3 THE
GOVERNMENT'S
2010 UNCRC COMMITMENT
19. On 6 December 2010, in a Written Ministerial
Statement in connection with the publication of the Independent
Review of the Children's Commissioner, the then Children's Minister,
Sarah Teather MP, gave a commitment on behalf of the Government
that it would always give due consideration to the UNCRC in the
making of new policy and legislation.
I can therefore make a clear commitment that the
Government will give due consideration to the UNCRC articles when
making new policy and legislation. In doing so, we will always
consider the UN Committee on the Rights of the Child's recommendations
but recognise that, like other state signatories, the UK Government
and the UN committee may at times disagree on what compliance
with certain articles entails.[15]
This development was widely welcomed, although it
was not clear from the Statement what this would practically entail
in terms of mechanisms within Government. One of the intentions
behind our inquiry into children's rights was to establish what
the commitment had meant within Government and to assess what
the impact of this commitment had been over the course of the
Parliament.
20. In evidence to us Edward Timpson MP, Minister
of State for Children and Families at the Department for Education,
gave some examples of what the 2010 commitment has achieved:
For example, we now have Cabinet Office guidelines
that before any legislation starts on its journey through Parliament,
it has to have gone through the various articles of the UNCRC
to make sure that it is compliant with them.
We have the sometimes rather excruciating but important
process of the Home Affairs clearance procedure whereby any piece
of legislation has to go through that Committee, which is chaired
by the Deputy Prime Minister, which has a remit to look at whether
a child's rights are being upheld as part of that new legislation.
All government departments have a role in that Committee, and
a whole host of Secretaries of State sit on it. That important
practical step was put in place.[16]
21. Dr Maggie Atkinson, the then Children's Commissioner
for England, told us in evidence that "there are moments
when it is clear that the Government has taken very seriously
its promise in 2010, and there are moments when it hasn't".
She suggested that there had been progress with regard to immigration
in somealthough by no means allcases, but there
were also other areas where concerns had deepened. She noted that
more positive general progress had been made with regard to special
educational needs provision and children and mental health.[17]
22. In evidence to us, Dragan Nastic of Unicef UK
referred to the 2010 commitment as "serious and significant"
and noted the positive implementation of the commitment in terms
of the assessments made by the Government with regard to the Modern
Slavery Bill. He also noted that implementation has been patchy,
citing legal aid as the most obvious example of where no children's
rights assessment was undertaken. Kate Aubrey-Johnson of Just
for Kids Law told us in evidence that the treatment of 17 year-olds
as adults rather than children at police stations was an instance
where the Government had an opportunity to reflect on its rights
under the UNCRC but had not done so.[18]
23. Paola Uccellari of CRAE echoed that there were
"pockets of good practice", noting that a Freedom of
Information request which CRAE had made revealed some areas of
awareness within Government, but also perfunctory responses and
some lack of knowledge amongst Government departments. She added
current proposed policy over secure colleges as another instance
where the Government has clearly not undertaken a proper impact
assessment upon children. She also noted that the commitment had
permitted NGOs and children's rights organisations to "start
[
] conversations" with Government over its assessment
of children's rights.[19]
24. There was also a clearly felt view amongst those
witnesses that the willingness to undertake children's rights
assessments or to consider the Articles of the Convention depended
more upon political will than expertise or awareness. The Minister
in evidence to us echoed this when he said that "a lot of
this [moving forward on children's rights] is about attitude and
whether people really believe that this is a worthwhile exercise".[20]
Natalie Williams of the Children's Society noted that there is
undoubtedly a connection between the situation of migrant and
refugee children having deteriorated in the last five years and
the Home Office having primary responsibility for that group of
children, where the political focus was on immigration policy
rather than children's rights.[21]
25. WE
ACKNOWLEDGE AS
AN IMPORTANT
AND PROGRESSIVE
MOVE THE
COMMITMENT MADE
BY THE
GOVERNMENT IN
DECEMBER 2010 TO
GIVE DUE
REGARD TO
THE UNITED
NATIONS CONVENTION
ON THE
RIGHTS OF
THE CHILD
WHEN DEVELOPING
LAW AND
POLICY. WE
BELIEVE THAT
SUCH A
COMMITMENT, MADE
AT THE
BEGINNING OF
THE NEW
PARLIAMENT BY
AN INCOMING
GOVERNMENT, CAN
HELP KEEP
UP THE
MOMENTUM FOR
THE PROGRESSIVE
REALISATION OF
CHILDREN'S
RIGHTS FOR
THE
FIVE YEARS.
