4 Independence and accountability
The Government's approach in
the draft clauses
111. The Dunford Report found that there is a perception
that the Children's Commissioner is not sufficiently independent
from Government and that this has affected the Commissioner's
credibility with children's organisations. It also found that
to date there has only been limited parliamentary scrutiny of
the Children's Commissioner's work, or assessment by Parliament
of the impact that the Children's Commissioner has had on improving
children's lives.
112. We welcome the Government's commitment to address
both of these significant findings. The draft clauses go a long
way towards addressing the concern that the current Office of
the Children's Commissioner falls short of the UNCRC requirements
in its degree of independence from Government, and they also take
some steps towards strengthening the institution's relationship
with Parliament. We welcome, for example, the removal of the requirement
that the Children's Commissioner consult the Secretary of State
before holding an inquiry,[58]
and the repeal of the Secretary of State's power to direct the
Children's Commissioner to hold an inquiry.[59]
113. The relevant international standards have long
been clear about the requirement of independence from Government.[60]
Indeed this is a central requirement of the Paris Principles which
date from 1993. The Paris Principles also state that NHRIs should
establish an "effective co-operation" with their national
Parliament. The international standards concerning the relationship
between NHRIs and Parliament are only more recently emerging.
The Belgrade Principles were agreed at independent expert level
in February 2012 and are awaiting approval by the General Assembly
of the UN. However, they provide useful guidance as to how the
relationship between human rights institutions such as the Children's
Commissioner can strengthen and deepen their relationship with
Parliament.
114. Against the background of these international
standards we have considered whether there is further scope both
for strengthening the Commissioner's independence from the Government,
and for increasing the Office's accountability to and engagement
with Parliament.
Independence from Government
FINANCIAL CONTROL AND INDEPENDENCE
115. The Paris Principles state that a National Human
Rights Institution should have "adequate funding [...] to
enable it to have its own staff and premises, in order to be independent
of the Government and not subject to financial control which might
affect its independence."
116. In the Government's response to our letter,
this is an area where the Government believes that, in general,
the Commissioner meets the relevant international standards, "but
with a caveat." The Children's Commissioner will have a great
deal of latitude in deciding how best to use its resources, but
as a Non-Departmental Body (NDPB) it will be required to meet
certain conditions that have been imposed on all NDPBs, in order
to ensure accountability for spending public money—in particular
in relation to expenditure on appointments, marketing and communications.
The Government says that, while respecting the Children's Commissioner's
independence, the Commissioner cannot and should not be immune
from the constraints that apply to other NDPBs. The Framework
Agreement Document between the Department for Education and the
Children's Commissioner (dated 1 April 2012) therefore subjects
the Children's Commissioner to the same set of rigorous financial
controls as apply to all other NDPBs.
117. We accept that the principle of independence
recognised in the Paris Principles should not be used to shield
national human rights institutions such as the Children's Commissioner
from accountability for their expenditure of public money. As
publicly funded bodies they receive money from the taxpayer and
independent human rights institutions must be accountable for
how they spend it. The difficulty lies in devising satisfactory
arrangements for such accountability which do not destroy the
independence of such institutions by making them effectively subject
to the control of the Government which provides the funding.
118. We have concerns as to whether the NDPB model
being used by the Government, which entails a Framework Agreement
between the Department and the Commissioner, is an appropriate
model for national human rights institutions. The degree of financial
control exerted by the Government through the Framework Agreement
can give rise in practice to real inconsistencies with the requirement
in the Paris Principles that National Human Rights Institutions
should not be subject to financial control which might affect
their independence. To give one example, we understand
that, through the Framework Agreement, the Children's Commissioner
is subject to the current requirement across the public sector
to try and recruit to vacant posts in the first instance from
the current civil service pool. This would mean, for example,
that recruitment to a key staff post within the office of the
Children's Commissioner, such as legal adviser, would have to
be from the pool of Government lawyers, unless an exemption were
obtained from the Secretary of State. This has clear implications
both for the actual and the apparent independence of the Commissioner.
119. We are aware that other models of financial
control exist which might be more compatible with the Commissioner's
independence, while still ensuring full accountability for the
expenditure of public money. We understand that in Scotland, for
example, the budget of the Scottish Children's Commissioner is
set annually by the corporate body of the Scottish Parliament
(along with other human rights bodies such as the Scottish Human
Rights Commission). We are also aware that models of financial
control involving a committee of Parliament, rather than a Government
department, have also been considered in the past in relation
to the Equality and Human Rights Commission and are currently
being discussed in the context of possible reforms to that body.[61]
120. We recommend
that the Government think again about the appropriateness of the
NDPB model for human rights institutions such as the Children's
Commissioner. We also 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.
