Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 160 - 179)

MONDAY 13 MAY 2002



  160. Good afternoon, Mr Newell. Thank you for appearing before us today. I think it is probably right to say that we all know of you as a children's rights campaigner and I presume that you would be very proud to bear that title. Could I start by asking you why it is that you think, or do you think, that children's rights should be a particular priority for this Committee given the fact that we have so many influential, articulate and well resourced children's charities?
  (Mr Newell) I think if one is committed, as the Government says it is, to building a human rights culture in this country for the future it is quite obvious that one should have a special focus on children because in that sense children are the future. Unless they believe that they are respected as rights holders and experience what it means to be a rights holder I think they are very unlikely to grow up and be people who help to build that culture of human rights. Obviously children are not just the future, as they frequently point out to us, they are also here now, people now, and as such they are both smaller and more vulnerable than the rest of us and their human rights need special attention if they are to be realised. They are much less powerful than adults, they have no vote, their views are perhaps increasingly heard but still not at all consistently heard, and it is very difficult also for children to use the courts. In terms of the organisations that exist for children, there are many of them but very few have an explicit human rights focus. Many of the largest ones now are providing services for children increasingly which in a sense produces a possible conflict of interest between that role and the role of promoting children's human rights. Of course, non-governmental organisations do not have the sort of statutory powers that we would look for in a human rights commission or a children's rights commissioner.

Mr Woodward

  161. Mr Newell, could you comment, and feel free to be very free with your comments, on what you see as the logic and sense of the Government's current position whereby we have a Children's Commissioner for Wales but we believe we should wait and see how that individual gets on before making up our minds whether or not we should have one for England?
  (Mr Newell) I do not see any logic certainly. If you look first at what has happened in Wales, it is good that Wales has a commissioner but if you look in detail at the powers and the legislation setting it up, it is still a complete mess. Most of the legislation is in effect saying what the commissioner cannot do rather than what the commissioner can do.

  162. What would you specifically point to that the Commissioner in Wales should be able to do that he or she cannot do at the moment?
  (Mr Newell) I think like any human rights institution he—it is a he in this case—should be able to investigate and report freely on any matter affecting the human rights of children and should also have specific legal powers to pursue those rights where necessary. The Welsh Commissioner has quite strong powers in relation to devolved matters but does not have equal powers in relation to non-devolved matters like juvenile justice, for instance. I think that is a problem. There are also specific limitations. The Welsh Commissioner, for instance, is not allowed to comment on proceedings that are before a court or even decisions of courts. As far as I am aware anyone else in Wales is allowed to comment on those things but not the Children's Commissioner. His powers are also limited in relation to other bodies hearing complaints. Again, I think the real purpose of a children's commissioner is to be an overall watchdog. I do not advocate commissioners having binding powers, I think there are constitutional problems with that, but it is absolutely essential that commissions and commissioners should be able to comment freely and make investigations of anything that affects children's rights.

  163. Given the number of existing organisations that there are and changes that you would wish, for example, to see in the Welsh Commissioner's powers if they were reproduced in England as well as in addition to the power in Wales, is there any case to be made do you think for saying that we have got enough organisations protecting children at the moment? Indeed, if that is not the case, how compelling do you believe the argument is for an independent human rights institution for children?
  (Mr Newell) I think it is extremely compelling for the general reasons I have set out: the particular status of children in society; the difficulties for them to remedy breaches of their rights. I could also catalogue an awful lot of children's rights which I feel at the moment are not being adequately protected.

