Joint Committee On Human Rights Appendices to the Minutes of Evidence

43.  Memorandum from the Children's Rights Commissioner for London

  This letter is a personal submission to the inquiry into the desirability of establishing a Human Rights Commission in the UK.

  The Office of which I am Director is a model children's rights commissioner, established by a consortium of children's groups and supported by the National Lotteries Charities Board, Calouste Gulbenkian and Bridge Houses Estate Fund, the NSPCC, Save the Children UK and The Children's Society. We are working with the Greater London Authority to develop the first Children's Strategy, which is to implement the Mayor's policy:

    London should be a child-friendly city.

    The Greater London Authority is committed to respect for the human rights of children. The UN Convention on the Rights of the Child recognises children's fundamental rights to the provision of the necessities of a decent life; protection from all forms of violence and exploitation, neglect and cruel or inhuman treatment; and participation in the decisions that affect them and in the life of their community.

    The policy framework underlying the Children's Strategy is the UN Convention on the Rights of the Child.

    In developing its strategies the GLA will:

    —  Consider children's rights and how its decisions may affect them.

    —  Make sure that children participate fully in strategic decision-making.

    —  Make itself accountable to children as well as citizens of voting age, and

    —  Promote positive and challenge negative attitudes to children.

  Our aim is to model what a Children's Rights Commissioner would do by working with the new regional government for London while consulting with children, promoting their participation in government, monitoring government's implementation of UNCRC and developing effective government institutions for children. Our aim, at the end of three years, is a demonstration that a children's rights model results in better government, and a better life for children. We believe all the children in the UK are entitled to an independent children's rights champion, a Children's Rights Commissioner.

  I am a senior lawyer and the Director of this Office. I am an expert in the human rights regime in Australia, both in my professional capacity (including Chairman of the International Commission of Jurists) and working with government and industry in the discrimination and management area in one of Australia's largest law firms, and also as a statutory office-holder.

  I have worked closely with two of Australia's Human Rights Commissioners, Brian Burdekin and later Chris Sidoti, and the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson. I was also responsible, from 1990-94, for the administration of both state and federal anti-discrimination laws in the Australian State of Victoria, as its Commissioner for Equal Opportunity: these laws partially implemented Australia's international human rights obligations (ie not limited to sex discrimination).

  All Australian states and territories have passed Acts prohibiting discrimination in areas of public life on a wide range of grounds including sex, race, disability or impairment, political and religious belief and activity, age, (in most states) sexual orientation or lawful sexual activity, and several other grounds, including victimisation (discriminatory advertising and racial vilification is, in some states, a criminal offence). This anti discrimination regime is typically administered by a single "equal opportunity" or anti discrimination Commission, Commissioner or Board.

  The federal government has also established a Human Rights and Equal Opportunity Commission responsible for monitoring Australia's compliance with a number of international obligations including CEDAW, CEARD and ILO Convention 111 and UNCRC, and to promote understanding and handle complaints of discrimination under domestic laws implementing some of Australia's international obligation: specifically, sex, race and disability discrimination.

  With a number of different jurisdictions and limited resources it was necessary for state and federal bodies to collaborate on, at least, complaint handling and in my own case, public education campaigns too.

  While I was the Commissioner for Equal Opportunity for Victoria, I was also the delegate of the federal Sex Discrimination Commissioner, Race Discrimination Commissioner and Disability Discrimination Commissioner (she in fact worked from my office for two years). I received and sought to resolve those complaints and forwarded them to HREOC when they could not be resolved, for hearing by federal Hearings Commissioners. The federal government funded my office for this work. The state government provided the core funding. These arrangements worked well for my tenure. The shared responsibility led to creative activities.

  This shared responsibility was also a very useful way of focusing attention at a state level on Australia's international human rights obligations, which otherwise tend to be overlooked in favour of parochial considerations. It also grounded what might otherwise have become an aloof or elitist and resented national body (Australian political sensitivities are historically sharp). The fact that the administrative costs were shared was useful for focusing both levels of government attention on discrimination as a cost to them. It enabled the states to develop their own legislative responses to a national responsibility.

  After I left office as Victoria's Commissioner for Equal Opportunity, I was appointed a hearings Commissioner of the Australian Human Rights and Equal Opportunity Commission (1994-1997). This required me to hear and determine complaints of discrimination in a quasi-judicial process, and to give procedural directions and chair conciliation meetings where appropriate.

  I write in support of the UK establishing a Human Rights Commission.

  I believe that the Australian model might be a useful model for further study. As a federation with divided legislative and administrative responsibilities it is very hard to have an overview of human rights standards across the nation. HREOC did and does provide that overview. The collaboration of "distinct" and autonomous commissioners in a collegiate administration struck sparks and has most certainly contributed to a human rights culture in Australia: perhaps it is a measure of its success that the present administration appears anxious to remove much of its independence and effectiveness, and that the Senate (the upper house) has not permitted this to occur.

