Children and Families Bill

Baroness Lister of Burtersett Excerpts

Monday 18th November 2013 Grand Committee

[Baroness Howe of Idlicote (CB)]

My Lords, I support Amendment 243 because it throws into the ring just how absurd this situation is.

Alas, we all know that this sort of action and reaction exists in this country. Female genital mutilation is exactly the same thing; it is happening, it has been happening. We turn a blind eye. We do not want to offend certain organisations and people. We are all against it, of course. The very first Minister I heard who actually understood what was going on completely denounced it, but even that led to no action being taken—you see what we are facing.

What we have heard today should make us stand up and decide in favour of some real action. The amendment has put us on the spot: we should have done so. It certainly should put the Government on the spot, if I may say so, because it is now time for some much more positive action in this respect—and I hope that they will rise to the challenge.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak very briefly in support of Amendment 246.

I cannot see any justification for excluding part-time educational institutions. Corporal punishment is corporal punishment; the impact on the child is the same, whether it takes place in a full-time or a part-time educational institution. Therefore, I hope the Minister will support the amendment—or, if not, will explain why.

[Lord Storey (LD)]

I will speak to Amendment 246, which I have also put my name to, and I thank my noble friend Baroness Walmsley for the detailed way in which she spoke to the amendment.

We were probably all watching Children in Need on Saturday. We saw young children in all sorts of situations. The idea that you respond to children who misbehave with corporal punishment beggars belief. I was teaching— in 1987, I think it was—when corporal punishment in schools was abolished. There were all sorts of dire warnings about what would happen. In fact, nothing happened. It made schools focus on proper child behaviour approaches.

I did not know, at that time, that the 1987 legislation did not include part-time institutions. I think that beggars belief. Any hitting of children, any corporal punishment, is child abuse. There is no other way to describe it. Like the noble Baroness, I would be interested to know, when the Minister replies, why we cannot take that next step, to make sure that corporal punishment is banned, outlawed, not allowed, in any establishment, whether part-time or otherwise.

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[Baroness Massey of Darwen]

My Lords, in moving Amendment 245, I will speak to Amendments 257 and 260 in this group and kick off what I think will be a useful discussion on the new arrangements for the Children’s Commissioner for England. I am sure that the amendments in the names of my noble friends Lady Hughes and Lady Jones and of other noble Lords will give rise to a pithy debate on this important issue.

The reforms to the role of the Children’s Commissioner for England have been welcomed by the Alliance for Reform of the Children’s Commissioner, which includes a number of significant children’s organisations. I am grateful to the department for the helpful note that we received on the Children’s Commissioner last week. I am not sure that it resolves all the issues, but hopefully we will have a useful discussion that will enable us to think through more of those issues.

As many noble Lords know, it was something of a struggle to get the then Government to agree to England having a Children’s Commissioner. Some people in this Room were instrumental in lobbying for the appointment and then contributed to the review of the Office of the Children’s Commissioner carried out by John Dunford in 2010. The review culminated in his report and recommendations, published in November of that year. One key recommendation—perhaps the key recommendation—was that there should be a focus on children’s rights in the work of the Children’s Commissioner. As a result, the new commissioner will take over the joint responsibilities of the Children’s Rights Director and the Children’s Commissioner.

The Bill can strengthen children’s rights generally. We have had, and will have in the future, debates on children’s rights in a variety of contexts. The Bill should reflect the Written Ministerial Statement of 6 December 2010, which made the commitment that the Government would give “due consideration” to the Convention on the Rights of the Child when proposing new law and policy. We still have a way to go with that. Many of John Dunford’s recommendations cannot be implemented without looking beyond the role, function and powers of the Children’s Commissioner and placing duties on public authorities and on Ministers. We will discuss that in later amendments.

