The UK's compliance with the UN Convention on the Rights of the Child - Human Rights Joint Committee Contents



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 some—although by no means all—cases, 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 it—in 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 do—almost by stealth, setting precedents from the High Court and Supreme Court benches—is 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 this—to '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 complaints—as compared to its Scottish, Welsh and Northern Ireland counterparts—could 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   IbidBack

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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Prepared 24 March 2015