  164. I think, as the Chairman has said, if you could let us have that as written evidence we would be extremely grateful. I do not mean to interrupt you but I think we would like that.
  (Mr Newell) Yes. I think children particularly need a powerful watchdog, champion, with some basic statutory powers to give a higher profile to their rights, to ensure that the Government takes its international obligations to children seriously. When the Committee on the Rights of the Child last reported on the UK back in 1995 when the concluding observations were published there was a series of parliamentary questions asking the Government what it intended to do about those recommendations and in most cases the answer was nothing. There has been very little sign of any Government so far taking its—

  165. From what you are saying presumably that would be an argument—I do not want to put words into your mouth—for an independent commissioner, as it were, rather than, say, a Minister for Children who might be subject to pressure for whatever reason.
  (Mr Newell) Yes. I think there is still a large misunderstanding, not on your Committee I am sure but elsewhere, of what an independent human rights institution is for. To me it is entirely complementary to the role of Government, Parliament and NGOs and so on. It is absolutely to provide an independent view and role as powerful as possible to see how Government and Parliament is fulfilling obligations under fundamental human rights standards and to push for those human rights obligations to be fully and effectively met.

Lord Parekh

  166. Following on from what you said earlier, this whole question of independent championship of children's rights can be tackled in several different ways. You have been talking about children's rights commissioners but one could also think of a human rights commission and dealing with children's rights within the framework of that commission. In the light of the point Lord Lester was making earlier, I think if we are going to have commissioners for every set of rights you might end up having about a hundred. Therefore, why not think in terms of a human rights commission which could have a division or an individual in charge of children's rights because this would have many advantages: the person would be dealing not just with children's rights but also the rights of others, co-operating with them, comparing notes and so on? Why do you still insist on pressing for a children's rights commissioner?
  (Mr Newell) I should make my position clear which is that I would be equally happy with a separate children's rights commissioner and a children's rights commissioner integrated into a human rights commission. I think it is more productive to look at the characteristics that such an office needs in order to effectively promote, protect and monitor children's rights. To me those are really about taking full account of the special status of children. If we are talking about an integrated commissioner there would be an absolute need to have a direct reference to the Convention on the Rights of the Child which of course covers the full range of economic, social and cultural as well as civil and political rights. It would be important that the commissioner should have particular regard to children's views and have direct contact with children again to ensure that they were in a position really to represent their views and interests. I think it would be essential from the children's point of view to have an identifiable person or persons that children could see was their champion, or champions. I think without that it would be much less likely that children would actually go to this body. Some of the other legal powers have already been mentioned, like a right of access to all the places that children get put, the right to look at least at the situation of children in the family, not just children in state or other institutions. I think it would need to have a ring-fenced budget to cover the work on children's rights. I do have some experience of looking at the development of independent human rights institutions for children, both separate and integrated. In fact, the first meeting of many of those institutions occurred last week in New York. My only worry is that the integrated models, the human rights commissions that say they are adequately covering children's rights too, very often do not have the sort of characteristics that I have mentioned and very often, as often happens in adult places, children fall off the agenda or get a lower priority. I think it is absolutely essential to have these particular characteristics but I would be equally happy if we had a human rights commission with a children's rights commissioner as a very identifiable and empowered part of it.

  167. You talked earlier about international experience and the conference in New York. Comparing international experience, what kind of model do you think might be most appropriate for this country? Naturally one cannot transplant institutions but, given the kind of problems we have and given the kind of history we have had, what sort of direction would be particularly attractive from your point of view?
  (Mr Newell) I think the children's ombudsmen and women developed in the Nordic countries in particular have been very effective at gaining a much higher profile for children's rights and also gaining acceptance, getting over people's defensiveness and misunderstanding of children's rights and seeing them as in some way opposed to parent's or family rights. That is partly because they have been high profile people very promoted to children. Their powers have not necessarily been particularly strong in terms of investigatory powers but very quickly they have come to be respected by government too and government has begun to use them at a very early stage in policy development to consult on the way this possible policy may affect children. Those models are very good ones, I think. In Australia the human rights commission has got a fairly good record of promoting children's rights, for instance the rights of homeless children. They did a very large and substantial study which got a lot of coverage and did achieve significant changes in legislation through pressure on parliament. In a sense I do not think the integrated or separate issue is the major issue, it is how identifiable these officers are to children, that they have the specific powers that enable them to work on all the issues of children's rights, not just the child and the state but the child and the family and so on.