The Children’s Commissioner will be a key force in safeguarding the rights and welfare of children and it is important that we get it right. There are three main issues: the appointment of the commissioner; the independence of the commissioner; and the promotion of children’s rights. The appointment of the Children’s Commissioner must be open, transparent and non-political in order for the commissioner to be sufficiently independent to champion children’s rights and to have credibility. The Children’s Commissioner is appointed by the Secretary of State but, as I understand it, is listed in the code of practice of the Commissioner for Public Appointments, so Parliament is involved in a pre-hearing process. However, the UN accreditation committee recommends that the involvement of Parliaments is provided for on the face of legislation rather than just being a political commitment. In Scotland and the Republic of Ireland, it is the national Parliament that appoints the commissioner. The degree of independence is critical in determining the success of this role. The new commissioner must be under as few constraints as possible in determining his or her activities, timetables and priorities. My amendments would see a clear legislative statement on such independence, which would bind future Governments.

In another place, MPs considered an amendment to require the Secretary of State not to interfere with the work of the Children’s Commissioner. The Government responded that the legislation already repeals provisions that currently allow the Secretary of State to direct the commissioner’s work, but that does not go as far as an explicit prohibition on interference. The Minister in another place cited the Equality and Human Rights Commission as an example of a body that is able to act independently. The legislation that set up the EHRC has similar provisions to those in my amendment. I welcome assurances that the Government will not interfere with decisions on priorities for the work of the commissioner, but such an assurance does not bind future Governments as a clear legislative statement would. The UN Committee on the Rights of the Child has made it clear that national human rights institutions for children should meet these standards.

The Minister may respond that the commissioner will have full membership of the European Network of Ombudspeople for Children. This is welcome, but it is not enough. The Children’s Commissioner should satisfy the Paris principles to the standard that the Children’s Commissioner should have the status of a national human rights institution.

Amendment 257 sets out criteria for the appointment of the Children’s Commissioner for England, stating that he or she must have adequate knowledge and experience in all matters regarding children, must involve children in decision-making and must be able to act independently of government. I am aware that this issue was discussed in another place and that the Minister stated that it would be desirable to draft the person specification at the time of appointment. That is fine so far as it goes, but setting out in legislation some objective minimum standards would be preferable to ensure that the person has the right skills and experience.

In another place, an amendment required the Secretary of State to have regard to the views of Parliament and others in appointing the Children’s Commissioner. The Minister circulated a note to the Public Bill Committee that set out how the appointment process would work. The Government indicated that it would not be convention to set out in legislation that Parliament should consider a particular matter. Amendment 260 would place a duty on the Secretary of State to have due regard to the views of any parliamentary committee that has published a view on a proposed appointment or removal from office of a Children’s Commissioner.

All these amendments would support the important principle that the Children’s Commissioner must be independent of government and must be well experienced in matters regarding the rights of the child. Who will be on the panel that interviews candidates and what are likely to be the selection criteria? I am not looking for an answer now, but I am interested. We in this House and children’s organisations will be watching the process with interest and concern. I beg to move.

[Baroness Lister of Burtersett]

My Lords, I rise to speak to Amendment 262, which has my name on it. I am speaking on behalf of the noble Lord, Lord Lester of Herne Hill, who is very sorry that he is unable to be here.

I want to make a point about independence in support, in particular, of my noble friend’s Amendment 245. At Second Reading, many noble Lords raised concerns about the Office of the Children’s Commissioner for England receiving sufficient funding from government to carry out its functions effectively. The Minister subsequently wrote to noble Lords acknowledging the need for sufficient resources to give effect to the reformed office’s work. He went on to say that decisions involving funding will always need to be taken in the context of the prevailing economic circumstances and competing priorities for public funding. That is understood but, whatever the economic circumstances, such decisions must not compromise the independence of the commissioner that my noble friend talked about or his ability effectively to carry out his work.

