3 Powers
The Government's approach
79. The Government intends the Commissioner to have
the necessary powers to carry out its new role effectively, including
new powers where existing powers are not strong enough for the
new mandate.
80. The draft clauses contain in proposed new s.
2(3) Children Act 2004 a list of what the draft Explanatory Notes
describe as "additional activities that the Commissioner
may undertake in the exercise of the primary function."[45]
Some of these carry forward similar provisions in the existing
Act, extended in some cases to reflect the new mandate to promote
and protect rights, while others are additions to the existing
powers.
81. The international standards require specificity
about the Commissioner's powers in the legislation establishing
the office. They also contain detailed indicative lists of the
sorts of activities such institutions are recommended to carry
out[46] and must therefore
have the necessary powers to do. We asked the Government whether
its intention is that the Commissioner should have the power to
carry out all the activities recommended by the UN Committee on
the Rights of the Child in paragraph 19(a) to (t) of General Comment
No. 2 and all of the competences and responsibilities set out
in the ENOC standards; and, if not, to identify which the Commissioner
is not intended to have and why.
82. The Government's response does not directly answer
these questions, but says that the overall approach to the draft
legislation has been to be generally permissive rather than prescriptive,
and not to overload the draft Bill with unnecessary detail. The
Minister's preference is to avoid setting out a long list of activities
in legislation. The response does not refer to any of the relevant
international standards in detail but makes the general assertion
that "having considered the documents in the round, I am
confident that under our proposals the reformed OCC would possess
all the appropriate characteristics."
83. We welcome the Government's "generally permissive"
approach in the draft legislation—giving the Commissioner
the powers to carry out certain activities but not requiring them
to do so. We also understand the Government's desire not to overload
the Bill with unnecessary detail and preference for setting out
the broad types of activity that the Commissioner may undertake,
rather than listing each specific activity.
84. We accept that the "additional activities"
spelled out in proposed new s. 2(3) are not intended to be an
exhaustive list of the Commissioner's powers. The Commissioner
already has a general power to "do anything which appears
to him to be necessary or expedient for the purpose of, or in
connection with, the exercise of his functions,"[47]
and that general power will be retained by the Commissioner. We
accept that the Commissioner may therefore have certain powers
which are not spelt out on the face of the draft clauses but which
are implicit in the undoubtedly wide general power to promote
and protect children's rights.
85. Our approach, however, is grounded in the international
standards which makes a virtue of specificity when it comes to
setting out the Commissioner's powers. We
recommend that the Commissioner be invested with the power to
undertake all of the activities recommended by the UN Committee
on the Rights of the Child in paragraph 19(a) to (t) of General
Comment No. 2. If the Government does not intend to grant the
power to undertake any of those activities, it should make that
clear on the face of the Bill; in doing so, the Government should
identify which specific activities the Commissioner is not intended
to undertake. Including more specific activities in the Bill,
though, does not make the general approach any less permissive.
It should be made clear that, whatever the final list of additional
activities in the proposed new s. 2(3), it is not to be considered
exhaustive.
No power to hear individual complaints
86. The Government's response does make clear, however,
that the remit of the Children's Commissioner will not include
a quasi-jurisdictional role in relation to complaints, because
this would detract from its strategic role. This has the support
of the current Children's Commissioner who has expressed, in correspondence
with us, her view that it would be inappropriate to confer ombudsperson
status on the Commissioner. She takes the view that to perform
this ombudsperson function would require a larger operation, with
a larger budget, which is neither necessary nor feasible at present.
It is also consistent with the view of our predecessor Committee
when it reported on the case for establishing both an equality
and human rights commission and a children's commissioner.
87. 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. Assuming that increased resources are
not an option in the current economic climate, we agree that there
is a risk that the Commissioner would become overwhelmed by the
sheer volume of complaints and that this would detract from their
strategic role. We welcome, however, the Commissioner's power
to consider or research the availability and effectiveness of
both complaints procedures and advocacy services,[48]
and we encourage the Commissioner to make early use of these powers.
Power to advise on how to act
compatibly with children's rights
88. A number of the "additional activities"
in proposed new s. 2(3) are carried forward from the 2004 Act
as originally enacted, but extended to cover children's "rights"
as well as their "views and interests". During the 2004
Act's passage through Parliament, concern was expressed by the
then Joint Committee on Human Rights, the devolved Commissioners
and others that the language in which the Commissioner's powers
were couched was too weak for the new office to be effective:
the vocabulary of "encouraging", "taking into account"
and "considering or researching", for example, was considered
symptomatic of the weakness of the Commissioner's proposed mandate
and reflected the essentially procedural nature of the scheme,
whereby the Commissioner's role was merely to promote the views
and interests of children as merely relevant considerations to
be taken into account in the policy process.