Lord Lester of Herne Hill

  168. Mr Newell, I think it follows from the way you are putting your evidence that you consider the Rights of the Child Convention should be the defining international instrument that would define the remit of the human rights commissioner dealing with the rights of the child. Of course, that instrument is not incorporated into our domestic law and is not likely to be while we live, so it is what one might call soft law, it is internationally binding but it has no direct domestic effect. Do you have it in mind that the human rights commissioner or the Human Rights Commission would not only draw attention to the importance of that instrument but would also be able to help people to bring cases or itself intervene in cases, say under the European Convention or the Human Rights Act, drawing attention to the Rights of the Child Convention? Do you see the Commission, or commissioner, as an investigator and a champion but not an enforcer or aid to enforcement in that sense?
  (Mr Newell) I think it would be very important that the commissioner or commission had the power to support or take legal action in support of children's human rights to support or take a case to Strasbourg, for instance, if necessary. I think that is absolutely vital. Plainly Strasbourg has had in many ways a very positive effect on children's law in this country in substantial ways and advocates have found it very difficult to find other equally effective ways of improving children's law. I think that would be very important. I think the commissioner would certainly be advocating perhaps not for incorporation of the Convention on the Rights of the Child, which is very unlikely, but for reflection of many more of the rights in that Convention in domestic law. For instance, at the moment in the Education Bill that is going through Parliament there are strong attempts to get a reflection of Article 12 of the Convention on the Rights of the Child into education law. I think Government is resisting the idea of a statutory duty to consult children although it is accepting the idea of guidance. Those sorts of issues I am sure a commissioner would be pushing very hard for. At the moment what we have is very inconsistent respect for the Convention on the Rights of the Child, it tends to go with the particular enthusiasm of particular schools or teachers or local authorities and that means it is discriminatory from a child's point of view, so again the commissioner would be seeking much more universal respect for those rights for children.

  169. Is there any international law that you can help us with, I do not know of any, where there is a human rights commissioner with those kinds of enforcement powers or helping to bring proceedings powers? I know that equality commissions, like our own in this country, can do that but I am not aware of any children's rights commissioner or commission, or even a Human Rights Commission, that has those powers. When you were in New York, for example, did any such body emerge or will we need to start with a clean slate from that point of view?
  (Mr Newell) I will come back to you on the detail, if I may, because I do know that some of them in their legislation have the power to take cases. I personally have been a bit disappointed that none of the European ones, including those in Eastern Europe, have yet taken cases to Strasbourg when there are plainly a number of issues affecting children in large numbers which the European Court would find to be in breach of the European Convention.

  170. I was thinking also of domestic proceedings as well as Strasbourg. If you could provide information on that it would be most useful.
  (Mr Newell) Okay.


  171. Following on from what Lord Lester just said to you and bearing in mind the evidence which you heard earlier on in this session, how do you think a commission could concern itself with what happens to children in the privacy of their families?
  (Mr Newell) Plainly most parents perhaps are the most powerful advocates for their children but equally parents can be children's worst enemies as we have seen in a number of cases from the levels of abuse and violence to children that comes out whenever there is detailed interview research. Clearly the commissioner has to include within their scope the realisation and recognition of children's rights within the family. Human rights do not stop at the door of the family home any more than they stop at the school gates. Whether the commissioner should have a right of access to the family home, that seems to me something that within this country we are not ready for and if we advocate it at this point it would probably delay us having a children's commissioner for many more years. I think it is absolutely clear that the commissioner should have a right of immediate access to anywhere where children are being looked after by the state or by private bodies, so I would certainly include foster care, including private foster care, in that. At the moment my view is that it would be unhelpful to advocate a direct right of access for the commissioner to the family home.

