Joint Committee On Human Rights Tenth Report


2  GENERAL, PROCEDURAL AND STRUCTURAL ISSUES

The Reporting Process

  9.  Governments are required to submit a report to the UN Committee on the Rights of the Child every five years. The UK Government's second report was submitted in 1999, updated by a brief supplementary report in 2002.[14] The UN Committee's Concluding Observations on the report, following its collection of further evidence, were issued on 4 October 2002.[15]

THE 1999 REPORT AND SUPPLEMENT

  10.  The Government's 1999 report was criticised by some NGOs, and the UN Committee regretted that it did not follow its reporting guidelines, although it was not specific about how the report failed to do so.[16] Although it is a serious effort to cover the ground, we agree that the Government's report is not an easy document to digest. It reads at times as either an agglomeration of data or a somewhat generalised commentary in which fact and opinion are insufficiently distinguished. Overall it gives the common reader little sense of how the information it provides relates to the principles of the Convention, or what the Government's strategic priorities for advancing children's rights are.

  11.  In June 2002, the Government submitted a supplementary report, updating the 1999 report.[17] This provides a more concise and strategic assessment, though it does not claim to be comprehensive.

THE 2008 REPORT

  12.  The UN Committee (presumably in the light of the delay in considering the 1999 report) has elided the requirement for the third and fourth periodic reports.[18] The next UK report is therefore due in 2008. In a recommendation issued in May 2002, the Committee asked that future reports should be—

    ... concise, analytical and focusing on key implementation issues, and the length of which will not exceed 120 regular size pages; [and] aimed at: (a) ... informing the Committee on progress made on the enjoyment of human rights by children, factors and difficulties affecting the degree of fulfilment of obligations under the Convention, and measures taken to implement the Committee's concluding observations—by explicitly referring them—adopted with respect to the previous State party report and the ensuing dialogue; [and] (b) informing the Committee on fundamental developments in the State party during the reporting period with regard to the human rights of children.[19]

  13.  We recommend that the UK's next periodic report under the UNCRC is structured to show—

    —  the general principles of Government policy and action in the UK related to each of the Articles of the Convention;

    —  a report on the activities relating to children's rights issues, separately, of each central government department together with relevant NDPBs and inspectorates related to each department, and each of the devolved administrations, and some effort to capture related activities at local government level;

    —  a specific response to each of the recommendations in the UN Committee's previous Concluding Observations; and

    —  a plan of strategic action in relation to children's rights for the coming five years, indicating measures of success against which implementation can be judged.

LISTENING TO CHILDREN

  14.  Article 12 of the Convention states—

The contribution made to our inquiry by children and young people (six, aged between 10 and 16 gave oral evidence[20] and members of the Youth Parliament contributed questions for us to ask the Minister for Children and Young People) has influenced this report.[21] The then Minister for Children and Young People, John Denham MP, described some of the initiatives the Government too has taken to consult children more widely when he gave evidence to us in November 2002—

    ... we have prioritised work ... around Article 12 of the UN Convention, the right to be heard. We have put in place over the last year a very substantial programme of work aimed at ensuring that central government encourages the participation of young people and consults much more widely and effectively with young people in the formation of policy that is going to affect young people ... my reflection on that would be ... that the right of young people to be heard is an area where there is a considerable amount of work to be done ...[22]


  15.  The Minister acknowledged that many of these initiatives were at an early stage of development, and that their impact so far was largely "symbolic".[23] Nonetheless, we welcome these initiatives—there is value in symbols. However, one of our witnesses from an NGO commented on—

    ... the almost total lack of direct consultation and involvement of children and young people in the compilation of the [1999 periodic] report. Certainly in Northern Ireland there were no attempts by government to talk to children.[24]

This view is contradicted to some extent by the account given in the Government's report itself of the involvement of children in its preparation, although this emphasises indirect consultation via NGOs rather than direct participation by children themselves.[25] We hope this will be remedied in future as the result of the establishment of the Children and Young Persons Unit. However, we believe the fullest participation of children in the preparation of the next report is likely to be best advanced by the work of the commissioners for children and young people in Wales, Northern Ireland, and Scotland—and, we hope, in England. We recommend that the UK Government's next periodic report under the Convention on the Rights of the Child should be prepared with much fuller involvement of children and young people.