121. We also
ask that the proposed new Framework Agreement between the reformed
Office of the Children's Commissioner and the Department for Education
be made available in draft as soon as possible to enable it to
be scrutinised for compatibility with the Paris Principles requirement
of effective independence from executive control.
GOVERNMENT REQUESTS FOR COMMISSIONER'S
ADVICE
122. The draft clauses provide that the Commissioner
may advise the Secretary of State on the rights, views and interests
of children.[62] According
to the draft Explanatory Notes, it is intended that the Commissioner
will give such advice on his or her own initiative, but it is
also envisaged that any Secretary of State may request the Commissioner's
advice.[63] Retaining
such a Government advisory role for the Commissioner may be thought
to give rise to a risk that the Commissioner will be perceived
as not sufficiently independent from the Government, especially
if the requests for advice and the advice provided in response
are not published. We asked about the Government's intentions
in this respect but this question was not answered in the Government's
response.
123. We recommend
that 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, so as to ensure accountability
and transparency, and to prevent the risk of a perception of a
lack of independence.
124. Whether the Commissioner is obliged to respond
to Government requests for advice is an important question. Just
as a power in the Secretary of State to direct the Children's
Commissioner to hold an inquiry is incompatible with the requirement
for independence, so the possibility of requests for advice by
a Secretary of State gives the Government a means of influencing
the priorities and agenda of the Commissioner in a way which is
equally incompatible with the requirement of independence. The
draft Explanatory Notes suggest that whether and how the Commissioner
chooses to respond to requests for advice from any Secretary of
State "will be entirely a matter for his or her judgement".[64]
There is nothing in the draft clauses, however, which makes this
clear. Our question on this point was not answered by the Government.
125. We 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, so as to ensure that the Office of
the Children's Commissioner is seen to be, and is in practice,
sufficiently independent from Government.
WEBSITE AND PREMISES
126. As all the international standards make clear,
and as the Dunford Report explicitly recognised, the appearance
of independence from Government is for an independent human rights
institution such as the Children's Commissioner very important.
Perceptions of independence can be fragile and easily affected
by what might seem to be relatively minor administrative arrangements
concerned with costs and efficiency. Parliament must remain vigilant
to ensure that the appearance of independence of human rights
institutions is not undermined by administrative decisions.
127. The current Children's Commissioner, in her
letter to us dated 3 October 2012, expressed serious concerns
about being required to move the Children's Commissioner's website
onto the unified ".gov.uk" domain, so that anybody searching
for the Commissioner's webpage will have to enter through a Government
portal. We agree with the Commissioner's concern that this is
potentially damaging to the Commissioner's appearance of independence
from Government, because it gives the impression that the Commissioner
is an agency of Government. We note that the website of the Equality
and Human Rights Commission does not have ".gov.uk"
domain.[65] We also note
that the Independent Reviewer of Terrorism Legislation has adopted
an email address which includes the words "independent reviewer"
in the address.
128. We recommend
that the Children's Commissioner's website be hosted outside of
the ".gov.uk" domain and that consideration be given
to including the word "independent" in the Commissioner's
web address. We also think it is important to the independence
of the Children's Commissioner that its premises should continue
to be independently located.
Engagement with Parliament
129. The draft clauses make some provision to give
effect to the Government's wish to encourage greater parliamentary
engagement with the Commissioner's work and to increase the Commissioner's
accountability to Parliament for the impact of the Commissioner's
work on the lives of children. As the draft Explanatory Notes
acknowledge, this is more a matter for Parliament than the Government.
However, we have considered whether there is more that can be
done both in the Bill and in commitments the Government can make
about guaranteeing parliamentary time for certain business. We
intend to help strengthen Parliament's engagement with the Children's
Commissioner, for example by holding evidence sessions on the
Commissioner's Annual Report.
ADVISING PARLIAMENT
130. The draft clauses provide that the Children's
Commissioner may, in the discharge of the primary function of
protecting and promoting children's rights, "advise the Secretary
of State".[66]
The international standards envisage that children's commissioners
should advise not only the Government but also Parliament,[67]
and that children's rights need to be "main-streamed"
in both policy-making and law-making. According to the evidence
of the current Children's Commissioner, the Office already frequently
provides advice to Parliament and to individual parliamentarians
in relation to issues concerning children. It would therefore
better reflect not only international standards but existing practice
if the legal framework were explicit about this. In our view,
such a role for the Commissioner could help facilitate an effective
dialogue with Parliament, at the same time as improving implementation
of the UNCRC by equipping parliamentarians with the expertise
and knowledge to scrutinise the UK's performance.