Baroness Whitaker

  172. I would like to try and identify with you some examples of the difference that a children's rights commissioner could make and if you prefer to write to us with other examples. For instance, it occurs to me that maybe gypsy, Roma or traveller children have their rights quite frequently denied and children's interests do not seem to figure very often in transport policy, you may have other examples. Can you tell us what a commissioner could do in such cases and how the commissioner might achieve change?
  (Mr Newell) I think there are some particular issues that are of particular importance to children when you ask children about them. One is obviously respect for their views and I am quite sure a commissioner would provide for respect for the views of the child in all settings, including the family. At the moment our law respects the rights of children particularly in public care to have their views listened to and given due respect but they are actually the only group who have that legal right, despite Article 12 of the Convention. That is one particular right which I think the commissioner would pursue and would achieve, I would hope, quite quickly and on a much more consistent legislative framework.

  173. By communicating?
  (Mr Newell) By communicating, by bringing Government departments together and seeing that what already happens in the care system and in special education is equally relevant in the mainstream school system, within the family, and of course in Scotland we already have a duty on parents to listen to their children's views and pay due regard to them. I think by pointing to examples and advocating consistency and logic the commissioner could improve Government policy. I do not think it would be a tremendous battle. Having a powerful figure there saying these things clearly, although a lot of other people have said them already, would make a difference quite quickly. Another issue that is obviously of great importance to the children is the lack of an equal right to protection under the law on assault, the whole smacking issue. Here again I do not think it would take very long for the commissioner to convince Government that children do have the same right as the rest of us to respect for their physical integrity and human dignity and the right to equal protection under the law. It is one of those issues that has been very difficult in this country but is precisely to do with creating a culture of human rights. I think in terms of teaching about human rights a commissioner would want to go much further than has been gone so far and in particular to ensure that not just human rights but the Convention on the Rights of the Child is part of the curriculum, which it is not at all at the moment.

  174. If I may conclude. How about the rights of Roma or gypsy children, what could the commissioner do?
  (Mr Newell) I think any commissioner has to have particular regard for those who in a sense suffer double jeopardy, they are not just children but they also belong to a group which is suffering particular discrimination. Again, I think the crucial role would be to look rigorously at the situation affecting those children, to listen directly to those children and to people working with them and then to advocate strongly on their behalf. The same clearly would be true of unaccompanied refugee asylum seeking children who at the moment suffer discrimination in access to their rights, which is certainly in breach of the Convention on the Rights of the Child.

Mr Woodward

  175. One question I would like to ask you using your experience, which is obviously very considerable. Are you aware of any organisation which represents or campaigns on behalf of children's rights which would be against the creation of either a children's commissioner within a human rights commission or a separate children's commissioner in England?
  (Mr Newell) I have not come across them and I hope I would have done. Certainly so far, like previous witnesses, at one level I am really puzzled by the Government's resistance to the proposal for a children's commissioner in England, and as I have said I would be equally happy to see that established within a human rights commission, and at another level I see it as an inevitable hesitancy of Government to set up an effective, independent watchdog but any Government that is truly committed to respecting human rights must see establishing independent national human rights institutions as an absolutely necessary part of that commitment.

Lord Lester of Herne Hill

  176. If the Chairman will allow me two questions very quickly. First of all going back to the question she asked you about the private sphere. Am I not right in thinking that the notion of positive obligations of the state would apply here? You mentioned corporal punishment and, for example, the state and public authorities of the state have a positive obligation, do they not, to protect children against the infringement of their rights by their parents or private persons as well as by public authorities? I have got one other question, if I may, after that.
  (Mr Newell) Yes, absolutely. I think the division between the public and private sphere from a child's point of view is particularly artificial. The state has an obligation to protect and promote children's rights wherever they are and with respects for parent's rights and responsibilities too, and this is reflected in Article 3 of the Convention on the Rights of the Child. If you take one of the cases that went to Strasbourg, the boy who was beaten by his stepfather, A v UK, while clearly it was the stepfather who was doing the beating, the UK Government was found responsible because it is responsible for achieving adequate protection for children and effective deterrents to stop people beating children and because our current law fails to provide that deterrence and protection it is a breach of the boy's rights. The state is engaged in both private and in public sectors.