RESOURCES

  16.  Article 27 of the Convention enjoins states parties, in implementing "the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development" to "provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing" in cases of need. In various other Articles states parties are enjoined to act against other forms of deprivation—to provide health, education, information, protection from unacceptable or hazardous work, and opportunities for recreation.[26] The UN Committee recommended that public spending analyses should identify separately all spending on children.[27] In measuring severe deprivation among children (from data available from many countries in the form of Demographic Health Surveys and Multiple Cluster Indicator Surveys) a recent UNICEF report has used 8 indicators—food, safe drinking water, sanitation facilities, health, shelter, education, information and access to services. In each case operational criteria have been used to distinguish severe and extreme deprivation from mild and moderate deprivation and thereby to produce scientifically reliable and comparable data. The method of measurement was designed for application to all countries.[28] In the UK clusters of material deprivation indicators have been considered as an option in measuring child poverty by the Department of Work and Pensions.[29] This is one basis for reaching conclusions about an appropriate income threshold or poverty line. Separate identification of public expenditure on children in relation to education, school meals, residential care, and some areas of health care and social service provision, as well as child benefit and tax credits, is not impracticable. Collating and publishing such data more fully would allow a beginning to be made in tracking trends in expenditure on children which would inform an assessment of the impact of the implementation of the CRC as a whole. We recommend that objective data on progress towards the elimination of child poverty should be included in the next periodic report under the Convention.

Implementation and Dissemination

CO­ORDINATION AND PLAN OF ACTION

  17.  The Government's initial written response to the UN Committee's observations was brief,[30] though longer than the then Government's response to the UN Committee's 1995 observations.[31] The Government is also to be congratulated on initiating a debate in Westminster Hall on the Convention, on 24 October 2002.[32] The then Minister for Children and Young People told us that the Government was—

    ... not planning a [further] specific response to the observations of the Committee at this stage. We are intending that when we publish the overarching strategy for children in the new year that people should be able to read from that generally how we believe we are implementing the UN rights of the child ...[33]

  18.  We therefore asked the Minister to what extent the Convention did act as a guiding principle in the Government's development of policy. He answered—

    [The Convention] is not the only thing that we try to build policy upon, some of our own objectives such as poverty reduction I suspect come from the government's own priorities as much as from the UN Convention on the Rights of the Child, but certainly it is one of the documents that we would expect in developing the overarching strategy for us very much to have in mind and to see how well our strategy equips us to say that we are following the UN Convention.[34]

  19.  It remains to be seen whether the Government's forthcoming overarching strategy provides an adequate response to the UN Committee's recommendation for a national plan of action on children's rights.[35] But we are heartened by the Minister for Children and Young People's assertion that—

    The overarching strategy will take the Convention on the Rights of the Child as part of its framework and use the Convention's principles to inform all our future work with children.[36]

We recommend that the Government's overarching strategy for children and young people includes specific reference to the rights, principles and provisions of the Convention, and explains how these underpin its goals.

EFFECT ON THE LAW AND THE COURTS

  20.  International treaties do not have direct application in UK law unless they have been made part of domestic law by statute. Like the other UN Conventions, the Convention on the Rights of the Child has not been incorporated directly into UK law. Thus the rules contained in the Convention are examples of "rules of imperfect obligation": that is rules that are obligatory (in international law) but breach of which does not attract the imposition of a formal sanction by a judicial body.[37] Nonetheless, they are matters which judges bear in mind when interpreting legislation or developing the common law. The way in which the courts can use the UNCRC at present are similar to some of the ways in which they were able to use the European Convention on Human Rights (ECHR) before the Human Rights Act incorporated it into our law.[38] These include—

    —  the courts assume that Parliament does not intend to legislate in a manner incompatible with the United Kingdom's international legal obligations, including those arising under human rights treaties. They therefore interpret legislation in a manner consistent with those obligations whenever possible, even if there is no obvious ambiguity in the legislation;[39]

    —  in particular, where a statute was enacted to fulfil an international obligation, the courts will assume that it was intended to be effective for that purpose and will interpret the legislation accordingly;[40]

