Letter from Chairman to the Rt Hon Stephen
Timms MP, Financial Secretary to the Treasury
CHILD POVERTY BILL
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
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."
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
Who would be able to bring such a
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
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.
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
The duty on the Secretary of State is to meet
targets relating to four income-based indicators of poverty.
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,
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."
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
and the human rights memorandum
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
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
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.
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
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?
3. DUTY TO
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.
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."
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
4. HUMAN RIGHTS
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
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
Clause 8(1) and (2). Back
Clauses 2-5. Back
Clause 6(1)(a). Back
Clause 6(4). Back
EN para 137. Back
Memorandum, para 24. Back
UNCRC Concluding Observations on the UK, 2008, at para. 64. Back
Clause 9(4). Back
EN para 148. Back
Statement on Poverty and the International Covenant on Economic,
Social and Cultural Rights of 2001 (E/C.12/2001/10). Back