(3) DUTY TO CONSULT CHILDREN
1.54 The Bill imposes a duty on the Secretary of
State, when preparing a national strategy on child poverty,
to consult "such children, or organisations working with
or representing children, as the Secretary of State thinks fit."[85]
The Explanatory Notes to the Bill state that this duty is "consistent
with the obligation arising under Article 12 of the UN Convention
on the Rights of the Child."[86]
1.55 Article 12 UNCRC requires States to "assure
to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance
with the age and maturity of the child." The international
monitoring bodies have often stressed the importance of participation
as an essential element of anti-poverty strategies,[87]
particularly for children for whom poverty is a major obstacle
to participation in a number of contexts.[88]
1.56 The obligation to consult children in the Bill,
although couched as a duty, leaves the Secretary of State with
a great deal of discretion as to who he consults, and also permits
him to consult organisations working with or representing children
instead of children themselves. The Government does not think
it appropriate to prescribe in legislation the detailed methods
for consulting children and young people and opposes any mandatory
requirement to consult the relevant Children's Commissioner on
the basis that requiring this in legislation may be overly prescriptive
and lead to the extent of the consultation being limited.
1.57 In our
view the duties to consult children in the preparation of child
poverty strategies are insufficiently precise, because they leave
it to the discretion of the Secretary of State (or Scottish Ministers/Northern
Ireland department) as to whether or not to consult children directly
at all: they could choose to consult organisations working with
or representing children instead. We recommend that the duty
to consult be amended to give better effect to the right recognised
in international human rights law to participate in the relevant
decision-making process, by requiring consultation with both children
and organisations working with or representing them, and by requiring
consultation with the relevant Children's Commissioner. The following
suggested amendment to the Bill would give effect to this recommendation.
Page 5, line 24,
Insert new sub-paragraph "(ba) must consult
the Children's Commissioners for England, Wales, Scotland and
Northern Ireland."
In sub-paragraph ( c), leave out "or" and
insert "and"
(4) HUMAN RIGHTS BASED STRATEGY
FOR POVERTY REDUCTION
1.58 We asked whether the Secretary of State will
have regard to the guidance of the UN Committee on Economic, Social
and Cultural Rights on human rights-based poverty reduction strategies[89]
when drawing up the national strategy, as recommended in that
Committee's recent Concluding Observations on the UK, and how
the Government proposes to give effect to that guidance.
1.59 The Minister responded that in preparing the
child poverty strategy the Government will take into account the
guidance issued by the UN Committee, "particularly with regard
to addressing inequality and encouraging a participatory approach."
He also pointed to the requirement for annual reporting on progress
as evidence that the Government's approach is sensitive to the
UN Committee's recommendation is that Governments should be held
to account for the effectiveness of their poverty reduction strategies.
1.60 We welcome
the Government's positive engagement with the UNCESCR's guidance
on using international human rights law as a framework for poverty
reduction strategies and look forward to seeing in more detail
precisely how the Government proposes to give effect to that guidance.
