43. Memorandum from the Children's
Rights Commissioner for London
This letter is a personal submission to the
inquiry into the desirability of establishing a Human Rights Commission
in the UK.
The Office of which I am Director is a model
children's rights commissioner, established by a consortium of
children's groups and supported by the National Lotteries Charities
Board, Calouste Gulbenkian and Bridge Houses Estate Fund, the
NSPCC, Save the Children UK and The Children's Society. We are
working with the Greater London Authority to develop the first
Children's Strategy, which is to implement the Mayor's policy:
London should be a child-friendly city.
The Greater London Authority is committed to
respect for the human rights of children. The UN Convention on
the Rights of the Child recognises children's fundamental rights
to the provision of the necessities of a decent life; protection
from all forms of violence and exploitation, neglect and cruel
or inhuman treatment; and participation in the decisions
that affect them and in the life of their community.
The policy framework underlying the Children's
Strategy is the UN Convention on the Rights of the Child.
In developing its strategies the GLA will:
Consider children's rights and how
its decisions may affect them.
Make sure that children participate
fully in strategic decision-making.
Make itself accountable to children
as well as citizens of voting age, and
Promote positive and challenge negative
attitudes to children.
Our aim is to model what a Children's Rights
Commissioner would do by working with the new regional government
for London while consulting with children, promoting their participation
in government, monitoring government's implementation of UNCRC
and developing effective government institutions for children.
Our aim, at the end of three years, is a demonstration that a
children's rights model results in better government, and a better
life for children. We believe all the children in the UK are entitled
to an independent children's rights champion, a Children's Rights
I am a senior lawyer and the Director of this
Office. I am an expert in the human rights regime in Australia,
both in my professional capacity (including Chairman of the International
Commission of Jurists) and working with government and industry
in the discrimination and management area in one of Australia's
largest law firms, and also as a statutory office-holder.
I have worked closely with two of Australia's
Human Rights Commissioners, Brian Burdekin and later Chris Sidoti,
and the President of the Human Rights and Equal Opportunity Commission,
Sir Ronald Wilson. I was also responsible, from 1990-94, for the
administration of both state and federal anti-discrimination laws
in the Australian State of Victoria, as its Commissioner for Equal
Opportunity: these laws partially implemented Australia's international
human rights obligations (ie not limited to sex discrimination).
All Australian states and territories have passed
Acts prohibiting discrimination in areas of public life on a wide
range of grounds including sex, race, disability or impairment,
political and religious belief and activity, age, (in most states)
sexual orientation or lawful sexual activity, and several other
grounds, including victimisation (discriminatory advertising and
racial vilification is, in some states, a criminal offence). This
anti discrimination regime is typically administered by a single
"equal opportunity" or anti discrimination Commission,
Commissioner or Board.
The federal government has also established
a Human Rights and Equal Opportunity Commission responsible for
monitoring Australia's compliance with a number of international
obligations including CEDAW, CEARD and ILO Convention 111 and
UNCRC, and to promote understanding and handle complaints of discrimination
under domestic laws implementing some of Australia's international
obligation: specifically, sex, race and disability discrimination.
With a number of different jurisdictions and
limited resources it was necessary for state and federal bodies
to collaborate on, at least, complaint handling and in my own
case, public education campaigns too.
While I was the Commissioner for Equal Opportunity
for Victoria, I was also the delegate of the federal Sex Discrimination
Commissioner, Race Discrimination Commissioner and Disability
Discrimination Commissioner (she in fact worked from my office
for two years). I received and sought to resolve those complaints
and forwarded them to HREOC when they could not be resolved, for
hearing by federal Hearings Commissioners. The federal government
funded my office for this work. The state government provided
the core funding. These arrangements worked well for my tenure.
The shared responsibility led to creative activities.
This shared responsibility was also a very useful
way of focusing attention at a state level on Australia's international
human rights obligations, which otherwise tend to be overlooked
in favour of parochial considerations. It also grounded what might
otherwise have become an aloof or elitist and resented national
body (Australian political sensitivities are historically sharp).
The fact that the administrative costs were shared was useful
for focusing both levels of government attention on discrimination
as a cost to them. It enabled the states to develop their own
legislative responses to a national responsibility.
After I left office as Victoria's Commissioner
for Equal Opportunity, I was appointed a hearings Commissioner
of the Australian Human Rights and Equal Opportunity Commission
(1994-1997). This required me to hear and determine complaints
of discrimination in a quasi-judicial process, and to give procedural
directions and chair conciliation meetings where appropriate.
I write in support of the UK establishing a
Human Rights Commission.
I believe that the Australian model might be
a useful model for further study. As a federation with divided
legislative and administrative responsibilities it is very hard
to have an overview of human rights standards across the nation.
