MONDAY 18 NOVEMBER 2002

__________

Present:

Lester of Herne Hill, L. Jean Corston, in the Chair
Parekh, L Vera Baird.
Perry of Southwark Mr Richard Shepherd
Whitaker, B. Mr Shaun Woodward

__________

RT HON JOHN DENHAM, a Member of the House of Commons, Minister of State for Young People, Home Office and MS ALTHEA EFUNSHILE, Director, Children and Young People's Unit, Department for Education and Skills, examined.

Chairman

  1. Welcome, Minister. It is a pleasure to welcome you to this meeting of the Joint Committee on Human Rights. Welcome to you, Ms Efunshile, it is good of you to appear before us. You will know, I am sure, that the background to this session for us is that it will help to conclude the first of the themed parts of our inquiry into the case for a human rights commission which has focused on children particularly and as to whether or not there is a case for a commissioner for children's rights. Also, it gives an opportunity to discuss with you the government's compliance with and implementation of the UN Convention on the Rights of the Child, following the UN Committee's concluding observations which were issued on 4 October. That is the background to today for us. Now, we noted that the UN Committee welcomed the progress which had been made by the government in advancing children's rights and interests. They refer to the Human Rights Act and other legislation; efforts to reduce child poverty; the establishment of the Children and Young People's Unit and things like SureStart, Parent Line and the increasing participation of children in government, local authorities and civil society. Given that the principal target of government policy is the commitment to reduce and eventually eliminate child poverty, aside from that what would you say might be termed the economic and social rights and to what extent do you acknowledge a deficit in these enjoyed by children in the UK at present?
  2. (Mr Denham) Firstly, Chair, can I say how pleased I am to be in front of the Committee with, as you said, Althea Efunshile who is the Director of Children and Young People's Unit. We welcome the chance to give evidence on the UN Convention. I am pleased that you, with the UN, have acknowledged the very significant commitment we have made, for example, to tackling child poverty. So far as other rights are concerned, of course the enactment of the ECHR into domestic law applies to children and I think enshrines in law many significant rights which are found, also, within the United Nations Convention on the Rights of the Child. If you look perhaps at where we have prioritised work, certainly in my time as the Minister for Children and Young People, it would be 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. I suppose my reflection on that would be doing that work probably indicates that we would say that the right of young people to be heard is an area where there is a considerable amount of work to be done, and that is one of the issues we have been addressing over the last year.

  3. With regard to the civil and political rights of children, we have children detained still with adults and they are remanded still with convicted prisoners. Would you characterise the overall strategy of government policy as including a commitment to widen the human rights of children, bearing in mind what I have just said?
  4. (Mr Denham) I think I would say that we were trying to do two or three things at the same time. Our policies towards children and young people are aimed at improving the outcomes for young people, that is whether it is reducing poverty or improving health or education success or emotional well-being. Certainly that is what we indicated last year when we began the consultation on the overarching strategy for children and young people which we hope to publish in the not too distant future. We start with an emphasis on outcomes, I think. We have a deep belief that we are unlikely to achieve those outcomes unless we respect the rights of young people and, for example, the right of young people to be listened to and to influence policy seems to me to be inseparable from getting policies for young people right. We are unlikely to get policies which are effective and achieve the right outcomes for young people. We need to promote the rights of young people in order to produce the overall outcomes which the government is seeking. Thirdly, there are areas, clearly, where young people need rights, as it were, in their own right but we do see rights and positive outcomes for young people as very much going together not as two separate strands of government policy.

  5. I am sure the Committee will be very pleased to hear the emphasis on the right of children to be heard. This was something particularly raised with us by children who gave evidence in front of us earlier this year. Could you tell us whether departments have a budget for this, whether any money has been put into consulting with children and giving them the right to be heard? We know such initiatives cost money.
  6. (Mr Denham) Yes, they do. That would be the responsibility of individual governments. As you know, the main domestic departments all agreed in November last year a set of principles for the participation of young people in policy making. I think all those departments have published the way in which they intend to work now, naturally we expect departments to resource that from their own resources just as we would expect departments to resource any other consultation whether it was Green Papers or aimed at any other section of the community. Our aim here is to mainstream good practice and participation rather than see it as a one-off exercise. I would not have thought it would be appropriate to try and fund that centrally. An element of the work of the Children and Young People's Unit though is supporting departments in introducing good practice and giving them advice on how to go about doing it.

  7. It seems to me the duty to respect children's human rights can often be in conflict with other government political priorities. We have been told many times that there are no votes in children. How do you think the government should seek to reconcile those tensions?
  8. (Mr Denham) I hope there are votes in children for politicians of all persuasions because there are many, many people with the right to vote who have a deep interest in children. Certainly I would hope that whoever suggested that to you is wrong, I am sure it is not mine or your view, Chairman, on this. In terms of reconciling rights - I do not want to go into deep philosophical issues - I suppose you reconcile these issues pragmatically and on a case by case basis. It is the case, often, that we find rights themselves in conflict. If you take the example of the exclusion of disruptive children from school, you have not got one set of children's rights at play there because you have the rights of the child who is excluded to have an education and you have the rights of the children whose education is being disrupted to have an education. In practice government policy has to try and find a way of setting the balance between the two whilst doing as we are doing increasingly, making sure that the excluded child gets a proper education, as is their right. I do not think there is a simple way of saying how we resolve these conflicts other than to look at them issue by issue. I would say it is the job of democratic governments to be prepared to take decisions in those difficult areas.

  9. If I may move on now to the UN Committee itself. We did a homemade list of concerns that the Committee had raised and it numbered 84, some were obvious as far as they were concerned, more serious than others. In view of the fact they raised these concerns about the lack of compliance with the Convention how do you reconcile that with the fact that recently you stated that the government does not believe that "... anything in UK legislation contradicts any of its provisions"?
  10. (Mr Denham) Certainly I believe that is the case. I am not sure that I accept that the comments of the Committee amount to non compliance. For example, their comment that we have not adequately analysed our spending on young people does not mean that we have not substantially increased our spending on young people and aimed that at the poorest young people. I would not regard that as non compliance. I think we would see quite a few of the things that were said by the Committee as raising issues of good practice or best practice with us rather than non compliance. In the legal sense I do not believe there is anything in UK legislation that contradicts the provisions of the UN Convention.

  11. Fine. Members may wish to raise other issues at a later stage.
  12. (Mr Denham) Yes.

  13. If I could ask in terms of the government's response, could you tell us who in government has a specific responsibility for considering the UN's observations and recommendations? Could you talk us through the procedure; what departments will it involve; will it involve an audit and will there be a publication at some stage?
  14. (Mr Denham) Right. Broadly speaking, I am responsible for considering the response to the UN Committee so far as reserved matters are concerned right across the United Kingdom and so far as matters in England are concerned, the matters with which I am the Children's Minister for England. The responsibility for taking these matters forward in the devolved administration is with those administrations. Organisationally officials from the Children and Young People's Unit are working with policy leads in government departments, whether it is UK, England or in the devolved assemblies as necessary. My current intention would be to bring a paper to Misc.9, which is the Cabinet Sub-Committee which deals with children's matters, some time in the New Year when we have received advice as ministers on the overall government response to this. We are not planning a 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, I suppose it is a matter for my responsibility and others as to how much specifically we address particular issues raised by the UN Committee.

    Chairman: Thank you very much. Can I move on to issues in relation to the best interest of the child.

    Vera Baird

  15. Can I just interpose, Minister. Bearing in mind what you said, to what extent does the UNCRC function as a set of guiding principles at all then in the formulation of government responses?
  16. (Mr Denham) I think it is there as one of the key framework documents. It 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 Conventions 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.

    Baroness Whitaker

  17. You referred, Minister, to the right to be heard and improving outcomes and I think in the Children and Young People's Unit response to the Committee there were strenuous efforts to put the interests of children and young people at the heart of government.
  18. (Mr Denham) Yes.

