Mr Poots (Chairperson)
Mr Beggs
Mrs E Bell
Mr Dalton
Mr Ervive
Ms Lewsley
Mr McNamee
Mr K Robinson
Mr Shannon

Prof B Dickson ) Northern Ireland
Ms D Magill ) Human Rights Commission

The Chairperson: I welcome Prof Brice Dickson and Ms Denise Magill from the Northern Ireland Human Rights Commission.

Prof Dickson: I wish to make it clear that the information we have provided is based on our experience as a statutory body over the past three and a half years with some responsibility to promote and protect the rights of children. It is also based on our assessment of whether we have enough powers to do such work. We recently made recommendations to the Northern Ireland Office for an increase in our powers. I also wish to stress that in all our work and in our comments on the Bill we are driven by the internationally accepted rules and principles for the protection of human rights.

With regard to the Bill, we wish to ensure that the office of the commissioner reflects international standards and best practice and that it has all the resources it needs to promote and protect equally the rights and the best interests of all children in Northern Ireland effectively. It is necessary to create an effective and powerful office from the start.

The Northern Ireland Human Rights Commission’s experience has been that unless an institution has the powers and resources that it needs, it must spend a great deal of time establishing its credibility and lobbying for additional powers.

Mr Beggs: The legislation covers devolved and non- devolved matters, and therefore not everything is within the gift of the Northern Ireland Assembly. Words such as "welfare" and "best interests" have been used throughout the Bill for legal reasons. In other words, it followed discussions with the Northern Ireland Office.

Prof Dickson: We are not aware of the Northern Ireland Office’s objections, and we did not anticipate any legal difficulties in changing the wording.

Mr Beggs: There may not be legal difficulties, but the Northern Ireland Office’s decisions may have been political.

Prof Dickson: Perhaps the Northern Ireland Office does not want higher standards to be applied to how reserved powers operate in Northern Ireland compared to how they operate in the rest of the United Kingdom, or at least in England and Wales. That, as you say, is a political matter. The Human Rights Commission is arguing for the highest possible standards to be applied in this part of the kingdom.

The Chairperson: It was the Northern Ireland Minister’s intention to use the words "best interests". There was discussion with the Northern Ireland Office, and it insisted that the words should be "welfare", but the Welsh Commissioner thought that it would make no difference. However, many people are making an issue of it. What is the difference between "best interests" and "welfare" in appointing a children’s commissioner and the work that he or she would have to do?

Prof Dickson: That is a good question. In nearly every instance, I would have thought that the welfare and best interests of the child would coincide. The point may be that the word "welfare" is used in the Children (Northern Ireland) Order 1995, whereas the "best interests" principle comes from the United Nations Convention. However, the Children (Northern Ireland) Order 1995 was enacted partly to reflect the requirements of the United Nations Convention. I for one do not appreciate any significant difference between the two terms.

Mr Beggs: If there is no difference why is it an issue?

Prof Dickson: We prefer the phrase "best interests" because it is internationally accepted.

Ms Magill: The United Kingdom has signed up to the United Nations Convention on the Rights of the Child, and that is the standard that it is supposed to uphold throughout the jurisdiction. It is obliged to uphold that standard, but the Northern Ireland Office appears to be looking for what it may perceive to be a lower standard.

The Chairperson: That is useful to know because we could have got into a spat with the Northern Ireland Office about it. If the wording were to delay the introduction of a children’s commissioner Bill, we would prefer simply to accept it.

Mr Ervine: No.

The Chairperson: We may disagree about this, but we will discuss it further. We may be prepared to accept it, as it will make no difference to the delivery of the commissioner’s task when he or she is in post. You have assisted the Committee, and you will have the opportunity to develop that in a moment.

Ms Magill: It may pose a difficulty for the commissioner insofar as he or she is obliged, under clause 2(3)(b), to

"have regard to any relevant provisions of the United Nations Convention on the Rights of the Child".

It may pose a difficulty for the commissioner if he or she tries to apply different standards. On the one hand, the word "welfare" appears in the legislation, but the commissioner must also have regard to the standards of the United Nations Convention. It reinforces our argument that one standard should apply throughout.