HREOC did and does provide that overview. The collaboration of
"distinct" and autonomous commissioners in a collegiate
administration struck sparks and has most certainly contributed
to a human rights culture in Australia: perhaps it is a measure
of its success that the present administration appears anxious
to remove much of its independence and effectiveness, and that
the Senate (the upper house) has not permitted this to occur.
The UK already has separate commissions dealing
with racial equality, equal opportunities and disability discrimination.
Each would resist, and rightly so, incorporation within a generalist
body. In my present role as Director of a "model" for
statutory children's rights commissioners, I also consider that
it is essential for very marginalised groups to have a distinct
"commissioner". A children's commissioner limited to
advocacy of the rights of children in residential care, or within
a larger organisation devoted to adult interests, or without the
power to speak out on matters affecting all children's rights,
is not a "real" commissioner at all.
However I believe that it may be possible to
protect the rights of the very vulnerable in a statutory regime
which vests very considerable autonomous powers to the office-holder,
while achieving cost effectiveness with a shared administration
and investigation/support service: a children's rights commissioner
responsible for enabling legislation, complaint-handling, conduct
of investigations and public education, with a fenced-off budget,
sharing administrative services within a universal human rights
The key is the enabling legislation, and a commissioner's
personal responsibility and control over budget negotiations and
expenditure for her or his unique work.
The Australian Human Rights and Equal Opportunity
Commission has commissioners for Sex, Race, Disability, Aboriginal
and Torres Strait Islander Social Justice and Human Rights (and
for some time Privacy). Each is responsible for their own sphere
of activity and their own legislation and reports separately publicly
and to the Parliament. There is a single administration under
a Chief Executive responsible to the commission as a body. Complaints
of discrimination are received by the corporate body and investigated
and resolution attempted by staff employed by the one body. Unresolved
complaints of discrimination are now referred direct to the Federal
Court (or the Federal Magistracy) for determination. However policy
is developed separately under the direction of the relevant commissioners.
The UK requires a body to educate the public,
the professions, and administration at every level of their responsibilities
to mainstream what are presently optional activities and plans
to meet the UK's human rights obligations: to develop a "rights-sensitive"
This does not just happen with the enactment
of a legislative regime. It requires public education on an on-going
basis. It requires guidelines, seminars, training and materials.
It requires opinion leaders who are not seen as special pleaders
for particular interest groups, but as spokespeople for the human
rights of particularly disadvantaged persons, within a universal
framework of equal respect for human dignity. The main problem
with the UK's present arrangements is that disability, women and
race are all seen as "special" and indeed competing
for "sympathy" or attention. The obligation not to discriminate
and to include and take account of those who have been oppressed
or overlooked needs to be seen as a human rights imperative, not
a remedy for piqued individuals or "special" claims.
The UK's human rights obligations are universal, and require universal
The most important power that I had, and HREOC
Commissioner had, was the power to hold public investigations
into serious, systemic abuse of rights of vulnerable people who
could not be expected to make a complaint: homeless children (1989),
discrimination against women prisoners held in "male-only"
designed prisons; into the experiences of the "stolen generation"
of indigenous children (1997); the treatment of refugees and asylum-seekers
in detention (1998), sterilisation of intellectually disabled
young women (1998) to name just a few. These focused public attention
on real human rights issues and helped shape government responses.
It was important, since they were often critical, that they were
supported by the Commission and by the public.
It was also important to have the right to litigate
to protect the interests of particularly vulnerable people for
whom no other redress was possible. Commissioners should be able
to intervene as amicus curiae on issues relating to public policy
in their areas of responsibility.
It is important that the Commissioners should
be able to facilitate the making and resolution of individual
complaintsconciliation is a suitable remedyand where
a trend or major issue is perceived, take steps to address that
as a matter of public policy.
There must be a power to conduct investigations;
to require people to provide information; to punish those who
deliberately obstruct its work, and to heighten awareness of issues
within their remits. It would be very useful indeed for the Commission
to have the power to make interim orders restraining apparently
discriminatory behaviour pending an investigation and determination
of the need for such intervention. "Interim orders"
under the Australian Disability Discrimination Act 1992, in 1994,
made corporations that had deemed it cheaper to pursue deliberately
discriminatory programmes than to comply with mandated statutory
regimes on cost grounds, reconsider. The human rights regime in
Australia is richer for it.
I believe co-operative arrangements could be
developed with the devolved bodies in Wales, Scotland and Northern
Ireland but I do not have the time to elaborate on how that might
be worked out. It is very important indeed that there be a national
overview, but that local experience and responsibility underpin
It is crucial that the UK Human Rights Commission
have powerful autonomous commissioners responsible for promoting
effective government that protects and promotes not only the rights
of women, racial, ethnic and faith minority groups and people
with disabilities, but also the rights of all children. This has
been recommended so often over the last ten years that the failure
to adopt these recommendations appears perverse.
I would be happy to elaborate on these views
at any time.
London Children's Rights Commissioner
30 June 2001