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

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


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.


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.


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 "" 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 "" 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 "" 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.


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.


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.


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  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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Prepared 7 December 2012