Ms Lewsley: "Best interests" is used in all the key areas and "welfare" is used only for legal reasons. The Committee had to fight to have "best interests" included.

Mr Dalton: You recommend that a new section 2(3)(c) be inserted to ensure that the commissioner has regard to the full range of relevant international human rights standards above the United Nations Convention. What extra standards do you have in mind? Why should they be included?

Prof Dickson: Although the United Nations Convention on the Rights of the Child is a comparatively recent document, dating from 1989, it has been superseded in time and detail by other international documents dealing with the rights of minorities and the rights of employed children. One must not forget that those rights and principles change as they are interpreted by the treaty monitoring bodies. The European Convention on Human Rights is a good example of that. However, to avoid doubt, the Bill should require the commissioner to have regard to the full range of international human rights standards.

Mr Dalton: I understand that those other standards are a relevant part of the commissioner’s interpretation and work, but I am concerned that the commissioner will be required to take every extraneous convention and international right into account. There would be a judicial review if the commissioner were unable to demonstrate that he had fulfilled every international standard. I am concerned that that would put an unnecessarily heavy burden on the commissioner.

Prof Dickson: One can overestimate the difficulties of keeping up to date with the international standards, as there are not many of them and they have been compiled in thin books. Not all of them deal with children. Therefore it would not be difficult to pick out the provisions that are relevant to children and keep them close by when the commissioner is considering their applicability.

Mr Dalton: "Relevant" is subject to interpretation; one could argue about a provision’s relevance. That is a large problem, and I am not convinced that its benefit outweighs its detriment.

Ms Magill: It may not be the difficulty that it appears on paper. The Northern Ireland Human Rights Commission recently studied a draft policy from the Department of Health on consent, that of children, for example. One area to be examined was the consent of children to non-therapeutic research. The European Convention on Human Rights and Biomedicine provided the exact answer that the commission needed. We would not have got that answer from the United Nations Convention on the Rights of the Child. The European Convention on Human Rights and Biomedicine was a more specific international standard stating that it is not enough to say that children should routinely be encouraged to give consent to take part in non-therapeutic research.

It is not particularly difficult to keep up to date with provisions that are relevant to children, and the Northern Ireland Human Rights Commission has not found it difficult to use general standards and specific standards in harmony.

Mr Dalton: The Northern Ireland Human Rights Commission recommended a new section 3(4)(b). It would read:

"The Secretary of State and the Executive Committee of the Assembly shall refer to the Commissioner all draft laws and policies proposed for Northern Ireland as early as practicable and before they are introduced to Parliament or the Assembly or made available to the general public."

You also propose an amendment to clause 3(4)(a):

"The Commissioner shall advise the Assembly whether a Bill is compatible with the rights and best interests of children and young persons."

You know of the Assembly’s requirement that Bills are compatible with the European Convention on Human Rights. Indeed, the Human Rights Commission has a responsibility for that. Why should the children’s commissioner also be given that extra responsibility? Does it not place an administrative burden on the commissioner that involves replicating work already undertaken by the Human Rights Commission, which already has a responsibility to make recommendations on children’s rights?

Prof Dickson: Taking your latter point first, we do not necessarily object to two bodies advising the Assembly or the Secretary of State. The Human Rights Commission could establish an agreement with the children’s commissioner as to which body will prepare comments first, and if the other body had something supplementary to say, so be it. However, one would not duplicate the other’s efforts.

On your first point, it is important that there be a duty on the Secretary of State and on the Executive Committee to refer matters to the commissioner so that he or she can decide whether there is something worthwhile to be said about new laws and policies. Our experience is that informal arrangements whereby efforts are made to provide the commissioner with information, which is at present the case with the Northern Ireland Human Rights Commission, could collapse very easily. The Northern Ireland Office or the United Kingdom Government have proposed several major initiatives, of which the Human Rights Commission has been given no specific notice.

Mrs E Bell: Policies should be child-proofed, and we have been trying to alert the Executive to that. The Committee feels that young people should be involved in appointing a commissioner. Do you agree?

As it stands, the Bill does not have enough teeth; perhaps it will grow some in time. Your paper states that the commissioner should have more power, including a stronger ability to recommend that cases be investigated. Should the commissioner’s powers be further bolstered so that children have access and clear information on how to use the legislation?