    —  where the common law is uncertain or there is a gap in the law, courts try to make decisions in a manner compatible with international obligations;[41]

    —  where possible, courts exercise their discretion in a manner compatible with international obligations;[42]

    —  when reviewing the exercise of discretion by public authorities, the courts subject decisions or acts which interfere with human rights under international treaties to specially anxious scrutiny. Such decisions or acts require particularly strong justification if they are not to be regarded as irrational or disproportionate and, therefore, unlawful;[43]

    —  courts regard people dealing with governmental bodies as having a legitimate expectation that, other things being equal, the Government will act in a manner consistent with the United Kingdom's international obligations. The Government can make it clear that it does not intend to be bound by its obligations in its domestic decision­making, but until it does so the courts are able to quash decisions which disappoint the claimant's legitimate expectation;[44]

    —  when courts are required to decide what legal public policy demands, they regard it as being part of the legal public policy of this country that courts should give effect to clearly established rules of international law, and so they treat international obligations as an indication of public policy.[45]

    —  in addition, under section 2 of the Human Rights Act, the courts are required to take account of the case­law of the European Court of Human Rights in determining any question relating to "Convention rights" as defined by the Human Rights Act.

INCORPORATION

  21.  In its Concluding Observations, noting the entry into force of the Human Rights Act 1998, the UN Committee on the Rights of the Child observed that it was—

and it encouraged the Government—

    ... to incorporate into domestic law the rights, principles and provisions of the Convention to ensure compliance of all legislation with the Convention [and] a more widespread application of the provisions and principles of the Convention in legal and administrative proceedings ...[47]

When we asked the then Minister for Children and Young People about the prospects of incorporation of the CRC into domestic law he commented—

    ... we are not looking to incorporate the Convention or, indeed, individual elements of it. It is really framed, virtually all of it, in very aspirational language and not in the sort of language that seems easy to put into primary legislation although I think it is possible to point to areas where legislation we have enacted is helping to enact the spirit of the Convention, for example the statutory guidance on listening to young people in schools which is part of last year's Education Act ...[48]

  22.  We do not accept that the goal of incorporation of the Convention into UK law is unrealisable. We believe the Government should be careful not to dismiss all the provisions of the Convention on the Rights of the Child as purely "aspirational" and, despite the ways we have listed above in which the CRC is currently able to exert influence, we firmly believe that children will be better protected by incorporation of at least some of the rights, principles and provisions of the Convention into UK law.

  23.  In view of the general importance of this issue, we intend to examine further the possibilities for incorporation of the CRC and other unincorporated human rights instruments. We believe that the assent of Parliament to these rights and principles, which could be secured by incorporation, would be a positive step towards enlarging and reinforcing the "culture of respect for human rights" which we wish to see in the UK, as well as enhancing their democratic legitimacy.

POLICY AND LEGISLATION: CHILD IMPACT ASSESSMENTS

  24.  For the present, and unless and until Government proposes and Parliament agrees to incorporate its provisions in domestic law, the Convention will be used by the courts in the way described above. It also has an important effect on the Government's legislative proposals and policy initiatives. We are not convinced, from the evidence that we have heard, that all corners of Government are sufficiently aware of the obligation under CRC Article 4 to—

  25.  The Convention should function as the source of a set of child-centred considerations to be used as yardsticks by all departments of Government when evaluating legislation and in policy-making, whether in respect of the progressive realisation of economic, social and cultural rights or in relation to guarantees of civil and political rights. We recommend, particularly in relation to policy-making, that Government demonstrate more conspicuously a recognition of its obligation to implement the rights under the Convention.