  19. Perhaps you would give us some examples of the practical measures you would use to demonstrate publicly, particularly to children, what the strenuous efforts might be?
  20. (Mr Denham) Right. The efforts we are making, there are a number of different types. Obviously there is the establishment of the Children and Young Person's Unit with the Cabinet Sub-Committee chaired by the Chancellor, my own role. Then we have the type of work we have been doing over the last year to involve young people more effectively in policy making, now albeit sometimes relatively small numbers but nonetheless representative which if we took, for example, the work on young people and voting I think add a significant influence on the Electoral Commission's decision to go and look again at the pros and cons in the change in the voting age. These are things which do not just happen in the abstract, they seem to have a knock-on effect in the real world. Of course there are many government programmes from the many education programmes, excellence in cities and so on, through SureStart, the establishment of the Children's Fund itself. In terms of publicising these to children, I am slightly cautious - it is going to sound an odd thing to say - I would not want the government to sound as though it was running a party political broadcast for children by listing all the different ways that we are trying to invest money in children's services and to say how wonderful we are. I think where we need to concentrate is on those parts of the agenda which are about listening to children and young people and to highlight the fact that government wants to do this. One of the changes in the House of Commons as a result of the Modernisation Committee Report, for example, was the decision, subject to the Chairman of Ways and Means, to use Westminster Hall for occasional cross-cutting question times. That came directly as a suggestion for myself and ministers at health and education who deal with young people's affairs so we would have a young question time for Members of Parliament. It is a rare example of ministers volunteering to answer more questions from Members of Parliament perhaps. There are lots of ways like that where we are trying to change the procedures to say "We are taking youth affairs seriously in this House and as government". I hope that message will communicate itself to young people. Also - sorry this is a long answer - through the Children and Young People's Unit, we are working quite actively with people from the media who are interested in giving a higher profile to these issues to find ways essentially not so much of promoting what the government is doing but promoting youth issues in the media in a more effective way than we do at the moment.

  21. This may be a question more for Ms Efunsihle but one of the children who gave us evidence said where he would have liked to have seen the interests of the child given primary consideration was in things like planning for traffic, planning pavements, planning all sorts of things which affected safe working play areas.
  22. (Mr Denham) Yes.

  23. Now that is at a much lower level.
  24. (Mr Denham) It is.

  25. How does that come about?
  26. (Mr Denham) In part through promoting good practice through local authorities and the Local Government Association produced some guidance last year giving best practice to local authorities. As it happens next week we have a youth participation event with groups of young people who have been working on particular issues that they have identified as of concern to them, one of which is transport. They will be presenting the results of their work to John Spellar, the Transport Minister, and, as it were, demanding a response. There will be colleagues from health discussing proposals for young people about young people and alcohol and I will be doing a session about young people and street crime. Whilst some of these are perhaps symbolic at this stage, I think they are symbolic of trying to change the way in which Government works and to show we are prepared to sit down with young people and listen about the issues of concern to them. Part of this is working with local authorities. If you are looking for safe routes to school, for example, that is something local authorities have got to respond to with young people and we can only go so far in saying that is best practice.

  27. I should perhaps just add another youth remark which is a member of the youth parliament - this is in respect of your own role, Minister - said "Is it not the case that the minister for young people will be perpetually representing the interests of government to young people rather than vice versa, as it should be"?
  28. (Mr Denham) I hope I can say simply that by what I have done in practice over the last year, including the question times, the emphasis on youth participation and so on, I can show that is different and I am not trying simply to go to young people to say what a good job the government is doing.

  29. I am sure my colleagues will take up that issue. Could I return, finally, to the more strategic level and ask you whether there are any aspects of the fundamental principles in the Convention that you would think of incorporating even if we do not incorporate the Convention en bloc? For instance, they refer to child impact assessments on all new legislation, I think you talked about departmental budgets and mainstreaming, perhaps impact assessments might be a very good way of measuring that?
  30. (Mr Denham) Right. In terms of incorporation certainly 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, a number of examples of that sort. In terms of impact assessments, it is the sort of thing I think we look at from time to time. I have not yet been convinced, having seen quite a few impact assessments, that they 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.

  31. You do not think it might enable very busy officials to turn their mind to this matter?
  32. (Mr Denham) I think it is essential that we find ways of getting busy officials to turn their mind to it. Having been on the receiving end of some other types of impact assessments sometimes I think the busy officials may have an inclination to fill them in after the policy has been decided in the most persuasive way possible. 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 both want.

  33. My last question really, would it not be right to widen the Children Act to provide that any acts concerning children, the best interests of the child, are a primary consideration?
  34. (Mr Denham) I think the Children Act does not apply simply to social services. It provides already that when a court decides any question with respect to the upbringing of a child, the child's welfare must be the court's paramount consideration. I am not quite sure what sort of changes you think might be necessary to the Children Act. I have to say, because I do not have departmental responsibility for all these areas, it is not an area in which I have the most expertise.

  35. Other colleagues will probably take this up but there are children in prison, there are children who are asylum seekers, there are children in various areas of legislation, if I could put it like that, where their interests, I do not think, are the primary consideration.
  36. (Mr Denham) With regard to children in prison, certainly that is the subject of a legal action so I had better hold my fire on that particular case. There are other cases where government has said we believe the spirit of the Children's Act should be followed whether or not we think the Act applies. Certainly with regard to prisons where there is a legal action we had better wait for the outcome of that.

    Baroness Perry of Southwark

  37. Minister, I was heartened to hear you say that you regard the CRC in aspirational language as a guideline, a sounding board against which you look at policy. Nevertheless it seems important, does it not, that people who work with children, teachers and others who work with children, should be aware of it. Do you have any plans? Have you taken any measures to ensure they are aware of the aspirations in the Convention?
  38. (Mr Denham) I think this is an area where undoubtedly we need to do more than we have done so far. I think awareness will be growing in certain areas, not least for example in education through the introduction of citizenship education and the inclusion of the Convention in the admittedly not compulsory but illustrative work schemes which have been produced around citizenship education. I think certainly both teachers and young people, at least some of those teachers dealing with this area of the curriculum and the young people who receive it, will become more aware of their rights under the Convention. I think it is true that we have not promoted, as yet, knowledge of the Convention as widely as we might. One opportunity may be the overarching children strategy when we produce it next year to draw attention to it. It is an area where I think I have to say we could do more than we have done so far.

  39. I am sure you would agree creating a culture in general of human rights has to start with children.
  40. (Mr Denham) Yes.

  41. You have mentioned the statutory curriculum does not include it but the non statutory curriculum does. Surely that does mean not only that children should be given the opportunity to study their own rights and human rights in general but also the teachers who teach it need to be much more sophisticated about it than perhaps many of them have the opportunity to be so far. Do you have plans to create that knowledge and understanding amongst teachers?
  42. (Mr Denham) Certainly I think the DfES have been working hard with the teaching profession to make sure that citizenship education is introduced effectively. Certainly going around the country I have come across many good examples of rights issues, whether derived from the UN Convention or from the ECHR, being taught effectively and excitingly in schools and children actually thoroughly enjoy getting to grips with the concepts of rights and the sorts of issues of conflicting rights and so on that we were discussing earlier. I do think the DfES have worked very hard with teachers there. I think that possibly the area that we need to do more work on is if you like the more general audience, if we take teachers for example, who may not be dealing with citizenship education themselves in the classroom but where we would like them to have an awareness of the Convention.

  43. One of the children who came to give evidence to the Committee did say that he had only ever had one lesson on human rights and he thought that human rights was something other countries broke and he did not think he had any himself.
  44. (Mr Denham) The compulsory citizenship curriculum only started in September so let us hope the next term they will return to the UN Convention.

    Chairman: A supplementary from Lord Lester.