IT WILL
ALSO SIGNAL
THE INTENT
OF THE
NEW GOVERNMENT
IN TAKING
INTERNATIONAL HUMAN
RIGHTS TREATIES
SERIOUSLY. WHILE
SUCH A
COMMITMENT ALONE
CAN ONLY
DO SO
MUCH, WE
NONETHELESS CALL
ON THE
GOVERNMENT
TO RENEW
THE 2010 COMMITMENT.
WE WERE
ALSO VERY
IMPRESSED BY
THE PERSONAL
COMMITMENT TO
CHILDREN'S
RIGHTS AND
THE CONVENTION
SHOWN BY
THE CHILDREN'S
MINISTER DURING
OUR EVIDENCE
SESSION WITH
HIM.
26. WE
BELIEVE THAT
THE 2010 COMMITMENT
DID CHANGE
THINGS FOR
THE BETTER.
HOWEVER, ASIDE
FROM A
FEW RECENT
CLEAR EXAMPLES
WHERE GOOD
PRACTICE HAS
BEEN SUSTAINED
OUTSIDE THE
DEPARTMENT FOR
EDUCATION, THE
MOMENTUM FOR
SPREADING GOOD
PRACTICE AND
AWARENESS THROUGHOUT
GOVERNMENT CONCERNING
THE CONVENTIONAND
TO ENCOURAGE
DEPARTMENTS TO
TAKE THE
ARTICLES OF
THE CONVENTION
SERIOUSLYSEEMS
TO HAVE
LESSENED OVER
THE COURSE
OF THIS
PARLIAMENT. THERE
DOES NOT
SEEM TO
HAVE BEEN
ANY ATTEMPT
MADE TO
GAUGE HOW
WELL THE
COMMITMENT WAS
BEING FULFILLED
OR TO
MONITOR THE
EXTENT TO
WHICH THE
CONVENTION WAS
BEING TAKEN
SUBSTANTIVELY INTO
ACCOUNT BY
GOVERNMENT DEPARTMENTS.
WHILE WE
BELIEVE THE
COMMITMENT HAS
PROVED TO
BE WORTH
FAR MORE
THAN JUST
THE WORDS
WHICH MADE
IT UP,
IT IS
IMPORTANT FOR
GOVERNMENTS IN
FUTURE TO
FOLLOW UP
SUCH COMMITMENTS
MORE AVIDLY
AND TO
ENSURE THAT
THE GOOD
INTENTIONS THEY
SIGNIFY HAVE
PRACTICAL AND
POSITIVE EFFECTS.
27. We have noted in previous Reports that Government
departments do not always seem fully to take into account children's
rights in the material they send to us or otherwise make available
to Parliament. Since the 2010 commitment was given, the Government
has produced three UNCRC memoranda for which we have commended
itin relation to the Education Bill in 2011, the Children
and Families Bill in 2013, and the Modern Slavery Bill in 2014.[22]
However, we have more often been critical of the lack of any such
memorandum or analysis in relation to Bills or proposed policies
which clearly have significant implications for children's rights:
for example, in our reports on the Immigration Bill; the Anti-social
Behaviour, Crime and Policing Bill; the Welfare Reform Bill; the
changes to legal aid, including the residence test; and the Criminal
Justice and Courts Bill.[23]
Departments which appear to be particular offenders are the Home
Office, the Department for Work and Pensions and the Ministry
of Justice.
