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

Letter from Chairman to the Rt Hon Stephen Timms MP, Financial Secretary to the Treasury


  The Joint Committee on Human Rights is considering the compatibility of the Child Poverty Bill with the requirements of human rights law. I am grateful to you for the detailed memorandum you sent to the Committee on 16 June, setting out in detail the Government's consideration of the human rights issues relating to the Bill. This is of considerable assistance to the Committee when it is scrutinising the Bill. I am also grateful to the officials in the Bill team who have met with the Committee's Legal Adviser to discuss some of those issues. This has also been of great assistance to the Committee.

  The Committee welcomes the Bill as a human rights enhancing measure. 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 provides a mechanism for the progressive realisation of children's right to an adequate standard of living in Article 27 of the UN Convention on the Rights of the Child and Article 11 of the International Covenant on Economic, Social and Cultural Rights.

  However, the Committee still has some questions it would like to ask to assist it further with its scrutiny of the Bill's human rights compatibility and I would therefore be grateful if you could provide me with the answers to the following questions.


  Although the Committee welcomes the commitment in the Bill to the progressive realisation of children's right to an adequate standard of living by 2020, it has a number of questions about the likely effectiveness of the mechanism in achieving that goal. One uncertainty in the Bill is the legal enforceability of the new statutory duty to meet the targets. On the day the Bill was published, the Secretary of State for Work and Pensions, the Rt Hon Yvette Cooper MP, was reported in the media as having said that "a government that failed to show how it was seeking to abolish child poverty could be subject to judicial review."[1] It is not clear from the Bill, however, at what point and on what basis judicial review of the Secretary of State could be brought. The duty is to ensure that the targets are met by the end of the financial year 2020-21.

Q1.   Please provide a more detailed explanation of the sorts of circumstances in which it is envisaged that judicial review could be brought to enforce the duty on the Secretary of State in clause 1 of the Bill to ensure that the child poverty targets are met. In particular:

    Would judicial review be available before the target date (end of 2020-21) arrives on the basis that it is already clear that the targets will not be met?

    If so, when could such a challenge be brought and what would be the remedy available on a judicial review of a breach of the duty to ensure that the targets are met?

    Who would be able to bring such a challenge?

    Would the courts have the power to order that the necessary resources should be made available?

  The second question about the likely effectiveness of the Bill concerns the precise effect of the "economic and fiscal circumstances" qualification in clause 15 of the Bill. Although the duty to ensure the targets are met by the financial year 2020 is absolute, the duty to have a national strategy for achieving those targets is qualified by the requirement that economic and fiscal circumstances must be taken into account by the Secretary of State when preparing the strategy.

  As the Chair of the Work and Pensions Committee pointed out to you in a recent evidence session (17 June 2009), the distinction in the Bill between the targets and the strategy is artificial because if the strategy is not properly resourced the targets will not be met. You responded that the strategy will have to be properly resourced, in order to ensure that the targets are met, but on the face of it clause 15 of the Bill makes the strategy subject to budgetary constraints and if the strategy were judicial reviewed on the basis that it was insufficiently resourced to meet the targets the Secretary of State would be able to rely on clause 15.

Q2.   Please clarify the intended effect of clause 15 of the Bill, concerning the relevance of economic and fiscal circumstances, and in particular its relationship with the duty in clause 1 to ensure the targets are met. Is it intended that the Secretary of State should be amenable to judicial review on the basis that the strategy for achieving the targets is not sufficiently resourced?

  The third question concerning the effectiveness of the mechanism is the lack of a duty to implement the strategy. The Bill imposes a duty on the Secretary of State to publish a national strategy setting out the measures that the Secretary of State proposes to take for the purpose of ensuring that the targets are met and, as far as possible, that children in the UK do not experience socio-economic disadvantage.[2] However, unlike other comparable statutory regimes, such as that under the Disability Discrimination Act, there is no statutory duty to implement the strategy.

