Duty to have due regard to United Nations Convention on the Rights of the Child

Children and Social Work Bill [Lords] – in a Public Bill Committee at 12:00 am on 12 January 2017.

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‘(1) A public authority must, in the exercise of its functions relating to safeguarding and the welfare of children, have due regard to the UN Convention on the Rights of the Child.

(2) For the purposes of this section—

(a) “public authority” has the same meaning as in section 6 of the Human Rights Act 1998, and

(b) “United Nations Convention on the Rights of the Child” has the same meaning as in section 2A(2) of the Children Act 2004.’—

Brought up, and read the First time.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families) 11:30, 12 January 2017

I beg to move, That the clause be read a Second time.

It is a pleasure to serve again under your chairship, Mrs Main. The new clause would place a duty on all public authorities to have due regard to the United Nations convention on the rights of the child when exercising all their functions. It would require public authorities to determine the impact of local service provision and decision making on the rights of children, and would provide a framework for public service delivery in relation to children.

Just last year, the UN Committee on the Rights of the Child, in response to the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, urged the UK to introduce a “statutory obligation” to consider children’s needs

“when developing laws and policies affecting children,” because at present the Government have failed to give due consideration to the UNCRC when developing legislation. The UN committee found numerous examples of where children’s views were not systematically heard in policy making or by professionals, and where there was a lack of a statutory obligation systematically to conduct children’s rights impact assessments. It is little wonder, then, that we have ended up in a situation in which just under 4 million children in the UK live in poverty, or in which in England there are more than 70,000 homeless children, many of whom live in squalid temporary accommodation, or that we have seen reports of our children being among the most unhappy in the world.

The UK ratified the treaty in 1991, but has never gone so far as to enshrine it in domestic law. Instead, it has taken a sector-by-sector approach to implementing the convention. The UN committee has rightly said that the Government must do more. It has called on them to expedite

“bringing…domestic legislation, at the national and devolved levels…in line with the Convention in order to ensure that the principles and provisions of the Convention are directly applicable and justiciable under domestic law.”

Incorporation through a duty on public authorities should enable the provisions of the convention on the rights of the child to be directly invoked before the courts, and ensure that it will prevail where there is a conflict with domestic legislation or common practice.

This approach also has the approval of the Joint Committee on Human Rights, which says that it would like the convention to be incorporated in UK law in the same way as the European convention on human rights has been incorporated by means of the Human Rights Act 1998—an Act that is under threat from this Government.

It is staggering that in Wales and Scotland a totally opposite approach has been taken. Instead of taking away children’s rights, Wales and Scotland have built on them, giving some statutory recognition to the convention. In Wales, Ministers are under a duty to consider or give due regard to children’s rights; and in Scotland, public authorities are required to report on steps that they have taken to secure children’s rights. It is clear that we lag behind our neighbours when it comes to legislative protections for children’s rights. It is wrong that they are becoming a postcode lottery. They should be offered universally, and we should be leading the way.

This topic was fastidiously debated in the other place at every stage of the Bill’s passage. The debates highlighted topics ranging from legal aid to deprivation of family environment to having a child’s best interests as the primary consideration. The topics covered every single right open to our children, and the Hansard transcripts show why that is so important. Although the Lords amendment was ultimately withdrawn after a commitment from Lord Nash to consider what further steps could be taken to embed consideration of children’s rights, UNICEF, the Children’s Rights Alliance for England and Labour Members feel that that falls far short of a robust and systematic approach to implementing the CRC.

The Minister will be aware that in 2010 a ministerial commitment was given that due consideration would be given to the UNCRC in all new legislation, that Cabinet Office guidance has been rolled out, and that recently the Department for Education’s permanent secretary has written to all other permanent secretaries regarding their obligations to the CRC. Last October, the Minister himself laid a statement urging all Departments simply to reflect on the committee’s concerns. However, the reality remains that a recent report by the Children’s Rights Alliance for England showed that only two of all the Government Departments were able to show how the UNCRC had developed policy or decision making.

The UNCRC is a groundbreaking treaty that acts as a creed of children’s rights. It is designed to promote the protection of our children worldwide. It is important to acknowledge those rights within the Bill, because they are too often overlooked or systematically violated in the UK. Children in our country are going without adequate food, clothing, housing and warmth—basic human rights.

In recent years, we have seen dramatic changes in the political landscape. The UK’s decision to leave the EU has cast doubt on the continued enjoyment of many rights and entitlements and created uncertainty. If we do not act now and accept this new clause, we are saying we are happy with the status quo. In other words, we are allowing legislation to continue to be made that does not adequately protect and promote children’s rights. In fact, we are often allowing legislation that does the exact opposite. I hope Committee members will agree to the new clause.