  The UK already has separate commissions dealing with racial equality, equal opportunities and disability discrimination. Each would resist, and rightly so, incorporation within a generalist body. In my present role as Director of a "model" for statutory children's rights commissioners, I also consider that it is essential for very marginalised groups to have a distinct "commissioner". A children's commissioner limited to advocacy of the rights of children in residential care, or within a larger organisation devoted to adult interests, or without the power to speak out on matters affecting all children's rights, is not a "real" commissioner at all.

  However I believe that it may be possible to protect the rights of the very vulnerable in a statutory regime which vests very considerable autonomous powers to the office-holder, while achieving cost effectiveness with a shared administration and investigation/support service: a children's rights commissioner responsible for enabling legislation, complaint-handling, conduct of investigations and public education, with a fenced-off budget, sharing administrative services within a universal human rights framework.

  The key is the enabling legislation, and a commissioner's personal responsibility and control over budget negotiations and expenditure for her or his unique work.

  The Australian Human Rights and Equal Opportunity Commission has commissioners for Sex, Race, Disability, Aboriginal and Torres Strait Islander Social Justice and Human Rights (and for some time Privacy). Each is responsible for their own sphere of activity and their own legislation and reports separately publicly and to the Parliament. There is a single administration under a Chief Executive responsible to the commission as a body. Complaints of discrimination are received by the corporate body and investigated and resolution attempted by staff employed by the one body. Unresolved complaints of discrimination are now referred direct to the Federal Court (or the Federal Magistracy) for determination. However policy is developed separately under the direction of the relevant commissioners.

  The UK requires a body to educate the public, the professions, and administration at every level of their responsibilities to mainstream what are presently optional activities and plans to meet the UK's human rights obligations: to develop a "rights-sensitive" culture.

  This does not just happen with the enactment of a legislative regime. It requires public education on an on-going basis. It requires guidelines, seminars, training and materials. It requires opinion leaders who are not seen as special pleaders for particular interest groups, but as spokespeople for the human rights of particularly disadvantaged persons, within a universal framework of equal respect for human dignity. The main problem with the UK's present arrangements is that disability, women and race are all seen as "special" and indeed competing for "sympathy" or attention. The obligation not to discriminate and to include and take account of those who have been oppressed or overlooked needs to be seen as a human rights imperative, not a remedy for piqued individuals or "special" claims. The UK's human rights obligations are universal, and require universal support.

  The most important power that I had, and HREOC Commissioner had, was the power to hold public investigations into serious, systemic abuse of rights of vulnerable people who could not be expected to make a complaint: homeless children (1989), discrimination against women prisoners held in "male-only" designed prisons; into the experiences of the "stolen generation" of indigenous children (1997); the treatment of refugees and asylum-seekers in detention (1998), sterilisation of intellectually disabled young women (1998) to name just a few. These focused public attention on real human rights issues and helped shape government responses. It was important, since they were often critical, that they were supported by the Commission and by the public.

  It was also important to have the right to litigate to protect the interests of particularly vulnerable people for whom no other redress was possible. Commissioners should be able to intervene as amicus curiae on issues relating to public policy in their areas of responsibility.

  It is important that the Commissioners should be able to facilitate the making and resolution of individual complaints—conciliation is a suitable remedy—and where a trend or major issue is perceived, take steps to address that as a matter of public policy.

  There must be a power to conduct investigations; to require people to provide information; to punish those who deliberately obstruct its work, and to heighten awareness of issues within their remits. It would be very useful indeed for the Commission to have the power to make interim orders restraining apparently discriminatory behaviour pending an investigation and determination of the need for such intervention. "Interim orders" under the Australian Disability Discrimination Act 1992, in 1994, made corporations that had deemed it cheaper to pursue deliberately discriminatory programmes than to comply with mandated statutory regimes on cost grounds, reconsider. The human rights regime in Australia is richer for it.

  I believe co-operative arrangements could be developed with the devolved bodies in Wales, Scotland and Northern Ireland but I do not have the time to elaborate on how that might be worked out. It is very important indeed that there be a national overview, but that local experience and responsibility underpin it.

  It is crucial that the UK Human Rights Commission have powerful autonomous commissioners responsible for promoting effective government that protects and promotes not only the rights of women, racial, ethnic and faith minority groups and people with disabilities, but also the rights of all children. This has been recommended so often over the last ten years that the failure to adopt these recommendations appears perverse.

  I would be happy to elaborate on these views at any time.

Moira Rayner


London Children's Rights Commissioner

30 June 2001

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