28. THERE
HAS BEEN
SOME BETTER
PRACTICE THIS
PARLIAMENT FROM
GOVERNMENT DEPARTMENTS
IN CAPTURING
IN THEIR
HUMAN RIGHTS
MEMORANDA THE
IMPACT ON
CHILDREN OF
THEIR LEGISLATIVE
PROPOSALSPARTICULARLY
WITH REGARD
TO THE
CHILDREN AND
FAMILIES BILL
AND THE
MODERN SLAVERY
BILL. HOWEVER,
DEPARTMENTS' POLICIES
ON ASSESSING
COMPATIBILITY WITH
THE UNITED
CONVENTION ON
THE RIGHTS
OF THE
CHILD AND
POTENTIAL IMPACTS
UPON CHILDREN
IS FAR
FROM CONSISTENT
ACROSS GOVERNMENT,
RESULTING IN
SOME SURPRISING
FAILURES TO
ASSESS THE
IMPACT ON
CHILDREN OF
POLICIES WHICH
CLEARLY AFFECT
THEM VERY
SIGNIFICANTLY. THIS
IS ONE
AREA WHERE
THE 2010 COMMITMENT
OUGHT TO
HAVE BEEN
CAPABLE OF
ACHIEVING SIGNIFICANT
PROGRESS. IF
ALL GOVERNMENT
DEPARTMENTS WERE
REQUIRED TO
TAKE THE
TROUBLE TO
CONSIDER HOW
THEIR LEGISLATION
IS COMPLIANT
WITH THE
UNCRC ARTICLES AND
TO REPORT
ON THAT
ASSESSMENT TO
PARLIAMENT, THAT
WOULD CONSTITUTE
A VERY
NECESSARY, AND
SIGNIFICANT, STEP
TOWARDS MAKING
THOSE DEPARTMENTS
MORE AWARE
OF THEIR
DUTIES UNDER
THAT CONVENTION.
THE NEW
GOVERNMENT SHOULD
TAKE STEPS
TO ENSURE
THAT ALL
MEMORANDA ACCOMPANYING
LEGISLATION PROVIDE
A DETAILED
ASSESSMENT OF
THIS SORT
AS A
MATTER OF
COURSE, AND
THAT ALL
DEPARTMENTS HAVE
ACCESS TO
THE NECESSARY
EXPERTISE IN
THE UNCRC TO
HELP THEM
CARRY OUT
THIS NECESSARY
TASK.
INCORPORATION
OF THE
CONVENTION
29. Many children's rights groups have called for
incorporation of the UNCRC into UK law. They believe that this
is the only way in which the Convention can be fully realised
and the rights of children be as fully protected as the Convention
envisages for those states which have signed up to it.[24]
30. We put the issue of incorporation to Dr Atkinson,
the outgoing Children's Commissioner. She said that she did not
necessarily favour full incorporation of the UNCRC as it would
"probably take up too much parliamentary time and not necessarily
be realised". She suggested an incremental process:
What you doalmost by stealth, setting precedents
from the High Court and Supreme Court benchesis nibble
away. You get people to recognise that the rights of the child
are not a scary set of tenets or concepts, but inherent in a civilised
society.[25]
31. The NGO witnesses who appeared before us all
called for the Convention to be incorporated into UK law. They
said that a piecemeal approach was too slow and that full incorporation
was ultimately necessary to ensure that the UNCRC was properly
adhered to. Kate Aubrey-Johnson of Just for Kids Law argued that
"[
] it will take the UNCRC to be incorporated into
domestic legislation to ensure children's rights are placed at
the top of the agenda" as "the Government regularly
argue that the UNCRC and Beijing rules are not binding on domestic
courts when no Strasbourg right is in contention". Incorporation
of the UNCRC into law is necessary, they argued, to ensure a comprehensive
and consistent account of children's rights is taken across government.[26]
32. The Government has said in the past that it will
not incorporate the Convention into UK law because it believes
that "the UNCRC contains a mixture of rights and aspirations
that are often imprecisely defined [
] [which is] why the
'must have regard to' formulation is a better approach"[27].