131. We recommend
that the Children's Commissioner's function 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.
PARLIAMENTARY DEBATES ON THE COMMISSIONER'S
REPORTS
132. We welcome the fact that the content of the
Commissioner's annual report is prescribed by the draft clauses
with the object of Parliament scrutinising the Commissioner's
activities and impact, and the draft clauses provide for the Commissioner
to lay the annual report before both Houses of Parliament, rather
than through the Secretary of State.[68]
133. According to General Comment No. 2, "States
parties must ensure that an annual debate is held in Parliament
to provide parliamentarians with an opportunity to discuss the
work of the NHRI in respect of children's rights and the State's
compliance with the Convention."[69]
134. This is clearly not a matter for inclusion in
the draft clauses, but a matter for Parliament. Whether time is
made available for such a debate, however, is effectively in the
hands of the Government's business managers. Although the Government
may now regard such matters in the House of Commons to be in the
hands of the Back Bench Business Committee, the international
standards are clear that it is the State's responsibility to secure
an annual debate.
135. We recommend
that the Government give an undertaking to ensure that parliamentary
time is made available for an annual debate centred on the Children's
Commissioner's annual report. Such a debate should take place
in the Government's own parliamentary time, rather than the time
available for back bench business.
APPOINTMENT AND REMOVAL
136. One of the areas most relevant to the independence
of the Commissioner from Government and the Office's accountability
to Parliament is the statutory framework and practical arrangements
for appointment and removal of the post-holder. The draft clauses
seek to address concerns that have been addressed about the Commissioner's
perceived lack of independence by providing for a single, non-renewable
term of six years instead of a renewable five year term.[70]
This is a welcome improvement in terms of strengthening
the Commissioner's independence, although the rationale for choosing
a six year term, rather than the more usual term of seven years
for a non-renewable public office such as this (see, most recently,
the single seven year term for the Information Commissioner introduced
by the Protection of Freedoms Act) has not been made clear by
the Government.
137. However, the Commissioner is still appointed
by the Secretary of State,[71]
and can be removed by the Secretary of State if satisfied that
the Commissioner has become unfit or unable properly to discharge
his functions, or behaved in a way that is not compatible with
his continuing in office.[72]
Although in practice there may be a pre-appointment hearing of
the Secretary of State's chosen candidate (which is obviously
not a matter for statutory regulation), the draft clauses make
no provision for any parliamentary involvement in the Commissioner's
appointment or removal. As the joint submission from children's
NGOs argues, such an arrangement clearly has the potential to
undermine the independence of the Office.
138. We note that in Scotland, both the Commissioner
for Children and Young People and the Scottish Human Rights Commissioner
are appointed by the Scottish Parliament and can only be removed
by the Scottish Parliament. There are other office holders in
the UK who are appointed by Her Majesty the Queen only following
approval of the appointment by the House of Commons, and can only
be removed by Her Majesty the Queen following an address from
both Houses. The Parliamentary Ombudsman perhaps provides the
closest analogy. In addition to the statutory provision of a role
for Parliament, the appointments process for the recent appointment
of a new Ombudsman was designed in such a way as to involve both
the Government and a senior parliamentarian (the Chair of the
Public Administration Select Committee).
139. We recommend
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 including the Scottish
Children's Commissioner and the Parliamentary Ombudsman.
58 Schedule 1, para 1(2), omitting s. 3(3) Children
Act 2004. Back
59
Schedule 1, para 2(1), repealing s. 4 Children Act 2004. Back
60
See the recent UNICEF Report, Championing Children's Rights:
A global study of independent human rights institutions for children-summary
report, pp. 16-18. Back
61
See e.g. the advice of Professor Anthony Bradley QC to the Equality
and Human Rights Commission in connection with the Enterprise
and Regulatory Reform Bill. Back
62
Proposed new s. 2(3)(b) Children Act 2004. Back
63
Draft Explanatory Notes para. 16. Back
64
Draft Explanatory Notes, para. 16. Back
65
www.equalityhumanrights.com Back
66
Proposed new s. 2(3)(b). Back
67
See e.g. Paris Principles para. 3(a). Back
68
Proposed new s. 8(3)(b) Children Act 2004. Back
69
Para. 18. Back
70
Proposed new paras 3(4) and (5) of Schedule 1 to the 2004 Act. Back
71
Para 3(1) of Schedule 1. Back
72
Para 3(7) of Schedule 1. Back
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