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.
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.
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.
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.
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
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
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.
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.
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
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.
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".
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.
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.
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
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.
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.
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.
THE UK IN
UK TO FOLLOW.
173 JCHR, Twenty-third Report of Session 2010-12, Implementation
of the Right of Disabled People to Independent Living, HL
Paper 257/HC 1074 Back
JCHR, First Report of Session 2013-14, Human Rights of unaccompanied
migrant children and young people in the UK, HL Paper 9/HC
JCHR, Seventh Report of Session 2014-15, Human Rights Judgments,
HL Paper 130/HC 1088 Back
Q 76 Back
Review of the Office of Children's Commissioner (England),
Department for Education, December 2010, https://www.gov.uk/government/publications/review-of-the-office-of-the-childrens-commissioner-england
JCHR, Sixth Report of Session 2012-13, Reform of the Children's
Commissioner: draft legislation, HL Paper 83/HC 811 Back
JCHR, Third Report of Session 2013-14, Legislative Scrutiny:
Children and Families Bill; Energy Bill, HL Paper 29/HC 157 Back
Q 70 Back
Q 21 Back
Q 22 Back
Q 61 Back
ROC 008 Back
Written evidence from Together, the Scottish Alliance for Children's
Rights (ROC 021). Back