Reform of the Office of the Children's Commissioner: draft legislation - Human Rights Joint Committee Contents

1  Background


1. In July 2012, the Government published draft legislation on the reform of the Office of the Children's Commissioner in England (Cm 8390).[1] The draft legislation follows the recommendations made in the Dunford Review. [2] John Dunford, the General Secretary of the Association of School and College Leaders, was appointed by the Secretary of State in July 2010 to lead an independent review, focusing on the Commissioner's powers, remit and functions; relationship with other Government-funded organisations carrying out similar functions; and value for money. The Dunford Review was laid before Parliament by the Secretary of State in December 2010.

2. The Government states in its foreword to the draft legislation that the proposed changes will ensure that the Children's Commissioner will be able to focus on promoting and protecting the rights of children, in line with the UN Convention on the Rights of the Child (UNCRC). In doing so, the Government has proposed changes to the role of the Commissioner so as to enable the Commissioner to take an active role in assessing the impact of new policies and legislation on children, greater powers of investigation and independence from Government.

3. The ministerial foreword indicates that the Government intends to introduce these measures as part of a package of children and families legislation announced in the Queen's Speech. According to the Department for Education, the Children and Families Bill is expected to be introduced in early 2013.[3]

The Office of the Children's Commissioner

4. The Office of the Children's Commissioner was created by the Children Act 2004. The current function of the role is to promote awareness of the views and interests of children in England. Under the existing legislation, the Commissioner may:

  • Encourage persons exercising functions or engaged in activities affecting children to take account of their views and interests;
  • Advise the Secretary of State on the views and interests of children;
  • Consider or research the operation of complaints procedures so far as relating to children;
  • Consider or research any other matter relating to the interests of children;
  • Publish a report on any matter considered or researched by him or her under this section.

5. The Commissioner is required by statute to have regard to the requirements of the UNCRC when exercising her functions.

The Dunford Review recommendations

6. The Dunford Review made a total of 46 recommendations in relation to reform of the Office of the Children's Commissioner. The Review recommended the strengthening of the remit, powers and independence of the Commissioner, as summarised below:

  • A strengthened remit: a new rights-based Children's Commissioner for England, so that the basis for the work of the Children's Commissioner becomes to promote and protect the rights of children as set out in the UNCRC;
  • Greater independence from Government: the Children's Commissioner should report direct to Parliament, rather than just the Department for Education, and should not have to consult the Secretary of State before undertaking an inquiry;
  • Increased powers: advising Government on new policies and undertaking an assessment of the impact of new policies on children's rights, and a duty upon Government and local services to issue a formal response to concerns raised by the Children's Commissioner;
  • A merger between the Office of the Children's Commissioner and the Office of the Children's Rights Director in Ofsted: the creation of a new Office of the Children's Commissioner for England.

7. In addition, the Review recommended that Parliament should become more engaged with the work of the Commissioner. In particular, the Review made the following recommendations in relation to appointment, scrutiny of performance and reporting:

  • Appointment: Parliament should consider how it might have a role in the appointment process. The relevant select committee should be consulted on the job description and have the opportunity to make recommendations at the pre-appointment stage. The Secretary of State must have regard to the committee's recommendations;
  • Scrutiny: Parliament should lead on scrutinising the Commissioner's performance, and the Review makes reference to both appearances before select committees by the Commissioner and annual reports as the focus of Parliamentary debate;
  • Reporting to Parliament: the Commissioner should submit reports simultaneously to Parliament and the relevant Secretary of State. The Government should respond within a reasonable timescale with a written statement to Parliament on the action to be taken in response to the recommendations.

8. Finally, the Dunford Review recommended that the new Office of the Children's Commissioner in England should be compliant with the Paris Principles and should meet the Cabinet Office tests of technical expertise, impartiality and independence.