  26.  In relation to new legislation, the UN Committee was UN Committee was—

In course of our own legislative scrutiny work, this committee seeks to ensure that Parliament is made aware of issues of compatibility with the Convention, [50] and that, in making the law, the two Houses are able to make well­informed judgements about what weight to give to children's rights, measured against the internationally agreed principles, guarantees and goals of the CRC.[51] Our own scrutiny, however, is limited to review of compatibility with the rights set out in the Convention. It does not amount to a comprehensive consideration of the impact of proposed legislation on children themselves, which the UN Committee felt was needed.[52] The child impact analysis scheme initiated by the All Party Parliamentary Group for Children has produced a number of well­researched and considered assessments of the impact on children of proposed legislation.[53] They are reported as being—

    … of particular value because of the relative invisibility of children and young people in the political process…[54]

  27.  In this context, we asked the Minister for Children and Young People whether he saw any merit in introducing child impact assessments for Government Bills introduced to Parliament. He was cautiously negative in response, fearing that they would not—

    ... amount to much more than either a rather bureaucratic exercise or sometimes exercises in creative writing. I think the problem is not so much to say in principle you can do them but to make sure they mean something and change something as a result. I have not an issue of principle about having child impact assessments but a bit of scepticism about whether they would add as much to the process as people would like ... You can create a huge infrastructure for doing this without any great impact on policy. I have not got a closed mind on it but we need to be convinced that it would have the effect that we ... want.[55]

Despite the Minister for Children and Young People's concerns, we note that legislation is subject to an assessment of its potential implications for public finance and public service manpower, a regulatory burden appraisal, and a human rights compliance assessment. We believe that the idea of child impact assessments throughout the UK deserves further thought. Their presence in the explanatory notes to a Bill would be a sign of the Government's genuine commitment to place the best interests of the child at the heart of policy. We recommend that the Government consider incorporating child impact assessments in the explanatory notes to Government Bills. Such assessments will depend on the extension and improvement of statistical indicators used in tracing, from time to time, the fulfilment or otherwise of the provisions of the Convention.

CURRENT LAW AND THE UNCRC

  28.  We now turn to our consideration of the UN Committee's specific conclusions and recommendations. In this context we note that the UN Committee did not fully explain how far it had considered the extent to which existing laws, policies and administrative practices in the UK already offered protection against threats to children's full enjoyment of their rights which it had identified. To that extent, the UN Committee's own Concluding Observations mirror some of the faults it identified in the UK Government's periodic report.

  29.  For example, public authorities have responsibilities for combatting child poverty under a number of statutes (social security legislation, housing law, the Children Act 1989, the National Assistance Act 1948 and the Human Rights Act 1998), and at common law (which imposes a duty to support people who are destitute).[56] The significance of the UN Committee's comments on child poverty can be fully understood only in the light of the way in which the law is implemented, including how relevant financial and administrative policies and practices affect the practical benefit the law can confer on children who seek its protection. The same applies equally to other matters raised by the Committee, such as the protection of children against violence in the home, and such rights as life, liberty, physical integrity, due process, education and family life in the criminal justice and penal systems.

  30.  We have not attempted here to provide a full account of the effect of domestic law, policy and administrative practice on the matters raised by the UN Committee. However, these matters will have to considered when concrete proposals for change are drawn up in response to the Concluding Observations of the UN Committee and in the Government's response to this report.



14   The UK's first report was required to be made within two years of ratification, and was made in 1994. Back

15   See Annex 3. Back

16   See Annex 3, para 2. Back

17   See Annex 2. Back

18   See Annex 3, para 62. Back

19   CRC/C/118, 30th Session, May 2002. Back

20   See Twenty-second Report from the Joint Committee on Human Rights, The Case for a Human Rights Commission: Interim Report, Session 2001-02, HL Paper 160/HC 1142, op cit, QQ 244-276. Back

21   We also took evidence from NGOs working in the field of children's rights and welfare, and from other representatives of public authorities delivering services to children. Some of this oral evidence was published with our Twenty-second Report of Session 2001-02 in September 2002. Back

22   Q 37 Back

23   Q 49 Back

24   Q 16 Back

25   Second Report to the UN Committee on the Rights of the Child by the United Kingdom 1999, Section 1.6. Back

26   Articles 6, 13, 17, 24, 28, 31 and 32. Back

27   See Annex 5, para 11. Back

28   UNICEF: Child Rights and Child Poverty in Developing Countries, to be published, UNICEF, New York, 2002. Back

29   Department for Work and Pension, Measuring Child Poverty Consultation, Preliminary Conclusion, May 2003 Back

30   See Annex 2. Back

31   "Baroness Williams of Crosby asked Her Majesty's Government: What response they have made to the United Nations report criticising government policy with regard to the rights and welfare of children. The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, there is no obligation under the United Nations Convention on the Rights of the Child for the United Kingdom Government to respond to the observations of the United Nations committee, and we have no plans to do so." [HL Deb., 2 March 1995, c 1577; se also HC Deb., 9 February 1995, c 370W]. Back

