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Background
In July 2012, the Government published draft legislation on the reform of the Office of the Children's Commissioner in England. The draft legislation follows the recommendations made in the Dunford Review, an independent review which was laid before Parliament in December 2010. We have undertaken pre-legislative scrutiny of these draft clauses for their compatibility with the relevant international standards for independent human rights institutions for children. A bill containing provisions relating to the Office of the Children's Commissioner for England is expected to be introduced into Parliament early in 2013.
We welcome the content of the draft clauses in principle as constituting a significant human rights enhancing measure and a step-change in the UK's implementation of the UN Convention on the Rights of the Child (UNCRC). In our Report we comment on some areas of concern.
Mandate
We welcome the proposed change in the Commissioner's primary function, from one of 'promoting awareness of the views and interests of children in England' to one of 'promoting and protecting the rights of children in England'.
We recommend, however, that the Bill should expressly define "the rights of children in England" to include the rights in the UNCRC and the rights of children in any other international treaty ratified by the UK for the purposes of defining the Commissioner's primary function. In addition, we expect the Government to ensure that the definition of the UNCRC rights in the Bill include the rights in the Optional Protocols ratified by the UK. We also consider that the Children's Commissioner should be required to have regard to all relevant international standards concerning the rights of children. We recommend that the draft clauses should be amended so that it is plain on the face of the Bill that the Commissioner is responsible for promoting and protecting children's rights or interests in domestic law or statutory guidance where these are more extensive than those in the UNCRC.
We welcome the Government's clear indication that systematically monitoring the implementation of the UNCRC in the UK and reporting on progress is to be within the scope of the Commissioner's primary function. However, we also believe that the draft clauses should be amended so as to include an explicit reference to the Commissioner's function of monitoring the UK's implementation of the UNCRC.
We recommend that the title of the Commissioner be changed to include "young people" as well as "children", both in order to encourage older teenagers to consider the Commissioner of relevance to them, and to reflect the fact that the Commissioner will have functions in relation to certain 18-24-year-olds.
Powers
We welcome the Government's permissive approach to the Commissioner's powers, but it is important for there to be clarity about the specific powers which the Commissioner has.
We accept that it would be unrealistic for the reformed Children's Commissioner to take on the role of an ombudsperson with jurisdiction to hear individual complaints without a substantial increase in the resources available to the office. However, we welcome the Commissioner's power to consider or research the availability and effectiveness of both complaints procedures and advocacy services, and we encourage the Commissioner to make early use of these powers.
We recommend that the Commissioner should have express power to advise persons exercising functions or engaged in activities affecting children how to act compatibly with children's rights. We also recommend that it should be made clear on the face of the Bill that the Commissioner has the power to carry out investigations. The Commissioner should expressly be given the power to investigate any issue which raises important questions of compatibility with children's rights. This express power should be in addition to the proposed powers to "consider and research".
The Commissioner should have the power to initiate legal proceedings, including judicial review, in the Commissioner's own name, and also to intervene as a third party where appropriate, equivalent to the power of the Equality and Human Rights Commission. We acknowledge that the use of such a power could be resource intensive and we would expect it to be used sparingly in practice.
In addition, the obligations to respond to the Children's Commissioner's recommendations and to provide information reasonably requested by the Commissioner should not be confined to persons exercising statutory functions, but should be extended to include persons exercising "functions of a public nature" within the meaning of the Human Rights Act.
Independence and accountability
The independence of the Commissioner from Government, both perceived and real, is of central importance to the effectiveness of the new Office. We recommend that the Bill contain clear statutory underpinning for the independence of the Commissioner from the Government, by including clauses which impose a clear duty on the Minister not to interfere with the independence of the Commissioner and an obligation to ensure sufficient funding to enable the Commissioner to perform its primary function. We also recommend that the Government reconsider the appropriateness of the Non-Departmental Public Body model for the Commissioner's Office and make available for scrutiny the proposed new Framework Agreement between the Government and the Commissioner.
The Bill should provide that the Commissioner should decide whether requests for advice made by the Secretary of State to the Commissioner, and any advice from the Commissioner in response to such requests, be made public. We also recommend that the Bill should expressly provide that the Children's Commissioner is not obliged to respond to and can decline a request for advice from the Secretary of State. This will ensure accountability and transparency, and prevent the risk of a perception of a lack of independence.
We recommend that the Children's Commissioner's functions should include an explicit reference to advising Parliament, so as to provide the foundation for the 'effective co-operation' envisaged by the Paris Principles, and to formalise what already happens in practice.
We recommend that the Government give an undertaking to ensure that Parliamentary time is made available for an annual debate in Government time centred on the Children's Commissioner's annual report; and that the Government explore ways of securing greater Parliamentary involvement in the selection, appointment and removal of the Children's Commissioner, having regard to other models for appointment and removal of independent office holders.
Devolution
We are not persuaded that there is any evidence of a need to change the current arrangements concerning the relationship between the English Commissioner and the devolved Commissioners. We recommend that the draft clauses allowing the Children's Commissioner for England to delegate the exercise of functions to the devolved Commissioners be left out of the Bill.
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