1 Children's Rights Alliance for England; Refugee Children's
Consortium; Save the Children; Equality Commission for Northern
Ireland; Children England; Wales UNCRC Monitoring Group; Treehouse;
The Children's Society; Immigration Law Practitioners' Association
("ILPA"). Back
2
Press Notice No. 56 http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrpn056_270709.cfm Back
3
Twenty-ninth Report of Session 2007-08, A Bill of Rights for
the UK?, HL Paper 165-I, HC 150-I, chapter 5. Back
4
Ibid. at paras 192-197. Back
5
Clause 1. The four targets are defined in detail in clauses 2-5:
they are the relative low income target, the combined low income
and material deprivation target, the absolute low income target
and the persistent poverty target. Back
6
Cf. the Climate Change Bill, which broadly provides the model
for the current Bill, but which gives the Secretary of State the
power to amend the targets. Back
7
Clause 16 and Schedule 2. Back
8
Clause 8(1). The Bill also places duties on the Scottish Ministers
and the relevant Northern Ireland Department (the Office of the
First Minister and Deputy First Minister) to prepare child poverty
strategies through to 2020, relating only to devolved matters,
also to be reviewed and revised every 3 years: clauses 10 and
11. Back
9
Clause 8(2). Back
10
Clause Back
11
Clause 13(1). Back
12
Clause 13(5). Back
13
Clause 7 and Schedule 1. Back
14
Clause 9(1) and (3). Back
15
Clause 9(4)( c). Back
16
Clause 15(1) and (2). The Scottish Ministers and the relevant
Northern Ireland department are similarly required to have regard
to (a) the resources that are or may be available to them and
(b) the effect of the implementation of the strategy on those
resources: clause 15(3). Back
17
Part 2, clauses 18-24. Back
18
Bill 112-EN, paras 135-146. Back
19
EN paras 147-8. Back
20
Letter from Rt Hon Stephen Timms MP dated 16 June 2009 and accompanying
human rights memorandum, Ev 1-6. Back
21
Committee on the Rights of the Child (Forty-ninth Session), Concluding
Observations on the United Kingdom of Great Britain and Northern
Ireland, CRC/C/GBR/CO/4 (20 October 2008). Back
22
Concluding Observations of the Committee on Economic, Social
and Cultural Rights on the United Kingdom of Great Britain and
Northern Ireland, E/C.12/GBR/CO/5 (22 May 2009). Back
23
Human rights memorandum, para. 47, Ev 6. Back
24
See the recent Court of Appeal decision in R (Friends of the
Earth) v Secretary of State for Energy and Climate Change
[2009] EWCA Civ 810 (30 July 2009), a challenge to the Secretary
of State's failure to implement his Fuel Poverty Strategy under
the Warm Homes and Energy Conservation Act 2000, in which the
Court noted, at para. 19, "the relatively sudden upsurge
of this type of target-setting, duty-creating legislation"
and describing it as "a rapidly developing area of public
law." Back
25
Letter from Rt Hon Stephen Timms MP dated 16 June 2009, Ev 1. Back
26
Clause 8(1). Back
27
Clause 8(2). Back
28
Clause 8(4). Back
29
Clause 8(6)(a)(i). Back
30
Clause 8(7). Back
31
Clause 13(1). Back
32
Twenty-first Report of Session 2003-04, The International Covenant
on Economic, Social and Cultural Rights, HL Paper 183, HC
1188 at para. 64; Twenty-ninth Report of Session 2007-08, A
Bill of Rights for the UK?, HL Paper 165-I, HC 150-I at para.
167. Back
33
Ibid. at para. 192. Back
34
"Yvette Cooper plans binding legal commitment to cutting
child poverty", The Guardian, 11 June 2009. Back
35
Section 2(1) of the Warm Homes and Energy Conservation Act 2000
imposes a duty on the Secretary of State to prepare and publish
a strategy setting out his policies for ensuring that, as far
as reasonably practicable, persons do not live in fuel poverty. Back
36
[2009] EWCA Civ 810 at para. 15. See to similar effect para.
20: "The essential legal obligation is described in terms
of effort or endeavour." Back
37
Ibid. at para. 2. Back
38
Ibid. at para. 17. Back
39
Letter from Rt Hon Stephen Timms MP dated 22 September 2009, Ev
8. Back
40
Ibid.. Back
41
Ev 8-9. Back
42
PBC 20 October 2009 Qs 26-28. Back
43
Through Thick and Thin: Tackling Child Poverty in Hard Times,
Report of the Campaign to End Child Poverty, 2 November 2009. Back
44
Schedule 2, para. 3. Back
45
Minutes of Evidence taken before the House of Commons Work and
Pensions Committee, 17 June 2009, uncorrected transcript HC 702-I,
Q 86. Back
46
Letter from Rt Hon Stephen Timms MP dated 22 September 2009, Ev
9. Back
47
Ibid., Ev 9. Back
48
See e.g. the Friends of the Earth case, above, at paras
30 and 35; Holmes-Moorhouse v Richmond upon Thames LBC
[2009] UKHL 7 at para. 38 ("courts have no power to conjure
up resources where none exist."). Back
49
See e.g. Child Poverty Action Group Ev 12; National Children's
Bureau Ev 21; UNICEF Ev 30. Back
50
Clause 8(1) and (2). Back
51
Section 2(5) of the Warm Homes and Energy Conservation Act 2000
provides that "The appropriate authority shall take such
steps as are in its opinion necessary to implement the strategy." Back
52
Section 28D(5) of the Disability Discrimination Act imposes a
duty on the responsible body to implement its accessibility strategy. Back
53
RT Hon Stephen Timms MP, PBC 20 October 2009 col. 24; Letter from
Rt Hon Stephen Timms MP dated 22 September 2009, Ev 9. Back
54
Ibid., Ev 10. Back
55
PBC 20 October 2009 col. 23. Back
56
Clause 13(5). Back
57
Letter from Rt Hon Stephen Timms MP dated 22 September 2009, Ev
10. Back
58
[2009] EWCA Civ 810 at para. 38. Back
59
Eg. Child Poverty Action Group Ev 13; Law Centre (NI), at para.