  177. My other question, if I may, is going back to a question I asked another witness about racially discriminatory exclusions from schools. If I am right, I may well be wrong, in thinking that the Race Relations Board, and afterwards the Commission for Racial Equality, have never brought any legal proceedings to tackle what seems to be a serious social problem of Afro-Caribbean boys being discriminated against by being excluded more from schools than members of other ethnic groups, do you think that helps to make the case for a children's rights commissioner since it may indicate that the existing agency does not give enough attention to children's rights problems in the context even of race discrimination? Assuming I am right, and I may well be wrong, as I say.
  (Mr Newell) Again, I will write to you on this specific issue because I believe there was a non-compliance notice issued against Birmingham a long time ago about language units and the discriminatory issues on at least selection for those units, which has a bearing. I think what you say illustrates the difficulties for children as victims of that sort of discrimination bringing cases. I would imagine it is perfectly possible under the Human Rights Act but the fact it has not happened I think demonstrates the very real difficulties. Again, to use another one, the treatment of the boy A in that Strasbourg case. According to Government commissioned research over 20 per cent of the child population are actually being subjected to being beaten with implements and other serious physical punishment but only one case has ever gone to Strasbourg which I think illustrates the huge difficulties for children even if they are having their rights breached on quite a gross scale being able to do anything about it. The fact is that there are many children's lawyers and lawyers who like to think of themselves as representing children and many, many organisations still finding huge difficulty in getting children's rights recognised and realised. While I think it is unlikely that a commissioner could effectively have a duty to investigate all cases that came to them I think they should have the right to investigate particular cases but they choose them carefully. I think they have to have an absolute role of ensuring that children individually and children as a group do have effective remedies when their rights are being breached so they would need to be able to look at the various complaints procedures and advocacy services that exist to see if they are adequate. I think that would be a hugely important role.


  178. Mr Newell, we have talked a lot about the kinds of things which a commission or a commissioner could do but how would it be accessible to children? Where would that fit in with other support mechanisms like ChildLine, and should it be accessible to children directly?
  (Mr Newell) Yes, I think it is absolutely essential that it is accessible to children although, as I have said, I do not think it is feasible to think of the commissioner sorting out children's complaints, it would need to be able to refer to existing bodies that exist for that too. Again, in the examples that exist some of them have advisory boards of children who meet frequently and are involved in all sorts of things from appointments of staff to reviewing the programme of the commissioner and evaluating the activities of the commissioner. Some of them have set up links with representative classes in schools and also in pre-school settings working with the teachers concerned and the children so the commissioner's office is able to put questions quite quickly using e-mail, the internet, whatever, to representative groups of children who then discuss these issues or a particular paper or particular questions and come back to the commissioner with quite thought out views. Obviously the access could also be like ChildLine through a free telephone line. Some commissioners have a regular slot on television where people can ask them questions either through e-mail or through the phone direct. There are many ways being developed by existing ombudsmen and women and commissioners, there is no shortage of positive examples, but I am sure an English commissioner could find new and innovative ways too.

  179. In the course of this inquiry, but this afternoon specifically, we have heard about a number of roles for a commission or a commissioner. This institutional person has been variously described as a champion or an inspector or an enforcer or friend in court or an educator. Do you think there is an order of priority here or is there one or a number of key elements which would help to create a culture of human rights which we are looking for?
  (Mr Newell) I think having a high profile powerful in terms of legal powers figure who is absolutely identified with the promotion of children as rights holders and children's rights would in itself have a huge impact on trying to build a culture of human rights and would make children themselves feel much more that they were being taken seriously as rights holders by adults. I think at the moment adults get away with a great deal of hypocrisy about human rights, particularly when they are talking to children. Hopefully this figure would cut through some of that hypocrisy and really ensure that people see children as equal holders of human rights.

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