Joint Committee On Human Rights Appendices to the Minutes of Evidence


41.  Memorandum from the Children's Society

SUMMARY

  1.  It is our view that the HRA has great potential to improve the lives of many children and their families, but that it will not effectively fulfil that potential, without a corresponding Human Rights Commission.

  2.  Specifically, we believe that if a Human Rights Commission is to be able to serve the needs of children effectively and appropriately, it should have a separate Children's Rights Commission or office within its structure.

  3.  The functions of a Human Rights Commission (with a dedicated Children's Rights Commission within its structure) should be in this order of priority:

    (i)

      advising and assisting people who claim to be victims of violations of the Convention rights;

    (ii)

      bringing legal proceedings on human rights issues in the public interest, including the conducting of investigations into human rights violations, which may lead to such legal action;

    (iii)

      education in human rights.

  The development of expertise in human rights is, we believe, intrinsically necessary for delivering all of the above. The fostering of a human rights culture in the UK will be the result of the effectiveness with which all other functions are fulfilled.

  4.  We believe there should be a single UK Children's Rights Commission as part of a UK Human Rights Commission framework. This would mean that the powers and remits of the Northern Irish and Welsh Children's Commissions (and Scottish if established) should be reviewed in order to ensure consistency with each other, be and incorporated as being part of a UK-wide Children's Rights Commission with four (or perhaps more) office bases.

  5.  The HRC should have the following powers:

    (a)  to conduct investigations and to publish reports of their findings;

    (b)  to require people to provide information to them;

    (c)  to issue notices requiring people to cease conduct which the Commission considers to be unlawful;

    (d)  to conduct legal proceedings;

    (e)  to assist other parties to legal proceedings, including financial assistance;

    (f)  to conduct research;

    (g)  to engage in/organise activities to promote awareness of issues;

    (h)  to endorse public authorities' Codes of Practice;

    (i)  to make representations to Parliament.

INTRODUCTION
  (i)  The Children's Society works with and for children and young people across England and Wales. Amongst our 130 projects, we have many that are focussed specifically on promoting children's rights and participation. It is on the basis of our experience in working to support children in relation to their rights that we are keenly interested in the subject of this inquiry.

  (ii)  The Children's Society has welcomed the Human Rights Act for the following key reasons:

    —  Firstly, the Act applies to children and adults equally, reflecting the belief that all children should be equally valued and respected within society. Indeed Article 14 prohibits any improper discrimination on grounds of age in the enjoyment of Convention rights. At the same time, it is important to recognise that being treated equally does not mean being treated as the same, and the European Court to date has sought to reflect the distinctive situations, needs and issues in applying Convention rights to children.

    —  Secondly, the European Court on Human Rights has, in cases relating to children, generally sought to be consistent with the spirit of "child-specific" international treaties (eg the UN Convention on the Rights of the Child and the UN Standard Minimum Rules for the Administration of Juvenile Justice). Therefore, by bringing into direct relevance in the British courts most of the Articles (and legal precedents) of the European Convention, the HRA has the potential to be a vehicle through which our compliance with those "child-specific" treaties may be debated and cited, although unfortunately not directly enforced, within British courts.

    —  And thirdly, we believe that the Act has the potential to be of perhaps greatest impact in its practical influence on decision-making, policy and practice in public life. It promotes a broad discipline of thought and action for public authorities whereby they should always be mindful of the ways in which individuals' (including children's) rights and freedoms may be violated by their actions (or failure to act), and to ensure that any such interference that is made is lawful, justified and proportionate.

  (iii)  It is our view that the HRA has great potential to improve the lives of many children and their families, but that it will not effectively fulfil that potential, without a corresponding Human Rights Commission. Specifically, we believe that if a Human Rights Commission is to be able to serve the needs of children effectively and appropriately, it should have a separate Children's Rights Commission or office within its structure. We understand that the newly established Northern Ireland HRC has reached the same conclusions, and its establishing a separate Northern Ireland Children's Rights Commission—this experience should be learned from in looking at the possibility of wider UK provision.

  (iv)  There are, in our view, two equally strong and important reasons for needing a separate office for children:

    (a)  The application of Convention rights to children is a specialised area, requiring a complex understanding of the interactions between UK and European Court rulings and International treaties. If the aim of developing the HRC as a centre of human rights expertise is to be achieved in relation to children, the specialised legal knowledge and skills necessary should be located and developed within a dedicated office within its structure.

    (b)  For the Commission to be an approachable source of advice and help for children it must be accessible, appropriate and welcoming to them. This relates not only to the physical space and location of the office. It also relates to the skills and motivation of those employed there to communicate and engage with children and young people. It may often be the case that the issues children bring to the commission will be highly distressing, and involve child protection issues. If the Commission is to be a safe place for children to seek advice and help (whether by telephone, written communication or in person), the staff must be appropriately skilled, and police checked (or "certificated" after the full implementation of the Criminal Records Bureau's new system).

