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COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION
  1. This Explanatory and Financial Memorandum relates to the Commissioner for Children and Young People Bill. It has been prepared by the Office of the First Minister and Deputy First Minister in order to assist the reader in understanding the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
  2. The Memorandum needs to be read in conjunction with the Bill. It does not provide, and is not meant to be, a comprehensive description of the Bill. So where a clause, or part of a clause, does not seem to require any explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
  1. On 29 January 2001, the First Minister and Deputy First Minister announced the intention of the Northern Ireland Executive to establish a Commissioner for Children for Northern Ireland as part of a wider children's strategy. They considered that there was a need for Northern Ireland to have a "champion for children" - a strong, independent voice to promote and protect their rights and to represent their interests; someone to advise the authorities and challenge them when necessary.
  2. The aim in establishing a Commissioner for Children and Young People for Northern Ireland is not to usurp the role of parents nor to duplicate or take over existing functions of other agencies. It is intended that the Commissioner will add value by performing new and distinct functions as well as making the existing systems work better.
  3. Ultimately, the intended outcomes of the policy are:
CONSULTATION
  1. Since the Ministers' announcement in January 2001, there has been widespread consultation on the role and remit of the Commissioner and on the necessary appointment and accountability mechanisms. This culminated in the publication of a formal consultation paper on 9 August 2001, with consultation running until 8 November 2001.
  2. The Committee of the Centre carried out its own independent consultation exercise, and its recommendations have also helped inform the policy development process.
OPTIONS CONSIDERED
  1. The consultation paper put forward a 'model' for consideration rather than a series of options. The vast majority of responses were in favour of the model suggested, which was drawn up in light of best practice in neighbouring jurisdictions and internationally. The Bill, therefore, implements the main features of the model proposed.
OVERVIEW
  1. The Bill has 28 clauses and three Schedules. Clauses 1 and 2 establish the Office of the Commissioner for Children and Young People and set out the principal aim of the Office. Clauses 3 to 19 set out the functions (duties and powers) of the Commissioner. This includes provision for three different types of investigation:

Clause 20 provides for reviews of the legislation and clauses 21 - 28 deal with supplementary matters such as interpretation, commencement and short title. Schedule 1 provides for the staffing, funding and other procedural arrangements and Schedule 2 sets out the procedures in relation to investigations under clauses 3(2) and (3) and 5(6). Schedule 3 further defines the term 'relevant authorities'.

COMMENTARY ON CLAUSES

Clause 1: The Commissioner for Children and Young People for Northern Ireland

This clause provides that there will be a Commissioner for Children and Young People for Northern Ireland (the Commissioner) who will be appointed by the First Minister and Deputy First Minister jointly. It also activates the provisions in Schedule 1 which deal with, for example, general powers, finances, staffing matters and accountability.

Clause 2: Principal aim of the Commissioner

This clause sets out the main aim of the Commissioner, which will be to safeguard and promote the rights and best interests of children and young persons. The term 'rights,' is not defined in the Bill, but will include all the rights recognised by the law of Northern Ireland. The term 'children and young person' is defined in clause 24.

This clause also sets out a number of guiding principles for the Commissioner. The clause makes it clear that, in deciding whether or how to act in relation to a particular child, the best interests of that child is to be the Commissioner's main consideration. The Commissioner must also have regard to the views of the child and give them weight depending on the child's age and level of understanding. The provision also requires the Commissioner, when deciding whether or how to use his functions, to have regard to the role of parents and it obliges the Commissioner to have regard to any provision in statute or rule of law which requires a body or person to act in a way, or have regard to any factor, other than the rights of a child. It provides that the Commissioner must specifically take into account the relevant rights contained in the United Nations Convention on the Rights of the Child which the UK ratified in 1991. Some of the rights in the UN Convention, for example, those relating to matters outside the remit of the Commissioner or those relating to obligations between states, are not relevant.

Clause 3: Duties of the Commissioner

This clause sets out the five duties of the Commissioner, namely:

Clause 4: General powers of the Commissioner

This clause sets out the general powers of the Commissioner. They include:

1. Unlike general investigations, the procedure for these specific types of investigation is defined (in Schedule 2). However, this provision does not permit the use of the formal powers of investigation in clauses 12 to 19 for this type of investigation.

Clause 5: General review of advocacy, complaint, inspection and whistle-blowing arrangements of relevant authorities.

This clause sets out the general reviewing and monitoring functions of the Commissioner in relation to the operation of advocacy, complaints, inspection and whistle-blowing arrangements made by a relevant authority. The purpose of any such reviews or monitoring is to enable the Commissioner to determine whether, and to what extent, the arrangements have been effective in promoting and safeguarding the rights and best interests of children. However, a 'reasonable grounds' test must be satisfied before the Commissioner can act. Relevant authority is defined in clause 25 and Schedule 3 to the Bill. In relation to those authorities listed in Part I of Schedule 3, the Commissioner can use the full range of formal investigative powers; however in relation to those authorities listed in Part II of Schedule 3, that is, those authorities which are the responsibility of the Northern Ireland Office or other Whitehall Departments, the Commissioner can only use the procedure set out in Schedule 2 without the formal powers set out in clauses 12 - 19.

