The UK's compliance with the UN Convention on the Rights of the Child

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

9 CHILDREN'S RIGHTS AND DEVOLUTION

159. During this Parliament we have become increasingly conscious of the implications of the UK's still-shifting devolutionary settlement for the promotion and protection of human rights across the UK. In our inquiry into the right of independent living for persons with disabilities under Article 19 of the UN Convention on the Rights of Persons with Disabilities ("UNCRPD"), we expressed some concern at the very different speeds at which the four countries of the UK were moving in terms of working to realise this right to independent living.[173] In our Report on the human rights of unaccompanied migrant children and young people in the UK, we noted the different approaches to incorporation or paying due regard to the UNCRC that were current in the four countries of the UK.[174] Recently in our Report in human rights judgments, we noted that implementation of judgments often falls to the devolved governments in the UK and we expressed some concerns at the slow pace of implementation of a number of judgments in Northern Ireland.[175]

160. We had intended towards the end of the Parliament to undertake an inquiry into human rights and devolution, but the need to complete other inquiries and the continuing demands of our legislative scrutiny work has not permitted us to do so. We did visit Belfast in March 2014 and we are grateful to those who assisted us during that visit in getting a better understanding of the human rights situation in Northern Ireland.

161. Children's rights as reflected in the UNCRC cover a very great number of different policy areas for which a number of different Government departments are responsible. Moreover, some of these policy areas have been devolved and are the responsibility of the devolved governments while others, still reserved, fall to the UK Government to act on. Non-devolved areas include immigration and asylum, child poverty, welfare and children in the military. It is the UK Government that is ultimately responsible for the implementation of international human rights treaties across the UK, as the state signatory to these treaties, but the devolution settlement through the Human Rights Act has also placed duties with regard to those human rights treaties which the UK has ratified on the devolved governments.

162. This has led to a patchwork of responsibilities and duties which sometimes overlap and in which there is also inevitably the possibility of gaps emerging in human rights protection. It is therefore clearly important that all those across the UK with a national or UK-wide remit to maintain good lines of communication and remain aware of their differing, and often complementary, responsibilities and powers.

163. The importance of communications and good relationships was echoed in the evidence given to us by Edward Timpson MP. He explained that he had "two levels of relationship" with his counterparts in the other nations. One concerned the "overarching principles" and was involved in coordinating such as the 2014 report to the UN Committee on the Rights of the Child. The second concerned general communication so that when one nation made some policy or legislative change the other nations were kept in the loop. He explained that there was "fairly consistent dialogue" between him and his counterparts. He noted that while the four nations were "always going to move at different speeds because that is the nature of devolution" it was still important to try and find some harmony by agreeing to things that "meet[s] the needs of each of those nations individually", and that, for this, regular communication was of paramount importance.[176]

164. This can be seen in relation to the four Children's Commissioners (two are Commissioners for Children and Young People) within the UK. While responsibility for implementation of much of the UNCRC falls within policy areas which are devolved, significant areas are non-devolved and therefore remain across the UK within the remit of the Office of the Children's Commissioner for England (OCCE). The Dunford report argued that this created confusion, inconsistencies and gaps in coverage. One of the concerns identified by the report was that the UK-wide role of the Children's Commissioner for England in respect of non-devolved matters meant that there were concerns about how effectively the Commissioners in the devolved administrations were able to respond to non-devolved issues that are raised by children living in Scotland, Wales and Northern Ireland. Such children had to be referred to the Children's Commissioner for England where the issue they raised related to a non-devolved matter.[177]

165. In its draft Children and Families Bill, the Government made clear that it wanted to remove this confusion and enable the devolved Commissioners to deal with an issue raised by a child in their area, even if it concerns a non-devolved matter. It was proposed that this would be done by providing for the Children's Commissioner for England to delegate the exercise of functions to the devolved Commissioners. The devolved Commissioners themselves, however, and the English Commissioner, made clear in joint correspondence with us that the proposed solution in the draft clauses would have made matters worse than they currently were. They all saw the Memorandum of Understanding which they had in place within the then current legislative framework as preferable since the draft clauses would introduce significant complications to their relationships.

