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

Conclusions and recommendations


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)


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)


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 "" 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)


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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Prepared 7 December 2012