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


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


 
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Prepared 7 December 2012