Prof Dickson: Yes. I should have said at the start that the Human Rights Commission welcomes the Bill. It can be improved, and we hope that it will be, but it is certainly better than nothing and better than present arrangements. We want children and young people to be involved in the open and competitive selection for the commissioner. That would be consonant with United Nations standards on human rights.

Our proposed clauses 3(4)(a) and 3(4)(b) would, of course, increase the involvement of the commissioner at the pre-publication stage of draft laws and policies. The commissioner could influence what is put into the public domain, which would then be opened up for argument. The Human Rights Commission wanted that power and has occasionally been given it on some matters, but not generally. The Government could avoid difficulties and even embarrassment if they only asked the Human Rights Commission for advice on whether what they are proposing is compatible with international human rights standards.

Mr K Robinson: Our concern is that the child be protected; we all have the best interests of the child at heart, however we define those.

We were impressed with how the Norwegian Commissioner negotiated with people. He gave some graphic examples of how he engaged the confidence of children, but he was also able to bring statutory bodies and commercial interests along with him, which seemed a very effective approach.

Are we not tying ourselves down into a tight, legalistic framework? Are we trying to ensure that the statutory bodies do not wriggle about or are we ensuring that the child’s best interests are fully protected?

Prof Dickson: It is not a choice of one or the other — both are required. Specific and tightly drafted legislation is necessary to detail what the commissioner can and cannot do. Our argument is that the commissioner should be given extensive powers. When operating in the real world, the commissioner, like the Human Rights Commission, will not always have the relevant Bill at hand but will have the needs of the children to the fore. When we talk to people we have in our minds their human rights concerns.

Our duty, and that of the new commissioner for children, is to promote awareness of rights and responsibilities; and that provides an opportunity to explain and to help people to understand what is involved — a role that the Norwegian Commissioner fulfilled very ably.

Mr K Robinson: We have seen, with the fair employment legislation and to some extent the Human Rights Commission, a reticence in people to engage with you because they perceive the legalistic nature of the Bill as a challenge to their role in society.

My hope is that the statutory bodies do not form a circle when they hear the words "children’s commissioner" but that they will consider their own structures and any problems yet to be identified by the children. The children would then be confident that the system would not process them through a legal framework or a court but would solve their problem. I am concerned that we may be straying away from that.

Prof Dickson: I appreciate your concern, but I would have hoped that the concept of children’s rights is not as controversial as the broader one of human rights. Certainly in Northern Ireland —[Interruption].

Mr K Robinson: Children may have their rights infringed, but we have all lived long enough to see the possibility of someone, for whatever reason, telling a child that his or her rights have been infringed and using the child as a weapon in another context.

Prof Dickson: That is always possible. However, the hope is that it would be avoided in nearly every case. The concept of human rights is controversial in Northern Ireland, as the Human Rights Commission knows only too well, and political parties sometimes make use of the phrase in a way that suits them. Such a danger arises when children’s rights are discussed; however, we do not disagree in Northern Ireland about what children’s best interests are.

Mr K Robinson: I made a similar point earlier. An unfortunate consequence of this matter is that some children are badly served by the legal framework and institutions. I return to the example of a child who is isolated at home and who may not have access to a commissioner.

Prof Dickson: That is why we have suggested improvements to the Bill.

Mr K Robinson: Will those improvements safeguard the child?

Prof Dickson: I hope so.

Ms Magill: It was suggested that statutory bodies may be reticent and close the circle against the children’s commissioner. Worldwide, organisations such as ours found that when it was made clear from the outset that the new body was to have strong powers, the statutory bodies quickly recognised its role and the need to co-operate with it so that its powers — such as powers of entry — rarely need to be used. However, when the powers were not strong and were not made clear, the statutory bodies tried to test the boundaries and were less co-operative. Those experiences appear to contradict the idea that if a legalistic approach is taken people close the doors and do not co-operate.

Mr K Robinson: Let me give a quick example —

The Chairperson: Mr Robinson, we must move on.

Mr K Robinson: The anti-bullying policy. The Department, boards and schools all say that we must have it —

The Chairperson: Mr Robinson, we are moving on. Will the witnesses disregard the question so that we can move to the next one?