89. In our view, the retention of some of this language
in the list of powers in proposed new s. 2(3) sits uneasily with
the Commissioner's more robust and proactive function of protecting
and promoting children's rights. In particular, the power in proposed
new s. 2(3)(a), to encourage persons exercising functions or engaged
in activities affecting children to take account of their rights,
views and interests, is based on a similar provision in the 2004
Act, but merely extended to cover "rights".
90. We believe the statutory language would be improved
if reference to 'encouragement' and 'taking rights into account'
were replaced with more robust language, so as to reflect the
new primary function of the Commissioner, i.e. to protect and
promote children's rights. A consistent criticism of the current
Commissioner has been lack of effectiveness, and we are concerned
that this may persist if the Government retains the same language
of the previous, weaker legislative framework.
91. We recommend
that the essentially procedural provision in Clause 2(3)(a) should
be reformulated so as to reflect not only the new primary function
of the Commissioner, but also the desire to make the Office of
Commissioner as effective as possible.
A suggested reformulation is set out below:
2(3) In the discharge of the primary function the
Children's Commissioner may, in particular—
(a) encourage persons exercising functions or
engaged in activities affecting children to take account of their
views and interests; and
(aa) advise persons exercising functions or engaged
in activities affecting children how to act compatibly with children's
rights.
Power to investigate
92. It is the Government's intention that the Children's
Commissioner should have the power to carry out investigations:
this is expressly included in the list of powers which the Minister
told Parliament the Commissioner must have "in order to carry
out the role effectively".[49]
It is also clear that this is intended to be an additional power
to the power to "undertake research", which is mentioned
separately in that list of necessary powers. As presently drafted,
however, the draft clauses do not achieve the Government's intention.
93. Express provision is made in the draft clauses
for "considering and researching" certain matters,[50]
and there is also an existing power to hold an inquiry into the
case of an individual child if it raises issues of public policy
of relevance to other children.[51]
However there is no express power to investigate an issue which
the Commissioner considers to raise a question of compatibility
with children's rights.
94. We asked the Government whether the reference
to "research" in the draft clauses is intended to include
"investigate", and whether the power to investigate
should be expressly included in the list of permissive powers
in the Bill, but the Minister did not respond to this question.
95. We welcome the Government's clear intention that
the Children's Commissioner should have the power to carry out
full and robust investigations. Investigating is an important
function of national human rights institutions, as the international
standards make clear. Investigating is different from researching,
and may also differ from conducting a full inquiry into the case
of an individual child which raises wider issues, and in our view
there is therefore a potentially significant gap in the Commissioner's
powers.
96. We 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,
in order to give effect to the Government's clear intention, and
this express power should be in addition to the proposed powers
to "consider and research". The
following amendments to the draft clauses would give effect to
this recommendation.
Proposed new s. 2(3) should include after sub-paragraph
(g) a new sub-paragraph:
'(gg) investigate any issue which raises questions
of compatibility with children's rights'.
Proposed new s.2(3)(h) would require consequential
amendment to read:
'(h) publish a report on any matter considered, researched
or investigated under this section.'
Power to initiate and intervene
in legal proceedings
97. The draft clauses make no provision for the Commissioner
to initiate or intervene in legal proceedings. General Comment
No. 2 states[52]
that NHRIs should have the power to support children taking
cases to court, including the power (a) to take cases concerning
children's issues in the name of the NHRI and (b) to intervene
in court cases to inform the court about the human rights issues
involved in the case.
98. We asked the Government if it intends that the
Commissioner should have the power to bring judicial review proceedings
in the name of the Commissioner, and to intervene as a third party
in legal proceedings. The Government's response states that this
is not the Government's intention: the OCC will not have "a
statutory role in relation to initiating and intervening in legal
proceedings." The reason given for this position is that
the Government is "concerned that establishing a [...] statutory
role in relation to initiating and intervening in legal proceedings
could lead to the Commissioner being swamped with requests to
take forward individual cases, which would detract from its strategic
role".
99. However, the Government's position appears somewhat
equivocal, as the Minister also said in his response to our letter
that "the reformed OCC may, as at present, seek to bring
judicial review proceedings or to offer independent advice to
the courts on matters relating to children's rights in certain
circumstances."
100. This ambiguity in the Government's position
leaves scope for confusion and uncertainty. Clarity and specificity
are particularly important in relation to this particular power:
the Northern Ireland Human Rights Commission, for example, was
once held by courts to lack the power to intervene as a third
party in litigation because it was not expressly authorised in
its parent statute.[53]
We note that the Equality and Human Rights Commission has an express
power in its parent statute to institute or intervene in legal
proceedings.[54]
101. We agree with the Government's concern to shield
the Commissioner from being swamped with requests to take forward
individual cases, which would clearly detract from its strategic
role. We do not agree, however, that the mere existence of a power
to initiate and intervene in legal proceedings necessarily has
that consequence. On the contrary, we consider that an appropriately
tailored power to do so is an important tool in support of that
strategic role, as the international standards recognise. The
Commissioner might be uniquely placed, for example, to intervene
in or even initiate legal proceedings in relation to a matter
of general public interest and concern such as the use of restraint
on children in secure training centres, or other matters in which
the Commissioner has built up particular knowledge and expertise.