  (v)  In short, the needs and perspectives of children should be a conditioning factor in all aspects of the way in which a children's rights commission/office operates, from the personal skills and legal expertise required, to "child-friendly" opening times, publicity and education materials.

  (vi)  In the rest of this submission we have answered only those questions to which we believe we have pertinent practical experience or views to offer, and all answers are premised on the model of a separate Children's Rights Commission/Office within the framework of a UK-wide Human Rights Commission.

ANSWERS TO THE COMMITTEE'S SPECIFIC QUESTIONS

  (The numbering in this section corresponds to the numbering of the Committee's questions. We have answered only questions 1, 2, 3, 4, 9 and 10 and therefore numbering does not always follow sequentially).

  1.  What (if anything) might a Human Rights Commission add to the current methods of protecting Human Rights in the UK? In particular, are there useful functions in connection with protecting human rights which do not fall within the remit of any existing agency in the United Kingdom?

  1.1  From our experience of working to educate and empower children in relation to their rights, we perceive a vital need for an independent body, with powers both to investigate human rights violations, and to take action on behalf of the individuals who suffer them. The HRA itself only empowers those individuals who feel that their rights have been unlawfully violated to seek legal advice and representation, and to "take on" the public bodies that they have identified as being at fault, within the UK courts. The protections that the Human Rights Act offers to individuals must be understood as intrinsically intimidating to enact—to successfully "fight for your rights" against the decisions and actions of public authorities is a daunting task for the most eloquent, affluent and assertive member of society to undertake. How much more so for those who will often have the most pressing cases to make—the young, the elderly, and indeed all those who are vulnerable; marginalised; impoverished; seeking asylum; living chaotic or transient lifestyles; or poorly educated (in relation to their rights and more broadly)?

  1.2  Without a body that has the powers and the resources to raise awareness about human rights in the first place, and that is able to back that up with the power to take action in support of individuals and groups who are suffering human rights violations, we do not believe human rights will really come alive as a meaningful factor in most people's relationships with public authorities. Similarly, although many public authorities have embraced the Human Rights Act, and reviewed their practices, we cannot, and should not rely on their good will alone to educate and support people properly in relation to their rights, when to do so might result in their own actions being challenged in court. An independent body is needed to ensure that information and education about human rights is provided proactively, and that impartial legal expertise on human rights is available and accessible to all.

  1.3  In the case of children, ensuring that they are all educated in relation to their rights, both as children today, and as the adults of tomorrow, is essential if the Human Rights Act is to afford meaningful protection for them, and to have an effect on the development of a human rights culture within the UK. Furthermore, children will clearly be affected by the extent to which their parents/carers are aware of human rights, and are enabled to take action, both in support of their child's rights, and in protection of their own rights as individuals.

  1.4  We recognise that in some cases there may be a tension between a child's and a parent's rights, and we would be concerned to ensure that Article 3 of the UNCRC is always taken as the guiding principle in reconciling any competing claims between parent and child rights. The Rt Hon Lord Justice Sedley has recently articulated this concern:

    "For us in the United Kingdom there is a particular concern, as the Human Rights Act brings the Convention into effect here, about the possible impact of Article 8 upon the paramountcy of the child's interests, established by Section 1 of the Children Act 1989 [Article 3 of UNCRC]. Is an abusive parent going to be allowed to cut down that fundamental protection by invoking the right to respect for his or her family life? Or will the primacy of the child's welfare be seen as the fundamental object of all family life, and Section 1 be upheld intact?"

  1.5  This potential dilemma further illustrates for us the need to have a separate office/commission dedicated to children's rights and interests.

  1.6  The inquiry lists the following as potential functions for the Human Rights Commission:

    (a)  fostering a human rights culture in the UK;

    (b)  education in human rights

    (c)  advising and assisting people who claim to be victims of violations of their Convention rights

    (d)  developing expertise in human rights

    (e)  bringing legal proceedings on human rights issues in the public interest.

  1.7  All five of these functions are essential, we believe, for a Human Rights Commission, and are not provided for adequately (or in some cases at all) in relation to children by any existing public bodies. While the regulations are still under consultation, the Director for Child Rights in England will have a relevant, but restricted role under the Care Standards Act 2000 in relation only to those children receiving services from residential health and care services. Several of those functions as they apply to children are provided for by the Children's Commissioner for Wales, and soon will be in Northern Ireland with its forthcoming Children's Commissioner. The existing "equality" commissions and Information Commissioner may also have relevant powers for some children whose rights may have been violated, dependent on the nature of their individual issue. However all those statutory bodies have different roles, usually relating to the implementation and monitoring of specific pieces of legislation other than the Human Rights Act (eg Data Protection Act, Race Relations Act and Amendments). They do not, in their sum total, amount to a comprehensive system with the teeth to fulfil the potential functions of a Human Rights Commission in relation to all Convention rights for all children in the UK.