Legislation should therefore set out appropriate safeguards, such as those contained in Amendment 262. There is a danger that, unless properly resourced, the changes proposed in the draft legislation will raise expectations about the commissioner’s potential impact that the office simply cannot meet. The adequacy of the budget will determine whether the commissioner is able effectively to promote and protect children’s rights. According to the UN Committee on the Rights of the Child, it is the duty of states to make reasonable financial provision for the operation of national human rights institutions in the light of Article 4 of the convention. The mandating powers of national institutions may be meaningless or the exercise of their powers limited if the national institution does not have the means to operate effectively to discharge its powers. The Paris principles, mentioned by my noble friend, also underline the importance of ensuring that national human rights institutions have access to adequate resources. They state:

“The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding … in order to be independent of the Government and not be subject to financial control which might affect its independence”.

The Dunford review drew attention to the fact that the Children’s Commissioner had a low budget compared to children’s national human rights institutions in other jurisdictions. At the time of the review, this country was spending 24p per child on the Children’s Commissioner compared to, for example, £1.89 in Ireland —hardly a richer country than this one—£1.27 in New Zealand and £3.74 in Northern Ireland. UNICEF undertook a global study of independent human rights institutions for children. It underlined that independence is the defining feature of such institutions and that sufficient and sustained financial resources are key to that independence.

On the issue of independence, I wish to raise another matter, which has been of concern to the Joint Committee on Human Rights, of which I am a member. In its report on the draft clauses preceding the Bill, the JCHR accepted the need for financial control of and public accountability for the public money spent by the Children’s Commissioner but was concerned about whether the degree of financial control exerted by the Government through the standard NDPB framework agreement was compatible with the requirement in the Paris principles that national human rights institutions should not be subject to financial control that might affect their independence. It therefore called, in December 2012, for the proposed new framework agreement between the OCC and DfE to be made available in draft as soon as possible so that it could be scrutinised for compatibility with the Paris principles requirement of effective independence from executive control.

The Government in their response promised to review the framework agreement in light of the committee’s comments and to make a copy of the revised document available for scrutiny. No new framework agreement had been published by the time the Bill was introduced, however. In the JCHR’s report on the Bill in June this year, it recommended that all the changes that had been made to the framework agreement between the Equality and Human Rights Commission and DCMS in order to safeguard the EHRC’s accreditation as an “A” status national human rights institution should also be made to the Children’s Commissioner’s framework agreement and it again asked for the revised framework agreement to be made available for scrutiny before the Bill reached Committee in the Lords.

With Committee stage fast approaching, but still no revised framework agreement published, the JCHR wrote again to the Minister on 30 October, asking the Government to make every effort to arrive at a revised agreement with the Children’s Commissioner and to make it available to Parliament before today’s debate on the proposed amendments to the Bill concerning the commissioner’s independence. Notwithstanding that request—or requests, in the plural—the Government have still not published a revised agreement. Towards the end of last week, they published and circulated a note summarising the main changes that will need to be made to the framework agreement when the Bill comes into force. These include a number of exemptions from efficiency controls that have been made in the EHRC’s revised framework agreement, which the Government say that they will “seek to replicate” in the Children’s Commissioner’s framework agreement.

The Government’s stated willingness to replicate the changes made to the EHRC’s framework agreement is welcome, but it is most regrettable that the revised agreement itself is still not available. As so often, the devil is in the detail. It will not be possible for Parliament to be sure that the framework agreement is compatible with the Paris principles until it has seen the text. It is not clear, for example, how the requirement of government approval of the commissioner’s marketing and advertising plan is compatible with independence when, as I understand it, efficiency controls, which must be satisfied for the plan to be approved, require such expenditure to be essential for the Government’s objectives, not the commissioner’s.

The same issue was resolved with the EHRC. I hope that it can be so with the Office of the Children’s Commissioner. Will the Minister give noble Lords his reassurance that he will discuss the detail of the framework agreement with the Office of the Children’s Commissioner as soon as possible and make a draft of the revised agreement available before Report, so that noble Lords can be satisfied on this crucial question of independence from inappropriate executive control?