7,2,1, Ev 20; Save the Children, para. 4.2, Ev 27. Back
60
Clause 1(1). The 4 targets are described in clauses 2-5. Back
61
Clause 6(1)(a). Back
62
Clause 6(4). Back
63
EN paras 17-18. Back
64
EN para 137. Back
65
Human rights memorandum, para. 24, Ev 3. Back
66
Letter from Rt Hon Stephen Timms MP dated 22 September 2009, Ev
10. Back
67
See e.g. Immigration Law Practitioners' Association Ev 14-18;
Refugee Children's Consortium, Ev 23-25; Save the Children, Ev
27; UNICEF, Ev 29. Back
68
Twenty-fifth Report of Session 2008-09, Children's Rights,
HL Paper 157, HC 318 at para. 146. Back
69
EN paras 138-9; Human rights memorandum, at paras 16-22 and 25,
Ev 2-3. Back
70
Stec v UK, App. No.s 65731/01 and 65900/01, (2005) 41 EHRR
SE18 at para. 54 (Grand Chamber decision as to admissibility). Back
71
EN para. 140; Human rights memorandum, para. 26, Ev 3. Back
72
Human rights memorandum, para. 27, Ev 3-4. Back
73
EN para. 140; Letter from Rt Hon Stephen Timms MP dated 22 September
2009, Ev 11. Back
74
Clause 8(2)(b). Back
75
EN para. 141; Human rights memorandum, para. 28, Ev 4; Letter
from Rt Hon Stephen Timms MP dated 22 September 2009, Ev 11. Back
76
Section 436A(1) Education Act 1996, inserted by s. 4(1) Education
and Inspections Act 2006. Back
77
UNCRC General Comment No. 5 (2003) on General Measures of Implementation
of the Convention on the Rights of the Child, at para. 9. Back
78
Ibid. at para. 48. Back
79
Ev 14-18. Back
80
Above, n. xx at para. 146. Back
81
Ev 23-25. Back
82
Above, n. 21 at para. 64. See also ibid. at para. 24, recommending
that the UK strengthen its awareness-raising and other preventive
activities against discrimination and, if necessary, take affirmative
actions for the benefit of vulnerable groups of children, such
as Roma and Irish Travellers' children, migrant, asylum-seeking
and refugee children and other vulnerable groups. Back
83
Above, n. 22 at para. 28. Back
84
Letter from Rt Hon Stephen Timms MP dated 22 September 2009, Ev
11. Back
85
Clause 9(4). Back
86
EN para. 148. Back
87
See e.g. Poverty and the International Covenant on Economic, Social
and Cultural Rights: Statement of the Committee to the Third UN
Conference on the Least Developed Countries (twenty-fifth session),
E/2002/22-E/C.12/2001/17, annex VII at paras 9 and 12. Back
88
UNCRC General Comment No. 12 on the Right of the Child to be Heard
(2009) CRC/C/GC/12. Back
89
Statement on Poverty and the International Covenant on Economic,
Social and Cultural Rights of 2001 (E/C.12/2001/10). Back