  1.8  We are also aware and supportive of the important contributions made by a range of voluntary sector organisations and campaigns who have as their primary objectives the promotion of awareness and education about children's/human rights, the provision of legal support and expertise for individuals, and the broad promotion of a human rights culture. We are mindful, amongst others, of the Office of a Children's Rights Commissioner for London (set up through a voluntary sector partnership of which we are a part) the Children's Legal Centre, the Scottish Child Law Centre, Article 12, Liberty, Justice, Charter 88 and the Children's Rights Alliance for England. However these voluntary organisations do not have, and clearly could not be given, the kind of powers necessary to fulfil nationally the functions of an effective Human Rights Commission.

  2.  If a Human Rights Commission were established, how should its role and functions relate to those of the Joint Committee for Human Rights?

  In Wales we are aware, through our involvement in the lobbying and establishment of the new Office of the Children's Commissioner, that the relationship and links between the Commissioner for Children and the Children's Cabinet Committee and other Committees of the National Assembly are currently under consideration. The outcome and agreed links should be taken into consideration, and might be a useful basis on which to look at links between the Children's Rights Commission/Office of a UK HRC and the Joint Committee.

  3.  In what order of priority would you arrange the functions of such a Commission?

  It is somewhat difficult to prioritise the functions listed (all of which we see as important), as they seem interdependent on each other. However, based on our view of where the greatest gaps are within the current framework, our priorities would be as follows:

    1.  advising and assisting people who claim to be victims of violations of the Convention rights (function (c));

    2.  bringing legal proceedings on human rights issues in the public interest (function (e)) (within which we include the conducting of investigations into human rights violations, which may lead to such legal action);

    3.  education in human rights (function (b)).

  The development of expertise in human rights (function (d)) is, we believe, intrinsically necessary for delivering all of the above. The fostering of a human rights culture in the UK (function (a)) will be the result of the effectiveness with which all four other functions are fulfilled.

  4.  Jurisdiction across the UK Nations

  4.1  As children in all four nations continue to be governed and affected by UK-wide primary legislation and the decisions of Whitehall departments, we believe there should be a single UK Children's Rights Commission as part of a UK Human Rights Commission framework. This would mean that the powers and remits of the Northern Irish and Welsh children's commissions (and Scottish if established) should be reviewed in order to make them consistent with each other, and incorporated as being part of a UK-wide Children's Rights Commission with four (or perhaps more) office bases.

  9.  If a Human Rights Commission were to be established, what powers should it have?

  9.1  We believe it important that most of the powers listed should be given to the Human Rights Commission in order to carry out the functions we would want it to fulfil. Specifically, it should be given powers:

    (a)  to conduct investigations and to publish reports of their findings;

    (b)  to require people to provide information to them;

    (c)  to issue notices requiring people to cease conduct which the Commission considers to be unlawful;

    (d)  to conduct legal proceedings;

    (e)  to assist other parties to legal proceedings, including financial assistance;

    (f)  to conduct research;

    (g)  to engage in/organise activities to promote awareness of issues.

  9.2  We are less clear, whether it would be beneficial for the Commission to be given the power to issue Codes of Practice. Since the Human Rights Act applies to public authorities, which have their own existing (and varied) systems for agreeing and implementing Codes of Practice, the different sources and status of such codes would undoubtedly be confusing and unhelpful for those employed to work according to them. It would be preferable, perhaps, for the Commission to have the power to endorse and review Codes of Practice, and for all public bodies to be monitored on the extent to which their Codes of Practice meet the Commission's approval.

  10.  Other issues not already covered—A broader remit for the Children's Rights Commission/Office of the HRC

  10.1  We believe that a Children's Rights Commission/Office within the framework of a Human Rights Commission (as we have advocated) will be a significant advance in addressing many of the structural and practical barriers to the proper implementation of children's rights.

  We think that the Children's Rights Commission/Office of a UK HRC could usefully have additional responsibilities, in order to give effect to Article 12, to actively seek and represent children's views and interests more widely, within democratic and public life. The precedent for this role has been set by the remit of the Children's Commissioner for Wales, who has been given powers "to consider and make representations to the Assembly on any matter that affects a child ordinarily resident in Wales" (our emphasis). The need is for a body that has a similar role and powers in relation to the UK Parliament. It is a role that could be incorporated into a separate children's rights commission/office, if specifically built into the legislation establishing its powers, but it is not a role for which we think the HRC as a whole has need in relation to adults.



 
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