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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