Government response to the Dunford Review

9. The Government welcomed the recommendations of the Dunford Review, with the then Minister for Children and Families, Sarah Teather MP, setting out the Government's position and plans for a consultation on legislative changes in light of the Review in a Written Ministerial Statement. Information on the consultation, which ran from 7 July to 29 September 2011, is available on the DfE website. A summary of responses was published, and subsequently a Government response to the consultation was also produced.[4]

Our scrutiny of the draft clauses

10. We and our predecessor committees have had a longstanding interest in the human rights of children and the institutional machinery for their protection and promotion.[5] Our predecessor committees in the previous two Parliaments were consistent advocates of the case for an independent, effective Office of the Children's Commissioner for England (OCCE) with clearly defined powers and functions. In 2003, for example, in The Case for a Children's Commissioner for England (Ninth Report, Session 2002-2003),[6] the Committee argued that given the size of the child population in England, a separate Commissioner was necessary to protect and promote the rights of the child. The Committee also made recommendations about the effectiveness of the Commissioner in its reports on the Children Bill 2004.[7]

11. In March 2012, we issued a call for evidence for a short inquiry into the role and independence of the Children's Commissioner for England, with a deadline for submissions of 11 April 2012. We received written evidence from eight NGOs, including UNICEF UK, Children England, Save the Children, and from the Department for Education.[8] We also took oral evidence on 24 April 2012 from Dr Maggie Atkinson, the Commissioner, Sue Berelowitz, Deputy Commissioner, and the then Minister for Children and Families, Sarah Teather MP. Both the written and oral evidence we took in that short inquiry are available on our website.[9] We did not report on the matter at that point as the draft clauses were published in July. However, we have taken the evidence we received in that inquiry into account in our scrutiny of the draft clauses.

12. We identified the Bill as one of our priorities for legislative scrutiny in this session and called for evidence in relation to it.[10] We received written evidence from the Association of the Directors of Children's Services, the Association of School and College Leaders, the Children's Commissioner Review NGO Co-ordinating Group, the Children's Rights Alliance for England, the Children's Rights Director, Every Disabled Child Matters, the National Children's Advocacy Consortium, Participation Works, Rights of the Child UK and Save the Children. We also received correspondence from the current Children's Commissioner and from the devolved Children's Commissioners. All of the written evidence and correspondence we received is available on our website. We are grateful to all those who have assisted with our pre-legislative scrutiny of the draft clauses.

Relevant international human rights standards

13. In our scrutiny of the draft clauses, our aim has been to ensure that the opportunity is taken in the legislation to meet all of the current international standards and to draw all of the relevant lessons from the experience of other children's commissioners, including those which have been established in the devolved jurisdictions in the UK.

14. We have therefore scrutinised the draft clauses for compatibility with the following international standards:

  • the UN Convention on the Rights of the Child (in particular Articles 3, 4, 12 and 42);
  • relevant General Comments of the UN Committee on the Rights of the Child, in particular General Comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child ("General Comment No. 2"), explaining the scope of the obligations under Article 4 UNCRC to "undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention";
  • the Paris Principles relating to the status of national institutions for the promotion and protection of human rights (1993) ("the Paris Principles");
  • the European Network of Ombudsmen for Children's Standards for independent human rights institutions for children (2001) ("the ENOC Standards");
  • the General Observations of the International Co-Ordinating Committee's Sub-Committee on Accreditation; and
  • the Belgrade Principles on the relationship between national human rights institutions and parliaments (2012) ("the Belgrade Principles").

The information provided by the Department

15. The DfE has provided a draft assessment of the compatibility of the draft proposals with the UNCRC. Although previous human rights memoranda have included consideration of the UNCRC, this is the first time that a dedicated UNCRC memorandum has been provided to us since the Government committed itself (in December 2010) to assess all legislative proposals for UNCRC compatibility.

16. The quality of the analysis in the assessment is good: it considers most of the relevant Articles of the UNCRC and also some aspects of the Paris Principles. Disappointingly, however, it does not contain any consideration of the UNCRC Committee's General Comment No. 2 which is highly relevant to these draft proposals. The UNCRC assessment has been provided to us to assist in our scrutiny, but does not appear to have been made publicly available. We welcome the Government's UNCRC assessment as a good precedent.

17. We wrote to the Government on 12 September 2012 asking 26 detailed questions, seeking further clarity about certain aspects of the draft clauses, and focusing on possible ways of improving the draft legislation in the light of the relevant international human rights standards and best practice.[11] A response was requested by 26 September 2012 to enable us to report in time for our conclusions and recommendations to be taken into account by the Government when it draws up the actual clauses for inclusion in the Children and Families Bill which is expected to be introduced in January 2013. After requesting extensions, the Government responded by letter from Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, dated 10 October 2012.

