the Convention on the Rights of the Child, its Optional Protocols and other relevant international human rights instruments. 13 Due Regard Duty The state has the primary responsibility for ensuring children enjoy the rights in the UNCRC. The state cannot fulfil its obligations under the Convention by simply tasking other bodies with the job of promoting and protecting children s rights. The Committee on the Rights of the Child has been clear that the state 11 UN (December 1993), Paris Principles. 12 Department for Education (November 2010), Review of the Children s Commissioner (England), Figure (i), page 153. 13 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para 8.
cannot delegate its responsibilities under the CRC to an NHRI: The role of NHRIs is to monitor independently the State s compliance and progress towards implementation and to do all it can to ensure full respect for children s rights [This] should not lead to the Government delegating its monitoring obligations to the national institution. 14 In our view, changes to the Children s Commissioner s role will be far more effective if complemented by measures to ensure the effective mainstreaming of children s rights across Government. For these reasons, we also consider that the legislation should include: A public sector children's rights duty, requiring public authorities in the exercise of their functions, to have due regard to the need to (a) respect, protect and fulfil children's rights; (b) actively seek and give due weight to the views of children in all matters affecting them; (c) take such steps as are appropriate to promote knowledge and understanding amongst children and adults of the Convention on the Rights of the Child and its Protocols; (d) ensure mechanisms are in place to investigate and rectify any violations of children's rights without undue delay; (e) ensure children are provided with information and assistance about making representations and protecting their rights; and (f) inform children of the role and function of the Children's Rights Commissioner. A duty on the Office of the Commissioner to publish a statutory code of practice in relation to the duty described above. A requirement on Government Ministers to formally consult the Children s Commissioner during the preparation of laws and policies affecting children, to publish the Commissioner's advice and the Government's response to its advice. England is lagging behind the other UK nations in its protection of children s rights through mechanisms of this sort. A due regard duty of the type described above has already been enacted in Wales, and similar proposals are under consideration in Scotland. Reforms to the Children s Commissioner, born out of a desire for to change children s lives for the better, should be backed up by reforms to promote meaningful change in practice across the public sector. 14 UN Committee on the Rights of the Child (November 2002), General Comment No. 2: The rights of the child, para 25.