Mr K Robinson: We have a policy and have met the required stipulation, but children still get thumped in the playground. How do we prevent that?

The Chairperson: May we have the next question, please.

Mr McNamee: It has been suggested that clause 8(2)(a) be deleted. It states that a commissioner cannot exercise his power on a complaint unless he is satisfied that the complaint raises a question of principle. It was also mentioned that legislation dealing with the Equality Commission and the Human Rights Commission would include similar constraints. That could lead to unseemly and costly arguments about whether a question of principle has actually been raised. Have the Equality Commission and the Human Rights Commission been involved in such arguments? In practice, the powers granted under this clause mean virtually nothing, and that is why they have been criticised.

Secondly, it was suggested in another submission that clause 8(2)(b) be deleted because it severely restricts the commissioner in the exercise of his or her powers. That point was also made about clause 9, which would allow the commissioner to use his powers in only a few circumstances. What are your views on that?

Prof Dickson: First, I cannot give you any clear examples of unseemly and costly arguments about whether an abuse is a question of principle. However, when deciding whether to grant assistance, the Human Rights Commission considers whether the request raises a question of principle. In practice, the commission finds that question difficult to answer because it is open to many interpretations. It tends to err on the side of caution and decides that it is a question of principle.

If a person is alleged to be suffering a human rights abuse, it is a serious matter for that person and for that reason it becomes a question of principle. To try to be more abstract is difficult and one leaves oneself open to judicial review by saying that X is a question of principle and Y is not. I suspect that this legislation has simply borrowed from other legislation dealing with discrimination without paying regard to the meaning of the phrase. As far as the Human Rights Commission is concerned, that phrase is more or less meaningless. When deciding whether to ask for assistance or to take any other action, one bears in mind a host of concerns and not simply whether it is a question of principle.

I am not sure that we have given particular attention to clause 8(2)(b).

Mr McNamee: In your submission, you state that clause 9(1):

"at present excludes the Commissioner from conducting an investigation in virtually every situation."

Mr McNamee: A similar point was made about clause 2(b).

Prof Dickson: Yes.

The Chairperson: Clause 8(2)(b) would preclude the commissioner from considering anything that is already within the remit of a statutory organisation that can deal with the complaint.

Prof Dickson: Yes. Although we have not addressed that in our paper, our view is consistent with what was said about clause 9, that clause 8(2)(b) should be deleted. However, the commissioner should have discretion about what he or she wishes to investigate. There should be no restrictions on that; at the same time there should be no duplication of the work of other organisations if that wastes public money. If anybody is to be given priority in investigating children’s rights it should be a children’s commissioner who will be appointed for that purpose. If people are to be excluded from investigating children’s issues, it should be other organisations — not the children’s commissioner.

Mr Ervine: The concerns of the groups that I hear from are based on the juvenile justice system, other complaints procedures that can debar the commissioner from investigating, child-only complaints and the limiting clauses in the Bill, of which there are several. When we measure ourselves against Wales we get a round of applause, but it is still not good enough. If we do not make the proposed amendments it will be a missed opportunity. My Colleague has left now, but to question you on "best interests" versus "welfare" was rather foolish. That should have been a question for the Northern Ireland Office and not for you.

I want you to agree with me about the Bill’s restrictions on the commissioner’s powers in the juvenile justice system. If a statutory agency had a complaints system that had not been used, the commissioner could not technically take the complaint until all other complaints had been exhausted. All those issues, the question of child-only complaints, coupled with the limiting clauses, add up to a missed opportunity.

Prof Dickson: We agree with that, if by "child-only complaint" you mean that one cannot make a complaint on behalf of a child. Complaints on behalf of a child should certainly be allowed and it would be nonsense, and not just a wasted opportunity, if children in custody in Northern Ireland could not benefit from the functions of the commissioner for children and young people.

Mr Ervine: Do you believe that it would be immoral for a commissioner to have knowledge of the suffering of a child or of a child’s best interests being disregarded or of a child’s rights being abused and do nothing about it because there was a so-called procedural system that had to be negotiated? Would it not be a negation of the human rights of the child to ignore that?