18. The Government's response is disappointingly brief and does not purport to answer most of the detailed questions we asked in our letter. Instead, the response says that our letter "provides some helpful suggestions which [...] [the Minister] [...] will be happy to reflect on further when [...] [he has][...] received the Committee's substantive report." The response goes on to make some general points about the overall approach adopted by the Government in the development of the legislation, before dealing with some of the specific questions we asked.

19. We were disappointed by the brevity of the Minister's response to our detailed questions. The Department agreed to our taking the lead in Parliament on the pre-legislative scrutiny of the draft clauses, but that task is made more difficult when the Government does not answer the questions which such scrutiny requires. We expect the Government's formal response to this Report to include answers to those questions which were not responded to.

A significant human rights enhancing measure

20. In our view, the proposed reforms constitute a very significant development with the potential to transform the Office of Children's Commissioner into a national human rights institution capable of becoming an international example of best practice if sufficiently well-resourced.

21. When the Office was established in the Children Act 2004, the then Joint Committee on Human Rights expressed a number of serious reservations about the ability of the Children's Commissioner to operate as a national human rights institution of the sort expected by international standards.[12] Our predecessor Committee was particularly concerned about the lack of a human rights-based mandate grounded in the UNCRC, significant omissions from the Commissioner's powers, and the Commissioner's lack of independence from the Secretary of State.

22. The reforms contained in the draft clauses directly address many of those concerns and therefore represent a step-change in the UK's implementation of the UNCRC. In particular, giving the Commissioner a rights-based mandate, within the framework of the UNCRC; providing the Commissioner with the stronger powers necessary to fulfil that mandate; the focus on vulnerable children; the strengthened independence from the Secretary of State; and the potential for a stronger and more direct relationship with Parliament are all significant improvements on the existing Office which are likely to enhance the UK's implementation of the UNCRC. We welcome the draft provisions in principle as constituting a significant human rights enhancing measure.

23. Nevertheless we do have some concerns; and the purpose of this Report is to identify possible ways of improving the draft legislation in the light of those international standards and best practice.

Public sector duty

24. We received a number of submissions advocating the adoption of a public sector duty to have regard to the UNCRC similar to that which has recently been introduced in Wales.[13] The purpose of our Report is to identify possible ways of improving the draft legislation in the light of those international standards and best practice.

25. The Government indicated in its response to our letter that it has no plans to introduce a public sector duty to have regard to the UNCRC in England. The Welsh Assembly Government has already introduced a UNCRC public sector duty, requiring Welsh Ministers to have due regard to the Convention when planning and developing new legislation, and the Scottish Government is consulting on a proposal for another form of UNCRC duty.[14] The Government has indicated that it will be noting any developments in Scotland and Wales with interest, but in the meantime its focus is on ensuring Government policies are consistent with the Articles of UNCRC and raising awareness and understanding of UNCRC across Whitehall.

26. We will be seeking evidence on the practical operation of the new Welsh duty on ministers to have regard to the UNCRC, and on the proposed duty in Scotland, to help inform our scrutiny of the Bill when it is published.

1   Reform of the Office of the Children's Commissioner: draft legislation (CM 8390) (July 2012). Back

2   Dunford Review, Cm 7981, accessible online at: Back

3   Press Release, Department for Education, 9 May 2012, accessible online at: Back

4   A full chronology of the process of consultation can be found in Standard Note, SN/SP/6347  Back

5   See e.g. Ninth Report of Session 2002-03, The Case for a Children's Commissioner for England; Tenth Report of Session 2002-03, The UN Convention on the Rights of the ChildBack

6 Back

7   Twelfth and Nineteenth Reports of Session 2003-04. Back

8's_Commissioner_Inquiry_Written_Evidence.pdf Back

9 Back

10   See Press Notice on the Committee's Legislative Scrutiny Priorities 2012-13 Back

11   Ev 1. Back

12   Nineteenth Report of Session 2003-04, Children BillBack

13   See e.g. the evidence of the evidence of the Children's Commissioner Review Co-ordinating Group, the Children's Rights Alliance and Rights of the Child UK. Back

14   As far as we are aware there is no equivalent development in Northern Ireland. Back

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Prepared 7 December 2012