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We will discuss in detail in the next group of amendments the point made by the noble Baroness, Lady Howe, and the noble and learned Baroness, Lady Butler-Sloss, on the active involvement of children in decision-making. I am glad that the noble Baroness, Lady Lister, found the note on our intentions in revising a framework agreement helpful. I am pleased that she has put on record our commitment to replicate specific provisions that have been agreed in respect of the Equalities and Human Rights Commission. I can give an assurance that Parliament will be invited to comment on the revised draft agreement at the appropriate time. We will liaise with the commission in producing a new version and will provide an update on Report.

[Baroness Lister of Burtersett]

I am sorry to interrupt but perhaps the Minister can say what he considers to be the appropriate time. I suggest that it is before Report.

[Lord Nash]

We will provide an update on Report but the appropriate time is after Royal Assent.

[Baroness Lister of Burtersett]

I am sorry but the point is that the devil is in the detail, as I said, and Report, or possibly Third Reading, would be the last opportunity for parliamentarians to comment in a way that might affect the outcome. After Royal Assent seems rather late.

[Lord Nash]

We will take this away and consider it further. As regards the point made by the noble Baroness, Lady Hughes, on accountability and to whom it should be, our view is that the commissioner should be wholly independent as regards his or her views and priorities from both government and Parliament. However, I accept that Parliament should be able to scrutinise what the commissioner does and have an opportunity to debate issues that he has raised.

I hope that my responses on these important points provide assurances to noble Lords and I urge the noble Baroness to withdraw her amendment.

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I am well aware that a well qualified Children’s Commissioner will be perfectly capable of identifying which groups of children should be regarded as vulnerable. However, if in future anyone should question whether a commissioner should give advice or assistance to trafficked children or those in custody, it would certainly make the matter very clear if my amendment were to be incorporated in the Bill—or if I get a clear statement from the Minister. Alternatively, perhaps my noble friend can explain that all the children covered by Amendment 256 are included in the duties and powers of the reformed OCCE.

[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.

[Baroness Massey of Darwen]

My Lords, in this varied and lengthy group, I want to focus on Amendment 266A, although I support others to which my name is attached. The amendment states:

“Any person whose functions are of a public nature must in the exercise of his or her functions … respect, protect and fulfil children’s rights; and … seek … the views of children in matters affecting them”.

Here, it harks back to the Children’s Commissioner not having sole responsibility for children’s rights. Others have expressed powerful convictions that all children have rights, even though the rights of vulnerable children—for example, asylum seekers, trafficked children or those in custody—are sometimes neglected. What really concerns me here is that we seem to fail to grasp the issue of listening to children and seeking their contribution to improving systems which should work for them. I cannot understand why. Involving children in these matters which affect them has at least two functions: it not only helps children feel engaged and more likely to respond positively but helps make systems and structures better. It makes for better decisions about children. As I have said before, we have become better at listening to children and young people, but it is inconsistent. The noble Lord, Lord Ramsbotham, will know the answer to this much better than I do, but I wonder how much young people in custody are consulted. From all I hear, not very much.

Concern for child rights and consultation with children work in practice. I mentioned earlier the Every Child Matters report. Schools were at the centre of that and I want to give an example of how schools can improve school life and achievement by listening to, respecting and valuing the contribution of children. UNICEF’s Rights Respecting Schools programme is a resounding success according to an independent evaluation. It encourages child-driven polices on behaviour and school activities. At its heart are school councils and classroom discussions on rights and responsibilities.

It seems to me that any organisational system functions better if those within the system are consulted and involved. Children are totally capable of having a view about what is best for them, and many organisations—not only schools but children’s services, health services and youth clubs—do consult children and are the better for it. The state has an opportunity to task other bodies with the job of promoting and protecting children’s rights. A duty on public authorities to give due regard to children’s rights in their decision-making would ensure that all areas of government are aware of their obligations towards children.