Children and Families Bill

Debate between Baroness Lister of Burtersett and Viscount Eccles

Monday 18th November 2013 Grand Committee

[Baroness Lister of Burtersett]

My Lords, I will speak to Amendment 252 in a group of amendments that are largely designed to strengthen the role of the Office of the Children’s Commissioner for England. Like the noble Baroness, Lady Walmsley, whom I thank for her support on this amendment, my starting point is to applaud the ways in which the Bill already strengthens the role of the Children’s Commissioner, in particular through the incorporation of an explicit children’s rights-based remit. I therefore have to part company with the noble Viscount, Lord Eccles, on that—although I very much agree with him on his point about resources.

[Viscount Eccles]

Nothing in the 2004 Act would prevent the commissioner saying anything that she wants to say, or investigating anything that she wants to investigate, in the area of rights. My point about it being stated in the Bill is that it is a move towards creating another national human rights institution. The question to the Government is: is that what they are going to do? If they are not, there is nothing wrong with the 2004 Act.

[Baroness Lister of Burtersett]

But because it was not an explicitly children’s rights-based institution, it did not have the status internationally that other children’s commissioners have. So this is a step forward and I am glad to be able to support the Government. In fact, I was one of those who criticised my own Government for failing to write in an explicit children’s rights-based remit.

The Joint Committee on Human Rights, of which I am a member, welcomed the reforms as,

“constituting a significant human rights enhancing measure”.

However, we believe that the reforms do not go quite far enough and therefore proposed this amendment. The intention is that the Bill should expressly define the rights of children in England to include the rights in the UN Convention on the Rights of the Child for the purposes of defining the commissioner’s primary function. At present, the Bill simply requires the commissioner to “have regard” to these rights. I am sure noble Lords will agree that that is a much weaker formulation.

The recommendation that the commissioner’s primary purpose should be defined explicitly with reference to the UN convention should not be construed as just the icing on the cake, for it is about the ingredients of the cake itself. This was recognised in the Dunford report commissioned by the incoming coalition Government. It recommended that the new role of the Children’s Commissioner should include,

“promoting and protecting the rights of children under the UNCRC”,

so I am afraid that the Minister was not totally accurate when he said that the Government had taken on board all the recommendations of the Dunford report.

The UNICEF global study of independent human rights institutions for children underlined that:

“There is one non-negotiable attribute of all independent human rights institutions for children: a mandate rooted in the Convention on the Rights of the Child”.

However, the JCHR’s “negotiations” or dialogue with the Government on just such a mandate came to naught and the Bill retains this weak requirement simply to have regard to the convention. The Government’s original objection that the UNCRC has not been directly incorporated into UK law was met by our carefully worded amendment, which does not imply incorporation, as the Government now acknowledge. They then fell back on two arguments. The first was that,

“the UNCRC contains a broad mix of rights and aspirations, rather than a more classic formulation of rights such as those in the ECHR”.

Secondly, they argued that some UNCRC articles are broader than children’s rights as such and include, for example, parents’ rights or the state’s responsibility to create an environment in which children’s rights can be realised.

The committee was not persuaded by those arguments and responded:

“It is a matter of common consensus that the UNCRC contains some very important children’s rights. The fact that some of its provisions are couched in aspirational terms, or impose responsibilities and obligations on the State, does not detract from this fact”.

Indeed, these aspects of the convention are surely true of human rights treaties generally and have not deterred other states from incorporating the full convention into domestic law. In any event, the amendment is carefully worded with this possible objection in mind: it defines the rights of children to include, not the UNCRC itself, but “the rights in” the UNCRC.

As Carolyne Willow, a long-standing children’s rights expert, has argued, the suggestion that the reference to parents,

“somehow diminishes children’s rights, is muddled. Article 18(2) of the treaty sets out the basis for states supporting parents—in order to guarantee and promote the rights of children. This is no different from recognising and assisting carers in order to uphold the rights of disabled people, or guaranteeing support to adoptive parents as a means of securing the child’s right to a family life”.

The JCHR believes that the Children’s Commissioner,

“should be entrusted to interpret the UNCRC and to take a sensible and properly advised approach about the children’s rights that it protects”.

The Government’s refusal to accept our recommendation suggests that they do not trust the commissioner to do so. The arguments put up by the Government are weak and leave me puzzled as to why they are so resistant to embedding the commissioner’s welcome children’s rights-based remit in what the Alliance for Reform of the Children’s Commissioner describes as, “the authoritative international legal statute for children’s human rights”. I hope that the Minister will take this away and think again.