Select Committee on Education and Skills Minutes of Evidence


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 established—and stronger—Commissioners 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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