Legislative Scrutiny: Child Poverty Bill. - Human Rights Joint Committee Contents

Conclusions and recommendations

1.  We welcome the Bill as a significant human rights enhancing measure and focus in this Report on ways in which it might be improved. (Paragraph 1.3)

2.  The inclusion in the Explanatory Notes of a section concerning the UN Convention on the Rights of the Child is unusual and we commend this as an example of good practice. (Paragraph 1.14)

3.  We welcome the Bill team's engagement with our staff prior to publication of the Bill, and its preparation of a detailed human rights memorandum, and commend them as examples of good practice. (Paragraph 1.15)

4.  By providing an unqualified duty to meet the four income targets by the end of the financial year 2020-21, and establishing a detailed framework both for driving and monitoring progress towards the achievement of those targets, the Bill does on its face appear to provide a mechanism for the progressive realisation of children's right to an adequate standard of living in Article 27 UNCRC and Article 11 ICESCR. It goes some way towards implementing the recent recommendation of the UN Committee on the Rights of the Child that the Government adopt legislation aimed at achieving the target of ending child poverty by 2020, including by establishing measurable indicators for its achievement. We therefore welcome the Bill as a human rights enhancing measure. (Paragraph 1.22)

5.  We therefore welcome the use of the "target-setting legislation" model to bring about the realisation of an important human right and the Government's willingness to introduce what it describes as "ground-breaking legislation." (Paragraph 1.23)

6.  In our view there is a very big difference between a policy, a choice by the Government to pursue a particular goal, and a statutory obligation to pursue that goal. This difference between a legal duty and a policy preference is significant even though it remains the case that Parliament can always repeal the statutory obligation and return it to the status of a mere policy, or aspiration. (Paragraph 1.24)

7.  We welcome the detailed mechanisms in the Bill to ensure that the Secretary of State is accountable to Parliament for the Government's performance of the new statutory duty to ensure that the child poverty targets are met. As both we and our predecessor Committee have consistently made clear in previous reports, we consider that in a parliamentary democracy it is the democratic branches of the state (the Government and Parliament) which should have primary responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority. (Paragraph 1.26)

8.   In our view the scheme of the Bill ensures that primary responsibility for policy on child poverty remains with the democratic branches, by making detailed provision for the Secretary of State's accountability to Parliament for Government policy on how to meet the targets. (Paragraph 1.26)

9.  We also welcome the creation of the Child Poverty Commission as a source of independent expert advice to the Secretary of State. We welcome the duty on the Secretary of State to request the advice of the Commission when preparing a UK strategy, and the obligation on the Secretary of State to have regard to any advice given by the Commission. We also welcome the requirements on the Commission that it give the reasoning behind its advice and that it publish that advice as soon as reasonably practicable after giving it. Both of these requirements enhance the transparency of the process by which the Secretary of State draws up the UK strategy and policy on child poverty generally, and so facilitate parliamentary scrutiny of the Government's performance of its duty. (Paragraph 1.27)

10.  We do not believe it to be realistic, or constitutionally appropriate, to impose legally enforceable duties on ministers regardless of available resources. We therefore accept the necessity for clause 15 of the Bill, on the understanding that its effect is not to exclude the possibility of judicial review, but to make it possible for the Secretary of State to justify his strategy by reference to economic and fiscal circumstances. (Paragraph 1.35)

11.  We welcome the Government's acceptance that judicial review is in principle available, but we also welcome the fact that it will only in practice be available in limited circumstances, such as where the Secretary of State refused to draw up a strategy, or where the evidence is incontrovertible that the targets are going to be missed so that no reasonable Secretary of State could maintain such a strategy consistently with his duty to meet the targets. As we pointed out in our Bill of Rights Report, when some possibility of judicial enforcement exists, it is more likely that rights will in practice be respected. Although under this Bill judicial review of the adequacy of the measures taken by the Government to achieve the targets is not likely to be possible until much nearer 2020, the gradually increasing possibility of such a legal challenge in the future should inform current decisions about the strategy for complying with the overarching duty, which is to ensure that the targets are met by 2020. (Paragraph 1.36)

12.  We are in favour of supplementing the political accountability for not implementing the strategy with a degree of legal accountability by including in the Bill a legally enforceable duty to implement the strategy. (Paragraph 1.41)

13.  We recommend that the Bill be amended to insert a duty to implement the child poverty strategy, as this will enhance opportunities to hold the Secretary of State accountable for failure to make progress towards the targets between now and 2020. (Paragraph 1.42)

14.  We agree with the Government's analysis that the use of targets which apply only to children in qualifying households is potentially indirectly discriminatory, because it necessarily excludes certain children who may well be living in poverty, including Gypsy, Roma and Traveller children, asylum-seeking children living in asylum centres or Bed and Breakfast accommodation, and looked after children living in children's homes. Such differential treatment of children not living in qualifying households raises the question whether the Bill is compatible with Article 14 ECHR, the right not to be discriminated against in the enjoyment of Convention rights (Paragraph 1.44)

15.  We consider that Article 14 therefore clearly applies in conjunction with the right to peaceful enjoyment of possessions in Article 1 Protocol 1. (Paragraph 1.46)

16.  As we have frequently made clear in our legislative scrutiny reports, the fact that the provisions in a Bill are likely to give rise to a breach of a Convention right in practice, for example because of a regulation making power that is likely to be exercised in a way which is incompatible with Convention rights, is of as much concern to us as a breach on the face of the Bill. Our concern about the compatibility with Article 14 ECHR of excluding children not in qualifying households from the targets is not affected by the fact that qualifying households will be defined in regulations rather than in the Bill itself. (Paragraph 1.47)

17.  We welcome the provision in the Bill requiring the UK child poverty strategy to include measures to ensure that children do not suffer socio-economic disadvantage, and we accept that this part of the Bill will benefit all children living in poverty and not just those who are caught by the targets. However, the fact that another part of the Bill will benefit all children does not answer the concern that the targets discriminate against children not living in qualifying households. Nor does it matter in our view that it is not the Bill's intention to discriminate between children: it is enough that it is the effect of its provisions that the children covered by the targets are prioritised over those children not caught by the data. In our view the tying of the targets to qualifying households means that the Bill necessarily gives rise to differential treatment in relation to the enjoyment of Convention rights which requires justification if it is to be compatible with Article 14 ECHR. (Paragraph 1.48)

18.  We therefore disagree with the Government's argument that the exclusion of certain groups of children from the targets which the Secretary of State is under a duty to meet does not amount to unjustified differential treatment contrary to Article 14 ECHR. In our view, Article 14 clearly applies, there is differential treatment of children not living in qualifying households, that differential treatment calls for justification, and the onus is on the Government to show that there are no other measurable targets for the groups currently excluded from the targets because of the way those targets are defined. In our view that onus is all the heavier because the excluded groups include some of those children who are particularly poor. We do not consider the Government to have discharged the heavy onus of justification by relying solely on the cost and impracticality of surveying children who do not live in qualifying households. We therefore conclude that it is highly likely that, as presently drafted, the Bill will give rise to a serious risk of future breaches of Article 14 in conjunction with Article 1 Protocol 1, because policy-makers will prioritise raising the income of children only in qualifying households, in a discriminatory way (Paragraph 1.52)

19.  To remedy this incompatibility we recommend the inclusion in the Bill of a target or targets which would apply to children not living in qualifying households. (Paragraph 1.53)

20.  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. (Paragraph 1.57)

21.  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. (Paragraph 1.60)

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