In our view, the Government's concern can be accommodated by drafting
the power in such a way as to make it compatible with the Government's
intention that the Commissioner should concentrate on strategic
issues that affect a large number of children rather than provide
advice and assistance to individual children.
102. We recommend
that 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
in s. 30 of the Equality Act 2006. We acknowledge that the use
of such a power could be resource intensive and we would expect
it to be used sparingly in practice. We
suggest an amendment below which would give effect to this recommendation.
New clause:
'( ) The Children's Commissioner shall have the power
to institute or intervene in legal proceedings, whether for judicial
review or otherwise, if it appears to the Commissioner that the
proceedings are relevant to the discharge of the Commissioner's
primary function.'
Private providers
103. Some of the powers conferred on the Children's
Commissioner by the draft clauses appear not to be available in
relation to private providers. Given the increasing involvement
of private providers in children's services, such as children's
homes for example, this leaves a potentially significant gap in
the Commissioner's powers which could seriously affect the ability
to discharge in a practical and effective way the primary function
of promoting and protecting children's rights.
104. For example, the draft clauses impose a requirement
to respond to recommendations made in reports by the Commissioner,
within a time period reasonably specified by the Commissioner,
specifying in writing what action the person who is the subject
of the recommendations is taking or proposing to take in response
to those recommendations.[55]
This is a welcome and necessary power which will help the Commissioner
to perform their new function more effectively. As currently
drafted, however, the requirement to respond to the Commissioner's
recommendations only applies to persons "exercising functions
under an Act or an instrument made under an Act."
105. The same problem exists in relation to the important
power of the Commissioner to obtain information. The draft clauses
place a duty on bodies with statutory functions to provide the
Commissioner with information that he or she requests, as long
as the request is reasonable and it is information that the body
is able to disclose lawfully to the Commissioner.[56]
106. We asked the Government whether, in light of
the increase in contracted-out children's services, the obligations
to respond to the Children's Commissioner's recommendations and
to provide information to the Commissioner should include persons
exercising "functions of a public nature" within the
meaning of the Human Rights Act. The Government did not answer
this question. In our view, confining the scope of these important
powers to persons exercising statutory functions is too narrow
an approach in an era of increasing resort to private providers.
It means that as the use of private providers increases, so the
Children's Commissioner's powers shrink. We cannot believe that
this is the Government's intention.
107. We recommend
that 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.
108. We also note that the important power to enter
premises for the purpose of interviewing a child, or for the purpose
of observing the standard of care provided to children accommodated
or cared for there,[57]
is subject to an exception for "a private dwelling".
We accept that there are strong human rights reasons for making
sure that intrusive powers such as powers of entry are not exercised
in a way which has a disproportionate impact on important rights
such as the right to respect for private life and home in Article
8 ECHR. We note, however, that some important children's services
such as foster care and child-minding are, by their very nature,
provided in private dwellings. The Children's Commissioner has
a legitimate interest in the provision of such services and we
believe that a question arises as to whether a wholesale exemption
for private dwellings, rather than more detailed safeguards, is
compatible with the effective discharge of the Commissioner's
primary function.
109. We did not ask the Government about this in
correspondence and therefore, rather than make a substantive recommendation,
we would like the Government to respond to this point and explain
its thinking on this issue.
110. We recommend
that the Government explain how the exception for "private
dwellings" from the power to enter premises and conduct interviews
affects the ability of the Commissioner to perform their function
in relation to services such as foster care and child-minding
which take place in such settings.
45 Draft Explanatory Notes, para. 16. Back
46
General Comment No. 2 para. 19(a). Back
47
Schedule 1, para. 2 Children Act 2004. Back
48
Proposed new s. 2(3)(e) and (f) Children Act 2004. Back
49
Written Ministerial Statement, HC Deb 9 July 2012 col 3WS. See
also the reference in the draft Explanatory Notes to "investigations
[...] that he or she has undertaken in carrying out the primary
function." Back
50
Proposed new s. 2(3)(e)-(g). Back
51
Section 3(1) Children Act 2004. Back
52
Para. 14. Back
53
See In re Northern Ireland Human Rights Commission [2002]
UKHL 25. Back
54
Section 30 Equality Act 2006. Back
55
Proposed new s. 2C(3) Children Act 2004, which broadly replicates
existing s. 2(10) Children Act 2004. Back
56
Proposed new s. 2F(1) Children Act 2004, which broadly replicates
existing s. 2(9) Children Act 2004. Back
57
Proposed new s. 2E(2) Children Act 2004. Back
| 