Photo of Kate Green Kate Green Labour, Stretford and Urmston

I want to add a few remarks in support of the new clause, to which I added my name.

The recent conclusions of the UN Committee on the Rights of the Child identified where the UK has so far failed to put effective law, policy and resources in place to protect and promote children’s human rights. The report of the Joint Committee on Human Rights on the Bill also concluded:

“the Government’s assertion that legislation is already assessed for compatibility with the UNCRC is not borne out by the evidence.”

I am aware of concessions made by the noble Lord Nash during the passage of the Bill in the House of Lords, including commitments to raise awareness of the convention through Civil Service Learning and to hold a roundtable with civil society organisations over the course of this year. However, those commitments do not go far enough. They will not have the impact of a due regard duty in strengthening compliance with the convention across the board.

What Opposition Members are asking for is very simple. In order to ensure that a systematic and robust accountability mechanism is in place to take account of and protect children’s rights now and in the future, we need to embed these rights within our own statutory body. We have these commitments under international law. We made them many years ago, as my hon. Friend the Member for South Shields pointed out. We profess to take them seriously in policy development, so I cannot see why we would not be prepared to reflect them in statute and to ensure accountability if the commitment is not borne out in practice.

Political commitments by this Minister and this Government will not be enough. Children cannot be put at risk by political cycles. Responsible Governments have to build on a framework of legislation that protects children for not only today but the future. Paying due regard to the UN convention sends a signal worldwide that we want to be better as a country at protecting children, and that means we are in a strong position to use our international influence with others while improving things at home.

A national approach to strengthening children’s rights is a crucial foundation for ensuring every child everywhere can have a better life, but equally important is ensuring that those agencies children encounter on a day-to-day basis are also driven by respect for children’s rights. Rights become most real for children at the local day-to-day level, in their homes, in their schools—I have seen some immensely impressive examples of rights-respecting schools—in their communities and through their contact with local services and practitioners.

A children’s rights framework such as the one created by the new clause would embed the convention in children’s services and other public authorities working with children and families, no matter where they are. It would enable public authorities to better safeguard, support, promote and plan for the rights and welfare of children in their area.

I would like to know what evidence the Government have that there would be difficulties with incorporating the convention into UK statute, that it would not be effective to do so or that it might turn out to be a box-ticking exercise. If the Minister has such evidence, perhaps he will put it before the Committee. My view is that the implementation of such a duty at a national level would rest with the Government and that ensuring that it is more than just ticking a box is therefore in their hands.

If the Government insist on pursuing a non-legislative approach to children’s rights, will the Minister commit to introducing a comprehensive child rights framework across Government to improve on the current commitments and set out how that framework could have the same effect as a due regard duty? We need to understand how and, importantly, when such a framework will be introduced to ensure that children’s rights are not forgotten once the opportunity presented by the Bill has passed.

Photo of Edward Timpson Edward Timpson Minister of State (Education)

I am grateful to Opposition Members for raising the important issue of the United Nations convention on the rights of the child, to which the Government are fully committed. We have already taken and continue to take steps to raise awareness of and strengthen action to promote the rights that the convention contains, as well as the safety and welfare of children more generally. Implementing the UNCRC has been a continuous process by successive Governments since its ratification in 1991, and we must never cease to look for new and better ways of promoting the rights and interests of children. However, the question is what the best way to achieve that is and what will have the most impact on changing behaviours and improving the way in which we consider children’s rights in policy making.

The Government do not believe that introducing the duty set out in the new clause is the right way to achieve those goals. As has been mentioned, a UNCRC due regard duty was debated in the other place, where Lord Nash set out clearly the Government’s position and why we think that such a duty is not the best way forward.

Our commitment to the UNCRC is already reflected in legislation. For example, the Children Acts 1989 and 2004 set out a range of duties to safeguard and promote the welfare of children. Section 11 of the 2004 Act places duties on a range of organisations, including local authorities, the police, health services and a variety of other agencies, to ensure that their functions and any services that they contract out to others

“are discharged having regard to the need to safeguard and promote the welfare of children”,

which is one of the key rights set out in the convention. In 2013, we issued statutory guidance to directors of children’s services that requires them to

“have regard to the General Principles of the United Nations Convention on the Rights of the Child (UNCRC) and ensure that children and young people are involved in the development and delivery of local services.”

Recent legislation in the area—particularly the Children and Families Act 2014, which I took through the Bill Committee, as well as many aspects of this Bill—provides further examples of how we constantly seek not only to protect children’s rights but to enhance them. Ofsted plays a role in assessing the experiences of children and young people and testing the quality of support through the single inspection framework. The Children’s Commissioner has a statutory function of promoting and protecting the rights of children, having particular regard to the UNCRC. Those responsibilities and powers were strengthened in the 2014 Act.