    Lord Lester of Herne Hill

  45. Could I apologise, first of all, for coming late, Minister, I have been detained by the Queen's Court. I had to rush over. It may be my question has been asked already in which case I apologise twice. On this question about non incorporation of the Rights of the Child Convention and its effects, one of the effects of it is that this is the only Committee, this Committee which you are attending, which can give Parliament advice about whether a measure does or does not comply in our view with the Rights of the Child Convention. That is the only source of advice that Parliament gets. The courts, of course, treat it as a binding obligation themselves so that those two branches of government have to treat it as soft law. I just wonder whether you think it is satisfactory it should be left to this Committee to have to provide guidance on an unincorporated Treaty obligation rather than domesticating the provision properly so it forms part of the law of the land?
  46. (Mr Denham) I think that the role of this Committee is obviously very, very important in this respect. I think the problem with incorporation is that the aspirational language of the Convention does not lend itself easily for translation into primary legislation in the way Parliament normally addresses legislation. I would prefer committees, this Committee in particular, to give advice to government and to the Houses of Parliament about whether we are compliant with the Convention than to take legislation that because of the way it is worded we are not terribly comfortable with and then say to the courts "You sort out whether this is compliant or not". I think it is quite important - and I will take this position as an issue of principle - that there are jobs that fall to democratic governments and to democratic chambers in a House of Parliament to take decisions about these issues. Clearly the courts have an important legislative role in many aspects of our judicial system but I think we should tend to avoid giving the courts the job of really sorting out what such broadly based legislation would mean.

    Mr Shepherd

  47. Parliament has never voted on this. It has never agreed to it by vote.
  48. (Mr Denham) No.

  49. You are telling us prerogative power should rule?
  50. (Mr Denham) I am saying if you are looking at the question of whether this legislation is being taken into action effectively I am defending certainly the rights of the Houses of Parliament to do so.

    Lord Lester of Herne Hill

  51. I think you are saying, Minister, if I could add, you think the Rights of the Child Convention is vaguer than the European Human Rights Convention and therefore it cannot easily be incorporated into domestic law?
  52. (Mr Denham) I think there would be some difficulties. It covers a much wider range of areas. There would be some very similar points also covering similar protections of rights expressed in different language. I am not a lawyer, I have to say this, but it seems to me there will be some difficulties in doing so.

    Mr Shepherd

  53. The European Court takes it into its mind when making judgments?
  54. (Mr Denham) As do domestic courts.

  55. Therefore it is being applied indirectly to the law of this land?
  56. (Mr Denham) Right, indirectly. Certainly there have been cases where judges have referred to the Convention - and this is not the legal language but as I understand it - as a relevant piece of background information, something which gives them some indication of the values, I suppose, against which they should be making a judgment. I believe it has been used in that way, yes.

    Mr Shepherd: How is that democratic? You said it was democratic.

    Lord Lester of Herne Hill

  57. Can I suggest a way?
  58. (Mr Denham) I am happy to sit back.

  59. I think I can help my colleague. The courts work on the presumption that Parliament when it legislates does not intend deliberately to flout Treaty obligations. It presumes when legislation is ambiguous that you give it a meaning which accords with the Rights of Child Convention if it is reasonably possible to do so. In that sense they are fulfilling their role of applying the law in a way which conforms with international law.
  60. (Mr Denham) I am sure that is what my brief says though not as eloquently as Lord Lester, thank you.

    Vera Baird

  61. Juvenile justice, Minister, if we could consider that. One of the recommendations of the Committee was that the UK should "considerably raise the minimum age for criminal responsibility". We have the lowest in the European Union at present, the age of ten in England and Wales and Northern Ireland and eight in Scotland. Does the Government intend to follow that recommendation and review whether the age of criminal responsibility might not be raised to match other countries in the EU?
  62. (Mr Denham) Yes. I do not think we have plans at present to raise the plans of criminal responsibility. It is not for me to answer on behalf of the Scottish Parliament either but personally I am not aware of plans by the Scottish Parliament to raise the age of criminal responsibility.

  63. The Scottish Parliament, thank you, but would you say there are no plans in our government to do so despite the recommendation?
  64. (Mr Denham) Not at present, no.

  65. I know the government - turning to a different approach, perhaps, to the same concerns - and you have announced yourself the need for preventative plans for young people starting from next April.
  66. (Mr Denham) Yes.

  67. Local councils will have to produce plans showing how they are going to try and tackle potential criminals and deflect them. I think that covers the ages seven to 13. Can you tell us more about that? What action is being taken to develop alternative and more effective methods for prosecution to make children responsible for their criminal behaviour?
  68. (Mr Denham) There are a wealth of answers to that. Let me touch on the main ones. We have asked local authorities to work together to put together clearer preventative strategies for young people at risk. That is not just young people at risk of offending but young people who may be at particular risk of becoming drug abusers or young women who may become pregnant, unwanted pregnancies at an early age. We have backed that up by allocating part of the growth from the Children's Fund to working with those local authorities to have identification and referral and tracking systems for young people so we can identify as many as we can of those young people at risk and therefore to be able to have a preventative intervention at an early stage. The Prime Minister announced recently that we will be publishing a Green Paper in the spring taking those basic building blocks further, again looking not just at young offenders, I need to stress, but the wider age of young people who are at risk. We have instituted already a range of preventative measures, some of which have legal force, some of which do not, but, for example, parenting orders which are proving successful where they have been used in working with the parents or families of young offenders and those who are getting into other sorts of difficulties, giving parents support in bringing up their young people with the hope of diverting them away from offending or whatever type of risk it is they are facing. What we want to do is look at how we can build on the measures which are in place already to address the needs of these young people better. I think the starting point for much of what we do is a feeling that there is a set of young people who are often known to schools, maybe known to the police and social services but the different agencies are not co-ordinating their interventions at an early enough age and at the moment we end up dealing with those young people when they have entered the criminal justice system; that is the area that we need to address. On the age of criminal responsibility, can I just pick up a point there. One of the issues, therefore, that we have to weigh is that one of the things you can sometimes do through the criminal justice system is to ensure there is some sort of intervention in the young person's life, either what you do with them or what you may do with their parents, for example the implementation of the parenting order may follow from a case taken through the criminal justice system. I think it is very important to make sure that we have the ability to get effective preventive interventions in place and, on occasion, having the gateway through the criminal justice system can support you in doing that. It is not purely about the age at which punishment, if you like, kicks in, it can be the ability to take effective measures which may include sanctions but may well include supportive measures too.

  69. There was a debate in Westminster Hall in October about the Convention on the Right of the Child and I asked you then - I do not know if you recall - about what I saw as an inequity of treatment between young offenders facing serious charges in the crown court and the protections which were given to child witnesses. You said - let me read it because it is a cause of some vanity to me - that I had ".... raised some important and well informed points about young offenders facing serious charges..." but, seriously, you went on then to say they included points on which you would like to reflect and I wonder if you have had a chance to reflect?
  70. (Mr Denham) I have to some degree, at least. When they were raised in Westminster Hall they were issues because I do not deal directly with this area of policy, which had not been put to me previously.

  71. Yes.
  72. (Mr Denham) I think we have made, as you acknowledged, some changes to the way in which the courts operated for defendants. I have not reached the conclusion since the debate that we should do more than we have done currently. I do feel - I have to say this is not on the basis of a lengthy reconsideration - that the issues are slightly different. On the one hand we are setting out to making sure that courts are not run in such an intimidating way that a young defendant cannot give a proper account of themselves, understand the procedures and the rest of it and the measures we have taken throughout the criminal justice system to protect vulnerable and intimidated witnesses who are in a position of possibly having to give evidence against somebody who may have been responsible for a serious assault, for example, or something of that sort, the two issues are not precisely the same. I am not sure I am convinced at the moment we need to go further on the position of young defendants. The old committee, of course, did recommend a strengthened youth court with a judge with two experienced magistrates to try young defendants who were accused of grave crimes. We have consulted on various options in the White Paper which we published last summer, particularly looking at the problematic issue of what you do about an older juvenile who is co-accused with an adult. I am not able to announce our conclusions today but I hope we can do so before too long. There were specific issues in the White Paper which we did commit ourselves to look at and which were raised with us by Lord Justice Old.

