Memorandum submitted by Peter Newell,
Children's Rights Alliance for England and Adviser, European Network
of Ombudspeople for Children
CHILDREN'S COMMISSIONER AND "REASONABLE
PUNISHMENT"SECTION 58
CHILDREN'S
COMMISSIONER
1. The legislation in Part 1 of the Children
Act creates the weakest Children's Commissioner in the UK, and
probably in Europe. The lack of a human rights-based general function
and lack of independence suggest that the Commissioner is unlikely
to be admitted to the European Network of Ombudspeople for Children
(see letters from the President of ENOC to Mrs Jean Corston MP,
Chair of the Joint Committee on Human Rights, March 2004 and to
Margaret Hodge MP, in October 2004).
2. The legislation fails to meet international
standards (the "Paris Principles" on the status of independent
national human rights institutions, adopted by the UN General
Assembly, 1993; the Committee on the Rights of the Child's General
Comment No 2, "The role of national human rights institutions
in the protection and promotion of the rights of the child",
2002).
BACKGROUND
3. The Government's promise in Every
Child Matters to provide children in England with a powerful
independent champion was widely welcomed. But when the Children
Bill was presented to Parliament in March 2004, the Commissioner
legislation in Part 1 was very widely criticised for its weakness
and lack of independence.
4. Part 1 was substantially amended by cross-party
amendments during its passage through the House of Lords, strengthening
the general function in line with the other Commissioners across
the UK and adding significant powers. The Government made some
concessions, including accepting that the Commissioner "must"
have regard to the UN Convention on the Rights of the Child (instead
of the original "may") and enabling the Commissioner
to initiate formal inquiries, after consultation with the Secretary
of State.
5. But when the Bill returned to the Commons,
the Minister in Standing Committee introduced a series of amendments
to leave out five references to children's human rights and to
remove various other powers added in the Lords. In Standing Committee,
the Minister reiterated her very misleading belief that the Government
was creating "the very best Commissioner in the world"
and "a much better Commissioner than those elsewhere"
(Children Bill Standing Committee B, Tuesday October 12 am, cols
16 and 17).
6. Margaret Hodge also suggested that a
focus on rights "would limit the work that the Commissioner
could do on behalf of children" (col 17). The implication
that human rights provides a narrow framework is absurd and does
not sit easily with the Government's strong overall promotion
of human rights and its desire to build a culture of human rights.
7. Parliament was also misled over the extent
and nature of consultation with children themselves over the establishment
of a Commissioner. It was disingenuous to suggest that children
had drafted the five "outcomes" which the Commissioner
is required under section 2(3) to be particularly concerned with.
There was no consultation with children on the function and powers
of the Commissioner. All the organisations of children and young
people involved in campaigning for the Commissioner advocated
a strong, rights-based Commissioner
MAJOR CONCERNS
8. The major concerns of the broad group
of organisations campaigning for an effective Commissioner, echoed
by Parliamentarians from all parties, are as follows (also see
in Annex below a final statement issued by the campaign group
of organisations when the Children Act completed its parliamentary
passage):
9. General function: the Commissioner's
general function (section 2(1)) is "to promote awareness
of the views and interests of children in England". This
is an important function, but not an appropriate general function
for a human rights institution. The general function of the Commissioners
in Wales, Scotland and Northern Ireland, like those of similar
institutions across Europe and the world, is to promote and safeguard
the rights and interests of children. In addition the Government
re-inserted in the Commons a bar on the Commissioner ever conducting
"an investigation" into the case of an individual child
(section 3 enables the Commissioner to "hold an inquiry",
with strong formal powers, when s/he considers that the case of
an individual child raises issues of public policy of relevance
to other children). Those campaigning for an effective Commissioner
were in full agreement with the Government that the Commissioner
should be under no obligation to investigate individual cases,
and should not get bogged down in them. But it is not appropriate
to have a complete bar on any investigation short of a formal
inquiry.
10. Right of Secretary of State to "direct"
the Commissioner to carry out a formal inquiry: The Government
persisted in defending this provision (section 4 of the Act) in
the face of widespread criticism. The provision plainly conflicts
with the independence of the institution. Section 3 enables the
Commissioner to initiate formal inquiries after consultation with
the Secretary of State. It will of course be possible in addition
for Ministers to request the Commissioner to carry out a formal
inquiry. The only possible purpose of retaining section 4 is to
force the Commissioner to establish an inquiry against his/her
better judgment. Formal inquiries demand substantial time and
expense; through this power of direction Ministers could effectively
control a substantial part of the Commissioner's activities. Ministers
have adequate other powers to establish independent formal inquiries,
including judicial inquiries. The Government does not seem to
understand that it is not appropriate to direct human rights institutions
or limit their functions.