32   HC Deb., 24 October 2002, cc 139WH-182WH. There has also been a short debate in the House of Lords, on a starred question asked by Baroness Massey of Darwen, HL Deb., 21 October 2002, cc 1061-1064. Back

33   Q 43 Back

34   Q 44 Back

35   See Annex 3, para 15. Back

36   HC Deb., 24 October 2002, c 145WH. Back

37   H. L. A. Hart, The Concept of LawBack

38   Described, for example by Lord Bingham, HL Deb., 3 July 1996, cc. 1465-1467. Back

39   See e.g. Garland v. British Rail Engineering Ltd. [1983] 2 AC 751 at p. 771 per Lord Diplock; Litster v. Forth Dry Dock & Engineering Co. Ltd. [1990] 1 AC 546, HL. Back

40   See e.g. R. (Mullen) v. Secretary of State for the Home Department, Times, 31 Dec. 2002, CA, interpreting s. 133 of the Criminal Justice Act 1988 in the light of Art. 14.6 of the ICCPR. See e.g. R. (Mullen) v. Secretary of State for the Home Department, Times, 31 Dec. 2002, CA, interpreting s. 133 of the Criminal Justice Act 1988 in the light of Art. 14.6 of the ICCPR. Back

41   See e.g. DPP v. Jones [1999] 3 WLR 625, HL, at p. 634 per Lord Irvine of Lairg LC. Back

42   See e.g. Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] QB 670, CA. Back

43   Bugdaycay v. Secretary of State for the Home Department [1987] AC 514, HL; R v. Ministry of Defence, ex parte Smith [1996] AC 517; R. v. Secretary of State for the Home Department, ex parte Simms [2000] AC 115, HL; R. v. Secretary of State for the Home Department, ex parte Venables and Thompson [1998] AC 407, HL (in which the CRC was taken into consideration). Back

44   R. v. Secretary of State for the Home Department, ex parte Ahmed and Patel [1998] INLR 570, CA, approving and applying Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 183 CLR 273, HC of Australia. Back

45   Oppenheimer v. Cattermole [1976] AC 249, HL; Blathwayt v. Baron Cawley [1976] AC 397, HL; Cheall v. Association of Professional Executive Clerical and Computer Staff [1983] 1 QB 127, CA. Back

46   See Annex 3, para 8. Back

47   See Annex 3, para 9. Back

48   Q 51 Back

49   See Annex 3, para 8. Back

50   For a description of our approach to legislative scrutiny, see our Fourteenth Report of Session 2001-02, Scrutiny of Bills: Private Members' Bills and Private Bills, HL Paper 93/HC 674, paras 1 to 5; and see also our First, Eighth, Fourteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty-fourth, Twenty-fifth and Twenty-sixth reports of Session 2001-02. Back

51   We do not, however, scrutinise Bills before the Scottish Parliament or the Northern Ireland Legislative Assembly; nor do we examine the draft subordinate legislation to be made by the National Assembly for Wales. The Northern Ireland Assembly has the benefit of the advice of the Northern Ireland Human Rights Commission, and there is a proposal to establish a Commissioner for Children and Young People in Northern Ireland. The Scottish Parliament is proposing to establish a Scottish Human Rights Commission, and one of its proposed functions is to advise on legislation. There is also a proposal to establish a Commissioner for Children and Young People in Scotland. The National Assembly for Wales, in the particular area of children's rights, can call on the Children's Commissioner for Wales for advice. Back

52   See Annex 3, para 25. Back

53   Recent assessments have been produced on the Criminal Justice Bill and Licensing Bill. Back

54   Child Impact Statements 1998/99: the next stage in child proofing UK Parliamentary Bills, National Children's Bureau: 2000, edited by Lisa Payne. Back

55   QQ 51 & 52 Back

56   R v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, CA. Back


 
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