    Lord Lester of Herne Hill

  73. Can I ask a supplementary. Has the department, Minister, looked at why we have such a low age of criminal responsibility compared with other democracies in Europe and what the experience of those other countries is compared with ours in having a higher age of criminal responsibility?
  74. (Mr Denham) I think the reason they have is that it has evolved in that direction through a mixture of the view of the public and the judgment of politicians about the right age which enables the criminal justice system to sanction effectively. What I think we recognise is that there is no uniformity across Europe about the level of the age of consent and that the criminal justice systems seem to operate quite differently in a number of different countries, indeed the Scottish system is quite different in many respects from the English system for dealing with young offenders. One of the things we will want to look at as part of the Green Paper which I talked about earlier is whether further changes are needed to the way in which we run our youth justice system. I do not anticipate at the moment - but this is early days - addressing necessarily specifically the issue of criminal responsibility but it may be there are other changes we need to make to make sure we are more effective at stopping people becoming long term persistent young offenders which we will need to make through that Green Paper.

    Vera Baird

  75. Can I leave the topic that I was pursuing with you, Minister, about the protections for young offenders with just this thought: children are treated as automatically vulnerable witnesses entitled to and indeed needing all the protections that are given to them and it is very odd in that context that a defendant who is a child who gives evidence is not entitled to any of them.
  76. (Mr Denham) No.

  77. Children in custody, if we can go further on through the criminal justice process, when a young person has lamentably got into it. I think the Committee was pretty concerned, also, that a lot of children between 12 and 14 were being deprived of their liberty now in the UK and they were very concerned at increasing numbers of those children at earlier ages, it seemed to them, certainly for lesser offences and for longer sentences. In particular they drew attention to the impact of the detention and training orders. What steps will the government take to ensure that the courts are aware that imprisonment of children must be only a measure of last resort for the shortest appropriate period of time?
  78. (Mr Denham) The guidance which goes out to the youth courts, which is the guidance issue by the Judicial Studies Board, does make it clear that custody should be considered only for offences of high level seriousness but also taking into account the risk of reoffending. We have been developing a range of alternatives to custodial sentences, including intensive supervision and surveillance orders, for example, which are designed to be an alternative to custody but also to deliver some of the support and the structured response to the needs of the young person which are needed. I think we have to recognise, though, that there are rights of other young people who have been the victims of crime who are rarely spoken about and rights of the wider community on occasion to be protected from young people who will otherwise be serious offenders or serious repeat offenders. I think if you look at our strategy overall you can see that the Youth Justice Board in particular has introduced a range of measures which are intended to give the courts alternatives to custody which they can use where appropriate.

  79. I can tell you that in the area of Redcar, my own area, ISSOs seem to have been highly successful.
  80. (Mr Denham) Yes.

  81. Is there a case for looking at detention and training orders and perhaps reforming their procedures?
  82. (Mr Denham) They are relatively new and the idea behind detention and training orders, as the Committee will be aware, is really to try to make sure that we bring a more structured approach into the education and training and supervision of young people than would happen normally in a traditional detention in a young offenders institution. I think it is much too early at the moment to suggest that some radical changes are needed to the detention and training orders because I think they are an attempt to improve the type of treatment that a young person gets when it is necessary for them to have a period of custody.

  83. Your approach is really to say they must stay there as a backdrop but they are improving non custodial models very quickly in a very diverse way?
  84. (Mr Denham) We are trying to address this right through the system. We are trying to have better early prevention. We are trying to have better ways of dealing with young people so, for example, referral orders which take place when somebody pleads guilty to a less serious first offence which now goes to a community panel. We are trying to have better alternatives to custody through the ISSPs and then, also, you have detention and training orders which are trying to ensure the custody is more likely to reduce the risk of reoffending because there is a much better focus on well planned time both in custody and also the support that is there after release. We have been trying to improve every element of the system of youth justice sentencing.

  85. Looking then at children in custody, I think you said in answer to Hilton Dawson in the same Westminster Hall debate that whether or not the Children Act applies to children in custody - and I am quoting you now - "... the welfare, care and needs of young people in young offender institutions are central to what the government wants to achieve". If that is so, setting aside whatever the outcome of the current case is, should the government not take action to provide that the Children Act does apply in these circumstances giving statutory recognition to your own objectives, as it were?
  86. (Mr Denham) I think I will skirt around the legal action, if I may, Chairman. Let us remember the action that is being taken. We are moving well on the target towards 30 hours of education a week in young offender institutions. We are making good progress to that target which should be in place by March 2004. If you take, for example, the area of education, I think we can demonstrate that irrespective of whether the law does or does not apply we are making moves in the right direction. There have been very significant efforts made over the last couple of years to improve the risk assessment, the health support, for example, that is there to reduce the risk of suicide which is a major issue, obviously, in young offenders institutions. I think we are in a position here where we can say the government is undoubtedly acting, whether or not it is compelled to by law, we are doing it because we recognise the needs of these young people.

  87. I am going to move on and it will be my final question to deal with the issue of the protection of young offenders from committing suicide and self harm in custody. Is it not fairly clear that prisoners on the juvenile estate need more staff and staff need better training and more appropriate practices need to be implemented and conditions need urgent improvement? Is the government going to take remedial action very quickly? The numbers of suicides are very high.
  88. (Mr Denham) They are high. There have only been two this year in the under 18 estate but that is clearly two deaths too many. We are implementing currently a three year strategy to reduce suicide and self harm which the Home Secretary announced in February 2001. That is being piloted at the moment in five institutions. As I said a moment ago it includes better screening, better risk analysis, more support for the first night in accommodation and so on. More generally there are other strategies in place, including counselling, support groups, psychological supports and a number of other institutions. The work that the YJB did with the prison service in 2001 looked specifically at juvenile self harm and suicide. I understand that the recommendations for its report are being implemented now across the under 18 prison service. I think there is a substantial programme of work in place. It might be helpful, Chairman, if I could write to the Committee giving more details in the area. It is not one that I deal with on a day to day basis but I think there is a fair amount in train but none of us is complacent and there is more we want to do.

    Vera Baird: Thank you. We will be very glad to receive your letter.

    Chairman

  89. Before we move away from the subject of juvenile justice, the 1998 Crime and Disorder Act abolished the principle of doli incapax which put the burden on the prosecution to prove that any defendant aged between ten and 13 understood that the offence committed was seriously wrong. Do you know whether the Home Office has made any assessment of the effect of the abolition of doli incapax on defendants of that age?
  90. (Mr Denham) No, I do not. Perhaps I could write to you on that, Chairman, but I do not have that information.

    Baroness Perry of Southwark

  91. I want to go to a slightly broader question about the prevention and cure, so to speak, of crime amongst young people. Obviously the incarceration of children does raise very different issues from the incarceration of adults. I am sure the government is committed, as the conservative party is committed, to trying to find ways of getting at children much earlier to prevent them getting into the life of crime. Do you think we could create the most effective route through better education and training opportunities? Do you feel this is the best route?
  92. (Mr Denham) I think that education and training is one of the essential elements. There is quite a high correlation between young people, particularly young men who fall behind in their early years of primary education and future offending behaviour. There is quite a high correlation obviously between truancy and absence from school generally and offending. So ensuring we are successful with young people in schools has to be part of our own overall preventive strategy. At the same time I think what we need to recognise, also, is there may be reasons for those problems which are showing up in school, in the wider family, the wider community, the peer group the young people have got. The reason we are putting such an emphasis on trying to join up different services - education, probation, the police, social services and so on - is to make sure we try to address the problems that a young person has got in the round. I think that at the moment most people would accept that different agencies find themselves trying to deal with a part of a complicated problem and are probably less effective than they could be because of that. Education and training is critical but probably unless we deal with some of the other issues in the background as well we are not likely to be wholly successful.

