1 Background
Introduction
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: https://www.education.gov.uk/publications/eOrderingDownload/Cm-7981.pdf Back
3
Press Release, Department for Education, 9 May 2012, accessible
online at: http://www.education.gov.uk/inthenews/inthenews/a00208753/childrens-bill-family-support 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 Child. Back
6
http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/96/96.pdf Back
7
Twelfth and Nineteenth Reports of Session 2003-04. Back
8
http://www.parliament.uk/documents/joint-committees/human-rights/Children's_Commissioner_Inquiry_Written_Evidence.pdf Back
9
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/publications/and
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/publications/previous-sessions/Session-2010-12/ Back
10
See Press Notice on the Committee's Legislative Scrutiny Priorities
2012-13 http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news/jchr-legislative-scrutiny-priorities-for-2012-13/ Back
11
Ev 1. Back
12
Nineteenth Report of Session 2003-04, Children Bill. Back
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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