33. Edward Timpson MP, the Minister of State for
Children and Families at the Department for Education, elaborated
upon this in oral evidence to us. He stated that there was no
"block" upon incorporation, but rather that the position
of the Government is that it was "confident that the laws
and policies that [
] [the Government] [
] has in place
already are strong enough to comply with the Convention."
He acknowledged the complexities that would be involved in trying
to incorporate the Convention and said that while the Government
was "not at a stage of incorporation" it would "continue
to keep it under review". [28]
34. IDEALLY,
WE WOULD
LIKE TO
SEE THE
UNITED NATIONS
CONVENTION ON
THE RIGHTS
OF THE
CHILD INCORPORATED
INTO UK LAW
IN THE
SAME WAY
THAT THE
EUROPEAN CONVENTION
ON HUMAN
RIGHTS HAS
BEEN INCORPORATED
BY MEANS
OF THE
HUMAN RIGHTS
ACT. HOWEVER,
WE ARE
MINDFUL THAT
THESE TWO
CONVENTIONS DIFFER
CONSIDERABLY IN
HOW THEY
ARE FRAMED
AND IN
THE MECHANISMS
WHICH EXIST
TO SUPPORT
THEM INTERNATIONALLY.
IN PRACTICAL
TERMS MORE
MUST BE
DONE TO
REALISE THE
AIMS OF
THE UNITED
NATIONS CONVENTION
ON THE
RIGHTS OF
THE CHILD
THROUGH LEGISLATION
AND THROUGH
POLICY. THE
MODERN SLAVERY
BILL SHOWS
THIS CAN
BE DONE
IN A
PARTICULAR POLICY
AREA. IF
SUCH A
DEDICATED FOCUS
ON CHILDREN'S
RIGHTS WERE
MANIFEST IN
LEGISLATION AND
POLICY ACROSS
THE BOARD,
MUCH OF
THE DEBATE
ABOUT INCORPORATION
VERSUS NON-INCORPORATION
WOULD BECOME
AN IRRELEVANCE.
IT WOULD
ALSO BE
A BETTER
WAY OF
PROCEEDING IN
TERMS OF
ALLOWING FOR
FRUITFUL DISCUSSIONS
TO TAKE
PLACE ON
PARTICULAR AREAS
OF CHILDREN'S
RIGHTS THAT
WERE BEING
ADDRESSED AT
ANY GIVEN
TIME.
THE
OPTIONAL PROTOCOL
35. The Third Optional Protocol to the UN Convention
on the Rights of the Child would permit individual children to
have the right of petition directly to the UN Committee on the
Rights of the Child. The UK Government currently has no plans
to sign up to this Optional Protocol, although it has ratified
the equivalent Protocols with regard to the UN Convention on the
Rights of Persons with Disabilities (UNCRPD) and the Convention
for the Elimination of Discrimination Against Women (CEDAW). Its
current position is that it is "still considering how this
Optional Protocol [to the UNCRC] might add practical value for
people in the UK" and will "keep the matter under review
in light of emerging information about procedures and practice"
It is also assessing the effects of the UK's ratification of the
Optional Protocols to the UNCRPD and CEDAW.
36. Although we will be touching on matters relating
to devolution and children's rights towards the end of the Report,
it is worth noting here that while the Scottish Government has
welcomed the Optional Protocol in principle and has indicated
that it "would be minded to offer [
] measured support
for its signature and ratification in the future", it believes
that "before doing so [
] it is important to better
understand exactly how the UN Committee on the Rights of the Child
intends to apply the Protocol".