Prof Dickson: It could well be indirectly discriminatory in that most of the young people in custody in Northern Ireland are young men. For example, are they to be given less protection vis-à-vis their rights than young women not in custody who may be in a different institution and not, perhaps, in the juvenile justice system? It is wholly anomalous, to put it at its mildest, to have different systems applying to children in different institutions in Northern Ireland.

Ms Magill: We stress that under the United Kingdom’s obligations, which apply to the devolved Administration as well, the United Nations Convention on the Rights of the Child applies to all children. It is difficult for the Assembly to pass legislation that provides a higher standard of protection to children who are subject to institutions of the devolved Administration than those that administer non-devolved matters.

Ms Lewsley: Some strong cases were made during negotiations with the Northern Ireland Office, but the problem is that we do not have any control over it. We are not happy with what we have, but it is better than what we would have achieved had we not fought as hard as we did. Until certain reserved matters are our responsibility, some of these issues will not be fully resolved. We may get more leeway; we may not. Those in the juvenile justice system, asylum-seekers and refugees may also be excluded.

The Welsh Commissioner was delighted with our Bill because it gives us more powers than Wales could ever have dreamed of. We raised the matter of individual cases and asked whether a commissioner could get bogged down by looking at the case of every child that came to him, whether the case had gone through procedures or not. The commissioner said that he assesses whether the procedures have been complied with when a child comes to his office and that his office will provide the child with guidance in his case.

Perhaps our commissioner could go one step further by maintaining contact or by having an evaluation to ensure that the child went through a system; that the child could make a complaint and that the case either came to a conclusion or would be referred to the commissioner.

You draw attention to the duplication of assistance and state that clauses 7(3) and 7(4) should be deleted. The Committee believes that the Northern Ireland Human Rights Commission should have a role in the office of the commissioner for children. At that time, you suggested that a memorandum of understanding be drawn up to ensure that if the Human Rights Commission were to deal with a complaint from a young person or child, the commissioner would not duplicate the work. There would be an understanding between the two organisations.

Prof Dickson: We agree with that. There should be a memorandum of understanding between the children’s commissioner and the Human Rights Commission. We do not follow the logic of the Northern Ireland Office that the Bill must contain a provision amending the Northern Ireland Act 1998, which governs the Human Rights Commission, for otherwise we could be duplicating the work of the children’s commissioner. If that reasoning were right, the Northern Ireland Act 1998 ought to be amended in other respects, because we already overlap with the powers of the Police Ombudsman and the powers of the Equality Commission as well as many other bodies. Naturally, we do not trespass on their areas if that duplicates their work and wastes public money.

The Chairperson: Why should clause 11(4) and 11(5) be deleted?

Prof Dickson: We see no need to draw a rigid distinction between the investigative and casework roles of the commissioner. Where the commissioner has been involved in an investigation and then wishes to be involved in litigation on the same case, steps can be taken to ensure that information obtained during the investigation is not improperly used in litigation. In any event, at the litigation stage, the commissioner will have powers of discovering documents that have been obtained during an investigation. This clause deals with a hypothetical problem. If such a problem exists, it can be dealt with in other ways.

The Chairperson: Are you content that no one against whom a complaint had been made might say that he or she had been the subject of an investigation by the children’s commissioner and that the commissioner was now his or her advocate? Are you content that there would be no infringement of that person’s human rights?

Prof Dickson: We considered that carefully when preparing our submission. We are confident of complying with article 6 of the European Convention on Human Rights, which deals with fair hearings. We want to see exactly what mechanisms the children’s commissioner has for separating the investigative role from the litigation role. If a person is unfairly affected by the commissioner’s dual role, we shall comment on the commissioner’s intended procedures. In principle, we see no objection.

The Chairperson: Does the Committee still wish to delete clause 11(4) and 11(5)? Could it perhaps be amended to cover such contingencies?

Prof Dickson: The exclusion created by 11(4) and 11(5) is much too broad and too wide-ranging; it deprives the children’s commissioner of a hugely important role. It should be deleted, not amended.

The Chairperson: Thank you very much. Today’s meeting has been very useful, and we appreciate your evidence.

Do Members wish that the Northern Ireland Office be requested to attend the Committee to discuss amending the legislation?

11 September 2002 (i) / Menu / 18 September 2002