So there is a lot in place already, but I agree with Opposition Members that there is more we can do. There is no doubt that introducing a duty is one of those options. The hon. Member for South Shields spoke about Scotland and Wales. Although they have ratified the convention, they have not incorporated it into their domestic law, as is the case in England. Both have more recently gone down the route of a “having regard” duty, but they have chosen significantly different approaches and it is still too early to understand fully what the consequences of those different approaches will be. However, I will continue to look carefully at their emerging impact and, having assessed that, will remain open-minded about the right way forward in due course.

Although we are not persuaded that the duty is the right approach, we agree on the need to focus on changing the culture so that officials and practitioners think about children and their rights as an integral part of their everyday work. In many ways, that is the concept behind the corporate parenting principles set out in clause 1. I want those who work with children, particularly those who work with the most vulnerable children, to recognise that that concept is a moral imperative and see the benefits of better policy and delivery that it will bring. As was pointed out by the hon. Lady, we issued a written ministerial statement in October last year. It is about changing culture across Government at both the national and the local level. We also responded to the UN’s concluding recommendations through that WMS and a letter from the permanent secretary to his counterparts across Government. We are determined to follow through with a number of other significant measures designed to embed children’s rights in Whitehall and beyond.

First, as the hon. Member for Stretford and Urmston mentioned, we have introduced a programme to raise awareness of the UNCRC among civil servants and to increase understanding of what it means to have regard for the articles on carrying out public duties in relation to children. The programme will include a new core learning and development offer through Civil Service Learning, and an offer through the policy profession led by the director-general for children and social care and the chief social worker. That work is beginning now, and I expect to see the learning and development offer in place within six months. That goes further than any previous Government have in making the UNCRC an integral part of civil service development.

Secondly, we have made a commitment to work with the Joint Committee on Human Rights on how to promote and embed good practice, including through the use of children’s rights impact assessments. As those develop, I am sure that Opposition Members will want to have further information about how they can be of benefit.

Thirdly, later this month the Department will host a roundtable with the likes of UNICEF and the Children’s Rights Alliance for England to explore how we can develop the framework of action for which the hon. Member for Stretford and Urmston was calling. We will have input from those who have the experience and expertise to support us to change behaviours and culture and to promote children’s rights in policy making both locally and nationally.

Fourthly, the Department will work with UNICEF—I have had an opportunity to meet it on a number of occasions recently—to spread best practice from local authorities that are effective in promoting children’s rights and in articulating the principles and values associated with such practice. We will also ensure that the next review of the statutory guidance, “Working together to safeguard children”—the main piece of statutory obligations for those working with children in the care system and on the edge of care—looks at the underpinning principles and how those can be strengthened to reflect children’s rights.

We will, of course, continue to discuss and review progress with relevant non-governmental organisations as well—this cannot be the preserve of Departments alone—while also continuing to observe and assess the results of those various approaches to implementing the UNCRC, in particular in Scotland and Wales. As I said, we will keep an open mind on where we may be able to go further in the future. I hope that our comprehensive piece of work, hitherto unprecedented by a Government, will embed the UNCRC as deeply and as broadly as possible across government nationally and locally and that it will provide the reassurance that hon. Members are looking for.

Photo of Kate Green Kate Green Labour, Stretford and Urmston 11:45, 12 January 2017

I am very encouraged by much of what the Minister is saying and by the additional work to embed a framework to protect children’s rights. If, having done that and evaluated its effectiveness, the Minister thinks it is a very short step to adopting fully a duty to have due regard in law, would he be willing to consider doing so?

Photo of Edward Timpson Edward Timpson Minister of State (Education)

I have said that the process is ongoing. It has developed over many years, with Governments taking different approaches but all trying to improve our ability to respond to the convention in how we carry out domestic law in this country. I do not see that that process will ever have an end, so of course we need to remain open-minded about where we go in future. As things stand, we have set out a comprehensive programme of work, which gets to the heart of what will make a difference: that those charged with the responsibility of making or delivering policy have, at heart, an understanding and appreciation of children’s rights and an ability to have them at the centre of their thinking. I hope that that gives the hon. Member for South Shields a sense of the strong commitment of the Government to the UNCRC. I also hope that she will withdraw her amendment.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families)

I thank the Minister and am pleased that he has made some acknowledgement of the fact that the Government’s way is not working and that there is more work to be done. I am happy to withdraw the amendment on the basis that my hon. Friends and I will be monitoring what the Government are doing very carefully. We look forward to a formal response to the UN committee’s concluding observations, which I am sure the Minister will provide in due course. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 15