  93. Coming on then to the cure, the children who do find themselves in prison. The Howard League report made some pretty astonishing findings about how poorly the access to education was which was offered to such children and indeed the quality of the education they were offered was often inadequate, particularly in the light of the fact many of them do have special educational needs.
  94. (Mr Denham) Yes.

  95. As they do not come under the Education Department at all they are still under the Home Office, so to speak, when they are offered any kind of education in prison it does seem as if the opportunity to get them out of the cycle of crime through education is being missed through the time they are in prison. Do you have any thoughts on how the situation could be improved?
  96. (Mr Denham) I think we are a bit disappointed in this area that some of the changes we have made have not been picked up more widely. The responsibility for providing education for young people in custody has been transferred to the Prisoners Learning and Skills Unit which is part of the Department for Education and Skills and they fund the Youth Justice Board now to provide education. It is on the back of that the majority of juveniles in custody now have access to 15 hours of learning a week and that will increase to 30 hours a week by the end of March. Special education needs are important. It is true that many offenders have learning difficulties or other disabilities and the DfES is developing a special educational needs policy in partnership with prisons and also juveniles in custody. I understand that special educational needs co-ordinators and learning support assistants with a ratio of one to ten are being appointed now in all young offender institutions which are caring for juveniles. I think there is progress in this area.

  97. Do you know, Minister, how many children there are under the statutory school leaving age in custody and how many are receiving full-time or part-time education in line with the national curriculum?
  98. (Mr Denham) The numbers under the statutory leaving age, I would have to come back to you on. I have the overall numbers of young people, I have the numbers, also, in the local authority estate but I am not sure I have precisely the number you are after. Could I perhaps come back to you on that?

  99. Do you have any feel for how many of the numbers you have are receiving full or part-time education which is covered by the national curriculum?
  100. (Mr Denham) The figures that I have overall tell me about the overall access to learning. I would rather check I think on those under the statutory leaving age and come back specifically with figures on that. I think that would be more helpful than me trying to extrapolate from the figures I have in front of me.

  101. Perhaps you would come back with that and also figures on how many have special educational needs and what provision is made for that?
  102. (Mr Denham) Yes.

    Lord Lester of Herne Hill

  103. I wonder if I could just ask a supplementary. When you are doing it, Minister, it would help me, certainly, if you could indicate what difference there is in the treatment of children in custody in terms of education and children not in custody having regard to Article 2 of the First Protocol to the European Convention and Article 14, the effect of discrimination. If you take those as standards it would help very much if these figures could be related also to the difference in practice between what children receive by way of education who are not in custody and children who are in custody and what the justification is for any difference between them?
  104. (Mr Denham) Right. We will do that, certainly. I have to say that I do not think I will end up justifying a difference in practice on the basis of any principle. We are making progress in this area but we would all recognise, for example, that the same provisions have applied for some time for young people who are excluded from school. It is only in the last year, since September indeed, that we have been able to guarantee full time education to those permanently excluded from school and that has been driven by the deliberate act of government policy recognising the need to provide more effectively for those young people. There are areas where if there is a shortfall in provision it is more likely to arise from the fact that government has not made the progress we want to yet.

  105. Would you not be very vulnerable to legal challenge on that basis by someone who said "Look, I am a victim of discrimination"? How do you justify it?
  106. (Mr Denham) I imagine we may have been legally vulnerable certainly in the area that I have talked about, exclusion from schools. The reality is governments have recognised the problem and dealt with it.

    Baroness Perry of Southwark

  107. Before we move off this topic, you have said that the welfare, care and needs of young people in young offender institutions are central to what the government wants to achieve. Are you prepared to say the government will take action to provide that the Children Act applies in these circumstances?
  108. (Mr Denham) Again, that is currently subject to legal challenge so I would rather stay off that one if I may. Whilst I recognise that there is progress still to be made, when we have talked about implementing the spirit of legislation, I think if you look at the work that we have done that I have promised to write to the Committee about, on self-harm, if you look at the work that we have done to improve educational provision, the refurbishment of facilities at Feltham, for example, I think that is a recognition that the Government is aware of its responsibilities to young people who are in its care in the young offender institutions and I believe that will remain the same whatever the final determination is about the legal position in relation to the Children Act.

    Baroness Whitaker

  109. I want to talk about physical punishment. Could I clarify some parts of the Government's position on this? First of all, do you acknowledge that physical punishment is a human rights issue for children or do you view it as a different area?
  110. (Mr Denham) We certainly believe, and I think this is the established position, that physical punishment is covered by the European Convention on Human Rights and that has been tested against the domestic law as it then was of reasonable chastisement and it was ruled that the European Convention limited the use of reasonable chastisement so clearly there are issues of human rights around the issue of corporal punishment, yes.

  111. Have you talked to children about this? Can you tell us what they said?
  112. (Mr Denham) Yes, I have. What I will say is that in my experience it is pretty low down children's list of priorities compared, for example, with their experience of being victims of crime more generally in the streets. I think that is quite important, to get the priority in this area right.

  113. Would you put the physical punishment of children within the culture of responsibility or do you think it helps in the agenda of respect of rights? How does it sit with our values?
  114. (Mr Denham) Let me be quite clear. Personally I abhor smacking. I have got two children and I have never smacked either of them, so I am not going to appear in front of this Committee defending as it were the benefits of smacking. However, we have taken a view as a government that this is not an area in which we should seek to criminalise activities by parents because that is unlikely to assist in moving things forward. I personally would put the emphasis much more strongly on the positive measures we can take as a government through programmes like Sure Start, for example, to promote good parenting. An intrinsic part of that work is to support parents in understanding alternatives to corporal punishment as a way of disciplining their children.

  115. That is very interesting. I was thinking of asking you later about government initiatives to support families who would like to have less violent forms of punishment. Perhaps you could say a little bit about that.
  116. (Mr Denham) Sure Start is probably the largest programme aimed at supporting parenting of younger children between 0 and five and that will be extended in future. We also support the National Parenting Institute, the ParentLine service, all of which you will find on examination gives support to good parenting, parenting that avoids the need for corporal punishment. It may be an opportunity to say that one of the things I find slightly disappointing about the UN approach here was how much of the emphasis of the UN approach was about the somewhat arcane wording of a piece of Victorian legislation and how little of their approach was the extent to which governments have programmes in place to support good parenting which might have the effect of minimising the use of corporal punishment. That is personally where I think the debate and the discussion should be.

  117. You differentiate between the obligations of those who stand in the place of parents and teachers, who are not allowed to smack What is the basis of this?
  118. (Mr Denham) Because the view of government has been that this is at the end of the day a parental responsibility and therefore, as the law stands at the moment, the decision, for example, to allow a child minder to smack is one that should be consciously taken by a parent; it is not one that should simply go by default, so there are responsibilities on parents who exercise corporal punishment and so there is that differentiation between parents and others.

    Baroness Whitaker: I think the view of the European Commission is slightly different, if I am right, that Article 8 is not engaged in such a case.

