Conclusions and recommendations
Background
1. We
welcome the Government's UNCRC assessment as a good precedent.
(Paragraph 16)
2. 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. (Paragraph
19)
3. We
welcome the draft provisions in principle as constituting a significant
human rights enhancing measure. (Paragraph 22)
4. 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. (Paragraph 26)
Mandate
5. We
welcome the proposed change in the Commissioner's primary function,
from one of 'promoting awareness of the views and interests of
children in England' to one of 'promoting and protecting the rights
of children in England'. A statutorily explicit rights-based remit
represents a significant strengthening of the Commissioner's mandate,
and is an important step in the transformation of the office into
a fully fledged human rights institution for children. A mandate
to "promote and protect" human rights is the first requirement
in the international standards for a body to be recognised as
a national human rights institution. (Paragraph 30)
6. We
recommend that, in order to give effect to the recommendation
of the Dunford Review and the Government's intention that the
reformed Children's Commissioner should have a rights-based remit
grounded in the UNCRC, the Bill should expressly define "the
rights of children in England" to include the rights in the
UNCRC for the purposes of defining the Commissioner's primary
function. (Paragraph 38)
7. We
expect the Government's intention to be that the definition of
the UNCRC rights in the Bill includes the rights in the Optional
Protocols ratified by the UK, especially given the clarity required
by the relevant international standards on this question. We cannot
see any reason why this should not be made explicit on the face
of the Bill. We recommend that the definition of the UNCRC in
the draft clauses be amended to include an express reference to
the Optional Protocols ratified by the UK. (Paragraph 42)
8. We
recommend that the draft clauses be amended to include in the
definition of the rights of children required to be promoted and
protected by the Commissioner under their duty, not only the rights
in the UNCRC but any human rights of children contained in international
treaties. (Paragraph 47)
9. In
our view, non-binding international standards do not give rise
to rights which it should be the function of the Children's Commissioner
to promote and protect, but they do provide a useful source of
standards and guidance to the Commissioner in the discharge of
their primary function. We are sure that it is the Government's
intention that the Commissioner should be permitted to take such
international standards into account in the exercise of their
functions. We consider, however, that the Children's Commissioner
should be required in the Bill to have regard to all relevant
international standards concerning the rights of children and
we recommend that the draft clauses be amended to that effect.
(Paragraph 49)
10. We
welcome the Government's apparent intention, implicit in paragraph
21 of the draft Explanatory Notes, that the rights of children
that the Children's Commissioner is charged with promoting and
protecting include rights which children have in domestic law
where these are more extensive than those in the UNCRC. We agree
with the concern of the Children's Rights Director that the lack
of a clause making this intention explicit on the face of the
Bill may give rise to uncertainty about the scope of the Commissioner's
mandate. Such uncertainty would be both undesirable in practice
and inconsistent with the relevant international standards which
require specificity in the statutory definition of the Commissioner's
mandate. We recommend that the draft clauses should be amended
so that it is plain on the face of the legislation that the Commissioner
is responsible for promoting and protecting children's rights
or interests in domestic law or statutory guidance where those
are more extensive than those in the UNCRC. (Paragraph 55)
11. We
welcome the Government's clear indication of its intention that
systematically monitoring the implementation of the UNCRC in the
UK and reporting on progress is within the scope of the Commissioner's
primary function. We understand the Government's reluctance to
overload the Bill with unnecessary detail and its preference for
setting out the types of activity that the Commissioner may undertake
rather than listing each specific activity. (Paragraph 62)
12. However,
we are mindful of the requirements in the relevant international
standards that the Commissioner's mandate be set out clearly in
legislation which specifies the Commissioner's functions. Monitoring
the implementation of the UNCRC is not merely a particular activity
of the Children's Commissioner, it is an important function of
any independent human rights institution for children. To ensure
that there is no scope for uncertainty about Parliament's intention
in relation to such an important matter, we therefore recommend
that the draft clauses should be amended so as to include an explicit
reference to the Commissioner's function of monitoring the UK's
implementation of the UNCRC. (Paragraph 63)
13. We
recommend that the draft clauses should be amended so as to include
promoting awareness and understanding of rights, as well as the
views and interests of children in England, in the mandate of
the Commissioner. The relevant clause, as currently drafted, does
not give effect to the Government's intention that the Commissioner's
mandate be rights-based. In its present form, it replicates the
current function without extending that function to include promoting
awareness of rights. In our view, such a change would ensure clear
legislative drafting of the mandate and functions of the Commissioner,
as required by the relevant international standards. (Paragraph
69)
14. We
recommend that the title of the Commissioner be changed to include
"young people" as well as "children", both
in order to encourage older teenagers to consider the Commissioner
of relevance to them, and to reflect the fact that the Commissioner
will have functions in relation to certain 18-24-year-olds. (Paragraph
77)
Powers
15. 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. (Paragraph 85)
16. 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, and we encourage
the Commissioner to make early use of these powers. (Paragraph
87)
17. 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. (Paragraph
91)
18. 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". (Paragraph
96)
19. 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. (Paragraph 102)
20. 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. (Paragraph 107)
21. 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. (Paragraph 110)
Independence and accountability
22. 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. (Paragraph 120)
23. 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.
(Paragraph 121)
24. 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. (Paragraph 123)
25. 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. (Paragraph
125)
26. 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. (Paragraph 128)
27. 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. (Paragraph 129)
28. 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.
(Paragraph 131)
29. 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. (Paragraph
135)
30. 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.
(Paragraph 139)
Devolution
31. In
light of the unanimous view of the four commissioners, we are
not persuaded that there is any evidence of a need to change the
current arrangements concerning the relationship between the English
Commissioner and the devolved Commissioners. We recommend that
the draft clauses allowing the Children's Commissioner for England
to delegate the exercise of functions to the devolved Commissioners
be left out of the Bill. We also recommend that the four Commissioners
consider whether the Memorandum of Understanding could be improved
and make that document publicly available. (Paragraph 143)
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