166. We therefore recommended 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 recommended that the four Commissioners consider whether their existing Memorandum of Understanding could be improved and make that document publicly available.[178] The Government agreed with our recommendation and deleted the clauses. However, we remain aware that the operation of the Memorandum of Understanding requires good will and will need to be monitored especially as the devolution settlement continues to evolve.[179]

167. We raised this issue of the four Children's Commissioners having different roles, remits and powers and a different relationship with their parliaments and governments with our witnesses during this inquiry. Edward Timpson MP, explained to us:

a combination of devolution and organic evolution of the various Children's Commissioner roles across the United Kingdom has led to some differences in the remit and the powers of each Children's Commissioner.[180]

He acknowledged that there had been concerns about how well the four Commissioners worked with each other given their different responsibilities and powers, and the sometimes complex situation with regard to what were reserved and what were devolved matters. He noted that the Commissioners themselves had "recognised that there needed to be better cut-across between each nation".[181]

168. Dr Atkinson acknowledged that:

the Dunford review, and the Shooter review in Wales, have said that the commissioners in each of the four jurisdictions should be responsible for the children in their jurisdictions without exception and that the devolution settlement should be rewritten to echo that.[182]

Dr Atkinson described the likelihood of further changes to the devolution settlement as a "golden opportunity" to strengthen "differently" the roles of the Commissioners and thereby the protection and promotion of children's rights in each country.[183]

169. However, in terms of the UNCRC, devolution does not solely impact upon the varying roles, responsibilities and powers of the Children's Commissioners. Dragan Nastic of Unicef UK said that the UN Committee on the Rights of the Child is "very much concerned with the problem of differences between the four parts of the UK, because the UN Committee is very much concerned with the lack of strong coordination amongst the four UK nations and the fact that there is not enough synergy to ensure that children enjoy the same level of rights in all parts of the UK". The absence in some areas of coordination and synergy he felt was reflected in the UK Government's May 2014 report to the UN Committee on the Rights of the Child, which incorporated contributions from the four countries of the UK but which as a result lacked a coherent overall view.[184]

170. We received correspondence from the Chief Executive of the Northern Ireland Commissioner for Children and Young People, the Scottish Commissioner for Children and Young People and the Welsh Commissioner for Children which stressed the complexities and sensitivities which operate in this area.[185] Perhaps reflecting this, Together, the Scottish Alliance for Children's Rights, suggested in its submission to us that our successor Committee give consideration to how the UK Government's exercise of its reserved powers could better be assessed for its impact on the human rights of children in the devolved countries of the UK.[186] This particular area appears to be a growing lacuna that has developed to some extent because human rights issues have been in large part devolved so successfully. As we have seen, areas where the decisions and policies of the UK Government impact strongly on devolved countries include benefits and social security, immigration and employment. Some of these areas require scrutiny at a UK-wide level, to assess how they impact on the different countries, as the national human rights institutions in those countries are not able to undertake that UK-wide assessment.

171. WE ARE AWARE OF THE COMPLEXITY OF THE DEVOLUTION SETTLEMENT WHICH WILL NO DOUBT CONTINUE TO EVOLVE OVER THE PARLIAMENT. WE ARE LIKEWISE AWARE OF THE SENSITIVITIES SURROUNDING WHICH AREAS ARE APPROPRIATE FOR A COMMITTEE SUCH AS OURS TO EXAMINE; AND WE ARE RIGHTLY RESPECTFUL OF THE SPECIAL RELATIONSHIPS THE DEVOLVED HUMAN RIGHTS INSTITUTIONS HAVE WITH THEIR LEGISLATURES AND EXECUTIVES, AND INDEED WITH THE PEOPLE OF EACH OF THEIR COUNTRIES. NONETHELESS, WE DO BELIEVE THAT A UK-WIDE EXAMINATION OF THE IMPACTS OF DEVOLUTION ON THE PROTECTION AND PROMOTION OF HUMAN RIGHTS IS REQUIRED AFTER THE ELECTION. SUCH A REVIEW IS IN OUR VIEW NECESSARY TO PROVIDE REASSURANCE THAT THERE IS CONSISTENCY ACROSS THE FOUR COUNTRIES OF THE UK IN THOSE AREAS WHERE THAT IS REQUIRED AND THAT THE DIFFERENT ARRANGEMENTS WHICH VERY PROPERLY HAVE BEEN ADOPTED IN THOSE COUNTRIES DO NOT REDUCE THE LEVEL OF PROTECTION FOR CHILDREN BUT, WHERE THEY HAVE INCREASED THAT PROTECTION, RATHER PROVIDE USEFUL BEST PRACTICE FOR THE REST OF THE UK TO FOLLOW.