    Lord Lester of Herne Hill

  119. I think the position is that when it is state schools it is quite clear that they cannot administer corporal punishment in breach of the Convention. When it is private schools it is pretty clear to, that there is a positive obligation on the state there, and when it is with regard to parents, if it reaches a certain degree of severity then the state would also be responsible for that. While I have got the floor could I just add one question, which is this. Mr Denham, I do not know whether you are aware of this but, looked at through non-British and Irish eyes, we are very much out of step on corporal punishment vis-a-vis the rest certainly of western Europe. Corporal punishment is known I think as le vice anglais by our continental counterparts, so when you say you are disappointed by the UN Committee it may be a cultural matter, that they really are looking at us as being out of step with most other advanced democracies.
  120. (Mr Denham) The reason I was disappointed was more that, given certainly my view that it would be desirable to minimise the use of smacking, the really practical question is, are we doing things that would minimise it and supporting parents to bring up their children in different ways, and very much it seems to be looked at in terms of what was in the legislation alone and the relationship between that and the UN Convention or the ECHR rather than that broader context. I think that is significant because, having had the chance to discuss this issue, for example, with the Swedish Children's Minister last May I was given the very strong impression that this was a law that had never been enforced in Sweden, and so it is other mechanisms that brought this about. One of the difficulties that I have in this area is that I do not think we have a particular tradition in this country of passing legislation that we do not intend to implement and it may be that other countries have used symbolic legislation to give a sense of direction in a way which we are not used to doing, certainly in my time in the House of Commons. Usually, if legislation is passed, we expect somebody to enforce it.

    Baroness Whitaker

  121. Minister, we do have a problem with domestic violence in our society. I am sure nobody would support a concept of reasonable chastisement of a husband or a wife - but do you think there is any connection between violence against women and violence against children?
  122. (Mr Denham) I will have to familiarise myself with all the evidence but a number of things are clear. One is that in relationships where there is domestic violence there is a much higher than usual chance of the children subsequently being the victims of violence. I believe that I am right in saying that there is quite a strong correlation between boys being brought up where their fathers abused their mothers and the likelihood of them carrying out domestic violence later in life, so the correlations are there and it is why domestic violence is a very important issue to raise and for us to make a lot more progress on than we have done so far. What concerns me, because I have not seen the evidence here, is that the sort of mild smack that most parents have in mind if they are talking about smacking their children is not of the same order that we see in domestic violence, nor have I as yet seen evidence from any organisation that suggests in a sense that there is no distinction and once there is a smack you are in the same category as the person who is beating up their wife in the home or beating up their children. I think it is quite important that we do not tend to lump this in as all being indistinguishable violence and therefore all bad in the same category because I think we lose contact then with the common sense of most people in the world outside who do not understand what we are talking about.

  123. It is very interesting you say that because there was a MORI poll in 1999 in which 73 per cent of those polled said that they would back a change in the law to abolish physical punishment if they could be sure that parents would not be prosecuted for trivial smacks. Like you, Minister, I abhor physical punishment but I would not swear that I have never delivered the odd clip on the ear.
  124. (Mr Denham) Certainly the results of the Government's own consultation in 2000 was that it would be better and it was the preference of parents for us not to change the law in this area. One of the great difficulties, and I think that some of the devolved administrations are looking at this themselves, is trying to write a law that would adequately define what it was you meant was acceptable. There are some real difficulties in doing that. People are talking about should it be legs or should it be hands or around the head or whatever, or what age. It creates its own problems and whilst the MORI poll may well reflect a view that is out there amongst parents one of the things that I think we need to consider is how easy would it be to construct a law which drew those types of distinctions and which people could understand. The Government's view is that as a result of the ECHR ruling in a case that was taken to them the law is sufficiently clear as it stands.

  125. There is a related matter which is commented on by the UN Committee, the absence of separate statistics for crimes against children. Would the Government consider collecting data on crimes of violence committed against children that were reported to the police, including perhaps whether there is the defence of reasonable chastisement, under the Human Rights Act?
  126. (Mr Denham) We certainly need to do more to capture statistics about young people as victims of crime but I would say, having talked to a lot of young people about this, that smacking is not the issue they are talking about. They are talking about other types of violence, the way they suffer from anti-social behaviour, their fears of getting around on transport and so on, and that is an issue which is a very important issue because it indicates that if we are talking about listening to young people we really do need to listen to them. There has been a lot less pressure on government to deal with young people and support young people as the victims of crime than there have been in lots of other circumstances. I think that is reflected in the fact that although crimes are recorded by the police, whatever the age of the victim, they are not recorded by age. It is not a question, as the UN Committee put it, of the crimes not being recorded. They are recorded, but the data systems the police have do not enable us to distinguish by age. We are improving the data systems with the police. In time we will be able to do that but I have not got a deadline for it. The second problem we have is crime survey, which is distinguished from recorded crime where individuals are asked about their experience of crime. That, for I suppose historically methodological reasons, has only been 16 upwards. We are doing a one-off extension of that initially which will capture 10-15 year olds and that is under way at the moment and we should have the results next year. My personal view is that we need to do much more in years to come to focus on young people as the victims of crime and I think we will need the data to back that up.

    Chairman

  127. Minister, during the Westminster Hall debate on the Convention on the Rights of the Child in relation to the option protocol on the sale of children, child prostitution and child pornography, you did say that the Government intended to ratify the protocol but you went on to say: "We will be in a position to do so when we have found a way to ensure that our laws cover internal child trafficking as well as the external trafficking that will soon be so covered". How soon do you anticipate sorting out the legislative situation to enable that ratification?
  128. (Mr Denham) Unfortunately, I cannot tell the Committee that we have yet found the parliamentary opportunity to do so. Personally, I hope as soon as possible but it does depend on parliamentary time to do so. We have covered, not least through the trafficking legislation in the Nationality, Immigration and Asylum Bill, some of the major gaps that were there in legislation and we are not fully able to comply but it is an important issue for us.

  129. If I may raise a subject which is topically important in relation to Internet child pornography, we all know of the case where it appears that up to or probably more than 7,000 British people have been logging on to a web site in the United States where there is the most appalling child abuse and assault, and we do know that child protection is not listed as one of the priorities that the Governments sets for police forces, so the Committee would like to know whether the National Policing Plan, which is the first to be made under the Police Reform Act, will address the issue of Internet child pornography.
  130. (Mr Denham) It will certainly address the issue of child protection. The National Policing Plan is not that specific about detailed elements and strategies to tackle the whole range of different crimes. It has to be a manageable document, but certainly the issue of child protection and the responsibilities that the police have in that area will be included in the National Policing Plan.

    Mr Woodward

  131. Can I begin by asking you, Minister, about the Welsh Commissioner for Children? How are you going to evaluate the success or otherwise of the Welsh Commissioner?
  132. (Mr Denham) As the Welsh Commissioner has been established by statute, I suppose what we will do, or I certainly intend to do, is to read the reports that he produces on his work. I think the first is due to be presented to the Welsh Assembly on the 28th of this month and we will obviously want to look at his experience in establishing his role and the challenges that he has faced. We will be very much relying on his own assessment of what he has been able to achieve and obviously we will be looking with interest at the Welsh Assembly.

  133. Have you been in touch with him since he has been appointed?
  134. (Mr Denham) No, I have not, and it is an area that we have to be slightly careful about, not wishing to compromise his independence, but certainly when he has produced a report and there is a substantive document to discuss then that is certainly something that we can talk about doing.

  135. I should obviously register my own interest: I have been a trustee of ChildLine for ten years. As a trustee I have certainly been arguing for commissioners for a long time, but in respect of this Committee, we have taken evidence from him and I do not think he found his position compromised in terms of his independence. There are some people who, listening to your remarks just now, might feel that the Minister for Young People, in a period of 18 months, might have found occasion, given the importance of the Welsh Commissioner for Children, to at least take some informal consultation and evidence and have a view forming already as to its success.
  136. (Mr Denham) They might take that view. My own view is that I have waited to see his role established, to produce his first annual report, which he will do at the end of the month, and I think that will feed into our own consideration about these issues.