37. The NGO witnesses from whom we took oral evidence
were all keen to see the Optional Protocol ratified. As Paola
Uccellari of CRAE put it, "[a]ccess to justice for children
is particularly important because they are particularly vulnerable
to rights abuses and their impacts". Dragan Nastic of Unicef
UK endorsed this view. Children's rights NGOs feel that Government's
position on thisto 'wait and see'feels, as Paola
Uccellari of CRAE put it, "like a way of kicking the issue
into the long grass". The situation of children with regard
to access to justice is not the same as that of persons with disabilities
or women and "for them an independent complaints mechanism
to the UN Committee is particularly important".[29]
The impact of the analogous Optional Protocols to CEDAW and the
UNCRPD are not necessarily relevant; and the OCCE's lack of any
power to investigate any individual complaintsas compared
to its Scottish, Welsh and Northern Ireland counterpartscould
be said only to emphasise the desirability of this extra mechanism
of recourse, perhaps especially for children in England. We also
note that, with the recent reforms to legal aid, there are growing
concerns about the extent to which children enjoy practical and
effective access to the legal remedies that do exist in domestic
law.
38. WE
BELIEVE THAT
THE GOVERNMENT
SHOULD RATIFY
THE OPTIONAL
PROTOCOL TO
THE UNITED
NATIONS CONVENTION
ON THE
RIGHTS OF
THE CHILD
WHICH WOULD
GIVE CHILDREN
THE RIGHT
OF INDIVIDUAL
PETITION TO
THE UN COMMITTEE
ON THE
RIGHTS OF
THE CHILD.
THE GOVERNMENT'S
VIEW THAT
IT NEEDS
TO WAIT
TO SEE
HOW RATIFICATION
OF SIMILAR
OPTIONAL PROTOCOLS
FOR THE
UN CONVENTION ON
THE RIGHTS
OF PERSONS
WITH DISABILITIES
AND THE
CONVENTION ON
ENDING DISCRIMINATION
AGAINST WOMEN
WORKS HOLDS
NO WATER.
MOREOVER, THE
OFFICE OF
THE CHILDREN'S
COMMISSIONER FOR
ENGLAND LACKING
ANY POWER
OF INDIVIDUAL
INVESTIGATION OF
COMPLAINTS MEANS
THAT CHILDREN
IN ENGLAND
ARE LESS
WELL PROVIDED
FOR IN
TERMS OF
ACCESS TO
POSSIBLE RECOURSE
TO JUSTICE
THAN CHILDREN
IN NORTHERN
IRELAND, SCOTLAND
AND WALES.
THIS MAKES
THE NEED
FOR THE
OPTIONAL PROTOCOL
MORE REAL
AND NOT
JUST POWERFULLY
SYMBOLIC OF
THE GOVERNMENT'S
COMMITMENT TO
THE CONVENTION.
15 HC Deb, 6December 2010, col 7WS Back
16
Q 62 Back
17
Q 2 Back
18
Q 45 Back
19
Ibid. Back
20
Q 63 Back
21
Q 46 Back
22
For example, JCHR, Third Report of Session 2014-15, Legislative
Scrutiny: (1) Modern Slavery Bill and (2) Social Action, Responsibility
and Heroism Bill, HL Paper 62/HC 779 Back
23
For example, JCHR, Fourth Report of Session 20-1314, Legislative
Scrutiny: Anti-social Behaviour, Crime and Policing Bill,
HL Paper 56/HC 713 Back
24
See for example the Children's Rights Alliance for England report,
State of Children's Rights in England: review of Government
action on United Nations' recommendations for strengthening children's
rights in the UK, http://www.crae.org.uk/media/75135/SOCR_2014_REPORT_WEB.pdf Back
25
Q 3 Back
26
Q 45 Back
27
http://www.parliament.uk/documents/joint-committees/human-rights/Letter_from_E_Timpson_15_April.pdf Back
28
Q 66 and Q 77 Back
29
Q 48 Back
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