11. Role of the "England" Commissioner
in Wales, Scotland and Northern Ireland: The legislation (sections
5, 6 and 7) gives the Commissioner general and specific functions
in the other countries, in relation to non-devolved matters. This
is confusing for children, insulting to the establishedand
strongerCommissioners in Wales, Scotland and Northern Ireland,
and effectively creates a hierarchy of Commissioners.
12. There is nothing whatsoever in the devolution
agreements that prevents each of the Commissioners being able
to exercise all their powers in relation to all matters affecting
children in their countries. During the passage of the Bill, Ministers
continually implied that there were legal or constitutional obstacles
to this, but produced no evidence whatsoever. Authoritative legal
opinion obtained by non-governmental organisations contradicted
it. The UK-wide model has been criticised strongly by the Commissioners
in Wales, Northern Ireland and Scotland, and by the Welsh Affairs
Select Committee.
13. Ministerial control over funding: Under
Schedule 1, para. 7, the Secretary of State may place any conditions
s/he thinks appropriate on funding for the Children's Commissioner.
Ministers argued that this is a normal provision for a non-departmental
public body (NDPB). But it is not an appropriate provision for
an independent human rights institution, where at least the core
funding should be free of any ministerial conditions. The Joint
Committee on Human Rights in two recent reports has emphasised
that NDPB is not an appropriate status for an independent watchdog.
In its 19th Report of the 2003-04 session on the Children Bill,
the Joint Committee stated: "We regret that, once again,
the establishment of the new office of Children's Commissioner
represents a missed opportunity to clarify the status of independent
watchdogs as a different class from the standard NDPB. We discussed
this issue at some length in our recent report on the proposed
Commission for Equality and Human Rights. We consider that the
status of the Commissioner should be reviewed when the legislation
establishing the CEHR is being designed". (19th Report, para
49).
14. We hope the Committee will conclude
that the legislation establishing the Children's Commissioner
should be reviewed at the earliest opportunity to ensure a strong,
rights-based general function (equivalent to that of the other
Commissioners across the UK), appropriate powers and independence.
We hope the Committee will encourage the Government to work together
with the devolved administrations to ensure that each Commissioner
is able to exercise their powers in relation to all matters that
affect children within each country of the UK.
SECTION 58: REASONABLE
PUNISHMENT
Peter Newell is Coordinator of the "Children
are unbeatable!" Alliance, which brings together more than
350 organisations campaigning for complete removal of the "reasonable
punishment" defence to give children equal protection under
the law on assault
15. We hope the Committee will report on
this section of the Children Act, which comes into force on January
15. Section 58 perpetuates the defence of reasonable punishment,
allowing parents to continue to justify hitting their children
as "reasonable". It removes the defence only in relation
to serious assault charges of actual and grievous bodily harm,
wounding and ill-treatment. UK courts no longer allow use of the
defence in relation to such serious charges, involving significant
injury to children, so the provision represents no advance on
the status quo.
16. The organisations representing those
most directly involved in child protection issued a joint detailed
statement when the Children Bill was in its final stages, stating
that they did not believe that the clause "represents a safe
or workable way forward for children and child protection. To
us, the only alternative to the status quo is to give children
the same protection as adults have from assault" (statement
from Association of Directors of Social Services; British Association
for the Study and Prevention of Child Abuse and Neglect; British
Association of Social Workers; Community Practitioners' and Health
Visitors' Association; National Society for the Prevention of
Cruelty to Children; Parenting Education and Support Forum; Royal
College of Nursing Child Protection Forum; Royal College of Paediatrics
and Child Health).
17. The Joint Committee on Human Rights,
in its nineteenth report (2003-04 session), confirmed that to
comply with the UK's human rights obligations, the "reasonable
punishment" defence must be removed completely to give children
equal protection. It concluded that what was then clause 49 of
the Children Bill (now section 58 of the Act) is incompatible
with the UK's obligations under the Convention on the Rights of
the Child and under other international agreements. It also confirmed
that giving children full and equal protection does not conflict
in any way with human rights.
18. The Joint Committee concluded by recommending
that the provision should be amended to remove the defence completely
and thus give children full protection. The Health Select Committee
in its sixth report of the 2002-03 session on "The Victoria
Climbie Inquiry Report" also urged the Government "to
use the opportunity of its forthcoming Green Paper on children
at risk to remove the increasingly anomalous reasonable chastisement
defence from parents and carers in order fully to protect children
from injury and death".
19. We hope that the Education and Skills
Committee will also conclude that an early Parliamentary opportunity
should be used to remove the unjust "reasonable punishment"
defence completely to give children equal protection and thus
to comply with the UK's human rights obligations.
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