  137. You must be aware that, almost without exception, there is not a single children's body which supports the Government's current position in continuing not to have a children's commissioner for England. It is not as if this is operating in a neutral place. Out there bodies are arguing very strongly that the British Government should move and do the same for the children of England as is being done for the children of Wales. Are you entirely happy with the position of saying, "We are going to wait for the first report", and are you going to continue to let the time flow continue like this?
  138. (Mr Denham) I certainly recognise that we need to resolve what, if anything, we are going to do in this area before too long, not least because when we were consulted on the overarching strategy for children it was an issue raised by quite a lot of the NGOs in that, and although I do not want to totally commit myself, there will be some advantages in resolving this matter when we publish that strategy so people will know where we stand. What I think is worth doing is saying two things. One is that we want to look at the emerging experience from other countries and, secondly, we need to have some clarity or we will need ourselves to bring some clarity to the different roles that people want when they talk about a children's commissioner. There is a huge variety of roles, just to give you some idea. Some people seem to propose what essentially would be an ombudsman model, taking up individual cases and then perhaps occasionally, like the Pensions Ombudsman, throw in some conclusions about it. Some at the other end of the spectrum want it to be a rights commissioner focused very heavily on the UN Convention and checking whether we have established those rights or giving a view on that. Some want a broader ranging children's champion, able to pick up issues and go off and investigate them, and yet others seem to propose a model that is more akin to a permanent committee of inquiry into failures in children's services. One thing which is fairly clear which is that it is quite difficult within sensible resources to fulfil all of those roles easily, and one of the things we are interested in hearing from other countries is what processes they have made around that. We have not resolved this matter at the moment; that is the truth of it.

  139. What work is your Department doing to evaluate those different roles that the children's commissioner is playing in different countries? Where have you got to in terms of asking for work on that to be done?
  140. (Mr Denham) Certainly officials from the CYPU are in contact with the Commissioner's office in Wales, in touch with what is going on in Scotland and Northern Ireland. People have met with people from other countries that have children's commissioners. I myself have met with the Swedish Children's Minister and they have a children's commissioner in that country, so work is in hand to draw together the different strands.

  141. But is there a formal evaluation of all those children's commissioners and their roles taking place at the moment?
  142. (Mr Denham) Formal in the sense of producing a single document that assesses each one against it - I do not think there is a formal evaluation of that sort.

    (Ms Efunshile) Not formal in the sense of something which is systematically evaluating each of those models against a set of common criteria, but certainly we are, as the Minister has outlined, in touch with the other devolved administrations across the UK and with other parts of Europe as well. We have been meeting with officials at various fora and so we are picking up information and gaining feedback from those countries which we are then able to report back. Some of these models, the Welsh model that you have focused on, for example, are relatively new so the first year has been spent very much setting up an office and there is some time to be taken to establish actually what the difference in outcomes for children and young people might be and also what difference it would make if such a model were applied to this country given the difference in scale, for example, in terms of population.

  143. One of the things that we have found is that the Welsh Commissioner already has been able to say that there is a lot that the role can do. He has talked about complaints about public authorities and representing children's interests there, access to health and medical records, special needs education provision, suitability of foster placement. Indeed, in the recent Adoption Bill it would have been quite interesting to have had the voice of a commissioner for children on that Bill as well as the Government's view which may or may not have been different. That leads me to an observation that one of the young people that Baroness Whitaker referred to earlier made to us when we were in the Youth Parliament about possible conflicts of interest between your job as representing Minister for young People and your job within the Department. If I might just pick up four areas to test that on, you said, for example, about the area of reasonable chastisement, that when you talk to young people they are very interested in being the victims of crime; there is no question of that, but of course a child who is hit is a victim of crime; a child who is physically abused is a victim of crime; a child that is sexually abused is a victim of crime. I remember in the early days of setting up ChildLine there were the established charities which did not much want ChildLine around, not least because they thought they were doing the job, and yet ChildLine has now listened to a million children. Most of those are the victims of crime. I find myself listening to you when you say that this is what children are telling you about why they may not want intervention on the issue of reasonable chastisement or smacking, but actually what formal evidence are you gathering from bodies like ChildLine in your capacity as Minister for Young People to represent and gather what they are saying? It brings me back again to this question of here you have got all these bodies saying to you, "We need a children's commissioner for England", but you are in the difficult position of on the one hand representing young people but also being in a department that at the moment has a policy which says,"Wait and see".
  144. (Mr Denham) The first thing I need to stress is that we have not resolved the issue of whether or not there should be a children's commissioner and what sort it should be. I hope that the fact that I was able to sketch out a number of different models, which are only a few of those I have discussed with the officials from CYPU, will indicate that this is not, as some people might have suggested, an issue that the Government is not thinking about. It is not a resolved issue and we have not taken decisions on it. Secondly, if we take the issue of smacking, it is not a Home Office policy. The lead in this area is with the Department of Health; they lead the consultation. It is quite right that in my time as the Minister in this area we have not re-visited the consultation that the Government carried out in the year 2000 and I think it is reasonable to say that we cannot constantly be re-visiting every piece of policy all the time, although, as I indicated earlier, my reflection on the UN Committee response is to say that the Government has had a major consultation, which ChildLine and everybody else were able to participate in, and I will frankly have to look back at the history to see whether they did have a major consultation and took the decision. However, if you get aboard the UN Committee it makes you re-visit it and that is why I indicated that I have been looking at the extent to which our existing policies are aimed to reduce smacking. On the question of listening to young people, the point that I was making earlier is that that is precisely what we have been doing and I did not - and this is very important; I hope the record will show this - say that young people had no views on or were disinterested in smacking or those sorts of issues. I was talking about the priority which young people gave to crime issues in their own lives which tended to be issues much more about violence on the streets, their own safety in getting about. I am drawing there on some of the work we did as part of the overarching strategy for children and young people. I would not like to be characterised as saying there is only type of crime that is relevant to children. Is there a fundamental contradiction between having any departmental minister being a Minister for Children and Young People? I do not think that there is. I think that there are strengths in the arrangement. I think the strength is that if you have a departmental minister it is probably easier to exercise some weight in government with your colleagues than if you are a minister with a unit and a very small budget and no locus on anything. I think you can argue it both ways. I have always said this publicly. I t is the Prime Minister's decision; you can argue it both ways. I have never felt that my job as a Home Office Minister has led to a conflict of interest between if you like Home Office policy and my responsibilities as Minister for Children and Young People.

  145. I think the point that the children's charities were making here though was that it does not necessarily mean that if you have a children's commissioner you do not have a minister with responsibility for these areas in government. You do not have a choice between one or the other. It is a question of whether or not we benefit our children by not having an independent voice. The example that springs to mind is over bullying which is an issue which comes to ChildLine's attention a great deal. If you take Ofsted's position, for example, their inspectors are required to talk to people about their life in school and the work they are doing. It does not make any provision for systematic consultation on the issue of bullying. When it comes to bullying, for example, as Minister for Children, what systematic consultation have you conducted with children's charities about one of the biggest problems they perceive young people face in schools? What systematic consultation have you conducted in the last year and what recommendations have you made on the subject of bullying?
  146. (Mr Denham) I think it is quite important to be clear that I do not personally have the job of undertaking every single consultation that takes place with young people. Indeed, I think that would be the wrong thing to do. We are looking to the Department for Transport to consult with young people about transport issues, the DfES to consult with young people about education issues and so on. I actually think that if we hived it off to the Minister for Children and Young People to do consultations we would have less influence on departmental policy. What has happened though in the area of bullying is that the DfES have responded to these concerns by producing new guidance on bullying. Ofsted is now looking at ways in which it can build consultation with young people into its inspections in ways that have not happened in the past. That should I think strengthen in this particular area the policies but DfES's ongoing commitment as part of their signing up to the principles of participation and consultation last year should be in practice to keep these important issues constantly under review. The aim of having a commitment to participation is that departments are not all able to avoid these issues. That is what we are trying to achieve.

  147. But as Minister for Young People are you satisfied that enough is being done?
  148. (Mr Denham) If you look at the work on participation at the moment, it is at very early stages. It is not yet ingrained in every government department that affects young people that they should be consulting with young people on those issues. That is work that we started a year ago with the principles of participation. The Department only published their documents about how they were going to do it in the summer and again I have said publicly that it will be a period of some years, I think, before this becomes second nature to policy makers.