Q3.   Why does clause 8 of the Bill not include a duty to implement the strategy, equivalent to that in the Disability Discrimination Act?


  The duty on the Secretary of State is to meet targets relating to four income-based indicators of poverty.[3] Those indicators all relate to children in "qualifying households". What counts as a "qualifying household" is not defined in the Bill itself, but the Secretary of State is given power to make regulations about what is a qualifying household,[4] and in doing so "must have regard to the desirability of ensuring that the targets in sections 2 to 5 have as wide an application as is reasonably practicable, having regard to the statistical surveys that are being or can reasonably be expected to be undertaken."[5] What is envisaged is that the definition of "qualifying households" in regulations will be based on the criteria used to collect the best available data by which the indicators are measured. The surveys currently used are based on the Small Users Postcode Address File, which includes most addresses which have postcodes and receive less than 50 items of post a day, and exclude addresses which are "communal establishments or institutions".

  As both the Explanatory Notes to the Bill[6] and the human rights memorandum[7] acknowledge, the effect of confining the duty to meet the targets to children in households that can be measured using current surveys is to exclude certain children, for example children who live in communal accommodation, such as a local authority children's home, and children who do not live in accommodation with a postcode, such as many Gypsy and Roma children. While there is no direct discrimination, because no children are excluded from the surveys simply on the basis of their status, the Government accepts that there could be indirect discrimination because for some groups, such as Gypsy and Roma children, the likelihood of their being excluded is higher than for some other groups.

  I understand that the Government does not accept that there is any incompatibility with Article 14 ECHR, the right not to be discriminated against in the enjoyment of Convention rights, for a number of reasons which are set out in the explanatory material.

Q4.   Leaving aside the question of the applicability of Article 14 ECHR, what is the Government doing to make sure that data is available so that all children can be measured against the targets, and in particular those, such as Gypsy or Roma children, or asylum seeking children, who are excluded from the targets but are the poorest groups which the Government ought to be specifically targeting?

  The excluded groups include some of those children who are particularly poor. ILPA, in its evidence to the Committee's Children's Rights inquiry, commented that "the poverty of certain children under immigration control is not being eradicated, it is being written out of the picture." The UN Committee on the Rights of the Child in its October 2008 report expressed its concern that the Government strategy on child poverty "is not sufficiently targeted at those groups of children in most severe poverty and that the standard of living of Traveller children is particularly poor.[8] The Economic and Social Rights Committee similarly urged the Government to intensify its efforts to combat poverty "in particular with regard to the most disadvantaged and marginalised individuals and groups."

Q5.   How does the Government propose to focus in particular on children living in severe and persistent poverty, as recommended by the relevant monitoring bodies?


  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.[9] 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."[10] Article 12 UNCRC requires States to assure to the child the right to express their views freely in all matters affecting the child. The obligation to consult in the Bill, however, although couched as a duty, leaves the Secretary of State with a great deal of discretion as to who he consults.

Q6.   What is the objection to reducing the Secretary of State's discretion as to who he consults when drawing up the national strategy, and strengthening the duty to consult by, for example, requiring that the relevant Children's Commissioners be consulted?


Q7.   Will 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[11] when drawing up the national strategy, as recommended in that Committee's recent Concluding Observations on the UK?

Q8.   How does the Government propose to give effect to that guidance?

14 July 2009

1   "Yvette Cooper plans binding legal commitment to cutting child poverty", The Guardian, 11 June 2009. Back

2   Clause 8(1) and (2). Back

3   Clauses 2-5. Back

4   Clause 6(1)(a). Back

5   Clause 6(4). Back

6   EN para 137. Back

7   Memorandum, para 24. Back

8   UNCRC Concluding Observations on the UK, 2008, at para. 64. Back

9   Clause 9(4). Back

10   EN para 148. Back

11   Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights of 2001 (E/C.12/2001/10). Back

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