  149. I am speaking specifically about bullying and really what I am getting to here, Minister, is that you deal with a lot of issues and government departments are dealing with a lot of issues in relation to young people, but we already know from children's charities the scale of the problem of bullying. The children's charities have pointed out the shortcomings in this area. Are you satisfied, as Minister for Young People, that enough is being done in the areas that have already been identified as a problem of bullying in our schools?
  150. (Mr Denham) I think that a significant start has been made, but I do not think I could be satisfied because I do not think I have got evidence that bullying has stopped. I have got evidence that DfES have responded to the concerns of young people. I know that DfES's commitment to having an advisory group for young people, to have open sessions with young people at which they can raise issues about schools policy, will help to ensure that issues like bullying are very much kept on the agenda. We are trying to change this government machine so that it does actually listen to the young people whose lives are being affected, and I think you can point across government to areas like bullying where it is undoubtedly the case that the Government has responded to the concerns expressed directly by children as well as by children's charities, but there is some way to go yet before we can say that we have actually had any impact on the problem. The question then is: do we have the structures that enable us to make sure that does not drop off the agenda, that this was not just a one-off piece of guidance that somebody then shoved on the shelf and said, "We did bullying two years ago"? That is partly a matter of getting the participation structures right; it is obviously one of the issues that has to be addressed in looking at a potential Children's Commissioner.

  151. This brings me to my final question because, as you rightly say, it is around structures. We know, for example, if we take the Government's policy on the euro, that in principle it is committed. It just wants to see whether we pass the tests. There are a lot of children's charities out there who would welcome from the Government a view about the principle here, which is that they accept the principle that children need an independent commissioner. The children in England are no different from Wales. The Welsh have realised it, the Scots have realised it, they realised it in Northern Ireland, but for some reason in England we think we may have a different case because our children might be different. If we take what the NSPCC have said, never has there been a greater need for a children's commissioner. If we take what the somewhat well-known President of Barnardo's says, "Unless and until the UK Government recognises the whole concept of the rights of a child, it will remain rightly criticised as being only half-hearted about the rights of a child." That President recognised that a children's commissioner would begin very clearly to remedy the situation. I suppose really what I am saying is that all these children's charities, without exception, are saying, "Let us have the principle". You do have a point in saying, "How would it specifically work out?", but why not treat our children in England the same? Give them a Commissioner, say we need a time frame to work it out specifically, but what is the real benefit now of holding out on the principle?
  152. (Mr Denham) That is not the way that I have approached the problem. I know that there are numerous contesting expectations of what a children's commissioner will do that it would not be possible to fulfil all in one office. What I have been trying to do and, as I have indicated, I personally would like to draw it to some conclusion, is to look at different models and say, "Would this add value? Would this really make a difference? Is there the danger that people are loading all their expectations on to this one office and ignoring vital issues that we are pursuing in government about how we ensure that young people are listened to right across government?" We have not reached conclusions about that at the moment. I suppose as a politician I should have thought about approaching it this way, which is to announce that we are going to do it and then tell people five years later what it is going to look like. That is not the way I work. I think we have to say, how would it add value, would it add value, would it make a difference to young people's eyes in this country? That surely has to be the test that we apply. I am slightly worried that it is almost becoming the universal answer to every problem and that could be a danger if it does not enable us to change the way government itself operates.

    Lord Lester of Herne Hill

  153. Minister, without prolonging this discussion between yourself and Mr Woodward unduly, could I ask you a short question? I understand exactly what you are telling us about the different expectations and how they cannot all be satisfied, but could you summarise very briefly for us what is the case against having a children's rights commissioner of any kind rather than a particular kind? That I do not understand so far.
  154. (Mr Denham) The argument against having a children's commissioner would be that its role was confused, that it did not add value, it did not have the resources to match up to the expectations and that it was able to deal with such a small part of the problem that it was not helping to achieve change but it enabled a number of other people to feel that they did not have to match up to their responsibilities. That would be the potential danger. If you created an ineffective body clearly it might not help the work that I am trying to push through which is a change in the way the machinery of government itself works and the respect they have for the views of young people. That would be an argument against it.

  155. But you would not make that argument against the Equal Opportunities Commission or the Commission for Racial Equality or the Disability Rights Commission, all of which make a real difference, do they not?
  156. (Mr Denham) They do, and they are backing up an area of very specific legislation in each of those spheres and derive their authority from specific legislation. It is not the area that we have taken in children's rights. We had the earlier discussion about the suitability or otherwise of the Convention as a legal basis for their activity.

    Baroness Whitaker

  157. There is one issue I would like to press you on as an example of your approach. Romany children, our oldest native minority, are always at the bottom of the list. There is no shortage of their being included. For example, there is an education policy for Romany children, there is a health policy, but year after year there they are at the bottom of the list. I think in Northern Ireland travelling children under the age of ten are ten times more likely to die than children from the settled population and I think that figure has hardly improved over more than a decade. Would they not do better if they had an independent voice just to push the issue higher up the agenda so that measures that were taken were actually effective? You yourself referred to outcomes.
  158. (Mr Denham) Yes. It is possible but not certain because government already responds to pressure to deal with the needs of particular groups of vulnerable young people, for example, the Social Exclusion Unit at the moment is close to finalising a report on young runaways and improving the services to prevent persistent running away of very young people and the dangers that come with that. There is ample evidence that government does respond.

  159. In this one case though.
  160. (Mr Denham) The point that I am making is that government does respond to cases made by pressure groups, by NGOs, by reports and evidence that are being put forward. That would be true in the area of child prostitution, it is certainly true in the area of young runaways and has been in the past true in the area of Romany children or travellers' children. One of my concerns is that the belief that simply the creation of an independent voice would automatically lead to policy changing or being better in certain areas when it is quite clear that the Government does take up already issues raised by a whole variety of NGOs, albeit there is not a children's commissioner as such. One of the arguments which you have to assess is, would such a post make a material difference to the quality of what government does? I accept entirely that that is the argument but I just do not take it as the automatic given that everybody is saying it is at the moment, but we have not resolved our position on this.

    Chairman

  161. Minister, we are aware of the Government's reservation on Article 22 with regard to the rights of asylum seeking children. Do you think you can give the Committee an example of how the withdrawal of the reservation would de-mystify our asylum system?
  162. (Mr Denham) The feeling in layman's terms rather than legal terms is that if we did not have the reservation and were the Convention to be given perhaps greater weight in law or in court judgments than it has been given so far in the court cases you could end up with a position where an unaccompanied young asylum seeker who gets to this country is able to say under the Convention, "You should not be able to apply any asylum legislation to me because you are looking at me as a child under the Convention", and, further than that, because of the rights of the Convention for a child to be re-united with its parents their parents would also have the right to come to this country. The difficulty is to see how that would be compatible with running any type of asylum or immigration system at all. It is for the reason of the concern that at some point in the future the Convention could be interpreted that way that the Government has entered its reservation and has re-considered it within the last year and decided that the reservation should still stand.

  163. Some of my colleagues have made reference to questions that were referred to us by the Youth Parliament. Some of them have been put to you. One of them I thought was very interesting which was the question of what measures are in place to provide independent advice for young people if their rights have been breached?

(Mr Denham) In terms of the Convention itself I would suspect at the moment that outside a number of quite specialist NGOs there are probably very few local sources of Convention rights advice; that would be my guess. I think it would be recognised as good practice in many areas, and certainly it is the case in my own city of Southampton, of quite a well developed network of informal drop-in based advice to young people about their legal, social and welfare rights, and I commend those organisations. I think that agencies that are able to deal with the whole range of issues that young people might bring to them about personal relationships, about jobs, about education, about benefits, family matters or whatever, in the round are probably providing the service that young people would primarily need rather than a service was very narrowly based on the UN Convention.

Chairman: Minister, thank you very much for appearing before us and for dealing so comprehensively and directly with the questions that the Committee has put to you. Thank you for coming to help us on these issues.