Clause 6: Review of advocacy, complaints, inspection and whistle-blowing arrangements of relevant authorities in individual cases

This clause sets out the reviewing and monitoring functions of the Commissioner in relation to an authority's advocacy, complaints, inspection or whistle blowing arrangements, insofar as they apply to a particular child or young person, or particular premises. Again, the power is subject to a 'reasonable grounds' test, and regardless of which relevant authority is being reviewed, the full powers of formal investigation set out in clauses 12 - 19 are available.

Clauses 7 to 9 reflect the intended role of the Commissioner in relation to complaints, which is to provide assistance, ensure that complaints arrangements work effectively, and to plug any gaps.

Clause 7: Assistance with complaints to relevant authorities

This clause sets out the power of the Commissioner to assist a child to make a complaint against a relevant authority. This includes acting on behalf of a child both in making the complaint and in any investigation or other proceedings conducted by that authority following the complaint. However, the Commissioner may assist or act on behalf of a child only if there is no other body or person likely to do so. This is to ensure that the Commissioner does not duplicate the role of other authorities.

Clause 8: Investigation of complaints against relevant authorities

This clause sets out the power of the Commissioner to conduct an investigation into a complaint made by a child against a relevant authority that his rights have been infringed or his interests adversely affected. The Commissioner is limited to investigating those cases where he is satisfied that the complaint raises a point of principle and cannot be investigated under another statutory complaints system.

Clause 9: Actions which may be investigated: restrictions and exclusions

This clause explains that the Commissioner shall not conduct an investigation into any matter where the complainant has or had a right of appeal, complaint, reference or review to a tribunal or court, or remedy by way of court proceedings, unless he is satisfied that it would not have been reasonable to expect the complainant to have resorted to that remedy. In addition, the Commissioner shall not investigate the commencement of criminal proceedings, or the commencement of civil proceedings (other than by a relevant authority); or the conduct of civil or criminal proceedings; or any matter that is or has been the subject of a local or public inquiry; or if he considers that there has been unreasonable delay in making the complaint. This will enable the Commissioner to refuse to investigate very old complaints.

Clause 10: Power to bring, assist in, or intervene in, legal proceedings

This clause sets out the power of the Commissioner to bring civil proceedings relating to the law or practice relating to the rights or welfare of children, and to assist in, or intervene in any legal proceedings which relate to the rights or welfare of children. The Commissioner must be satisfied that the case raises a question of principle or that there are other special circumstances, for example, there is no other body capable of bringing or intervening in proceedings which make it appropriate for the Commissioner to do so.

This power is subject to the general requirement of the Human Rights Act 1998 that in proceedings brought by or against a public authority involving an allegation that the authority has acted in a manner incompatible with the European Convention on Human Rights, there must be a 'victim', that is, child or young person whose rights have allegedly been infringed. It does not allow the Commissioner to take hypothetical cases. The clause includes a provision (at sub-section (5)) to prevent the Commissioner from exercising this power in relation to a particular matter that has previously been the subject of a formal investigation by the Commissioner. This is to ensure that there is no conflict between the Commissioner's role as an advocate (in legal proceedings on behalf of a child or young person) and his role as an ombudsman (impartially investigating or reviewing arrangements or cases).

Clause 11: Assistance in relation to legal proceedings

This clause sets out the scope of the Commissioner's power to assist a child in relation to certain legal proceedings, that is proceedings which involve law or practice concerning the rights or welfare of children. The clause limits the power to those cases which raise a question of principle and where it would be unreasonable to expect a child to deal with the case without assistance, for example, because of its complexity, or where there are special circumstances which make it appropriate for the Commissioner to provide assistance. The types of assistance which may be granted may include the provision of legal advice, legal representation or other assistance as appropriate. This clause also includes a provision (at sub-section (5)) to prevent the Commissioner from exercising this power in relation to a particular matter that has previously been the subject of a formal investigation by the Commissioner. This is to ensure that there is no conflict between the Commissioner's role as an advocate (in legal proceedings on behalf of a child or young person) and his role as an ombudsman (impartially investigating or reviewing arrangements or cases).

Clause 12: Formal investigations

This clause relates to formal investigations carried out by the Commissioner. This clause makes clear that it is for the Commissioner, at his own discretion, to decide which investigations he will initiate, continue or discontinue. The Commissioner can only carry out a formal investigation relating to:

The clause sets out the procedures which must be followed such as the sending of notice of the investigation and the terms of reference to any authority concerned and giving them an opportunity to comment.

Clause 13 - Formal Investigations: Exclusions

This clause prevents the Commissioner from carrying out a formal investigation into a matter in respect of which he has previously brought, intervened in, or provided assistance with, legal proceedings. This is to ensure that there is no conflict between the Commissioner's advocate and ombudsman roles.

Clause 14 - Report on formal investigation

This clause provides that, having conducted a formal investigation, the Commissioner must prepare a report of his findings and send a copy of that report to any relevant authority concerned and other persons as appropriate. The clause contains a confidentiality requirement in that the Commissioner's report must not identify the name of any person or contain any details which might help to identify any person, unless the Commissioner believes it is necessary to do so. In relation to a report following an investigation into how a complaint made by a child was actually handled by an authority, the Commissioner may recommend that the relevant authority consider the complaint again. The Commissioner, however, cannot substitute his views for that of the authority, nor can he quash or reverse any decision that has been taken. The clause also imposes a duty on relevant authorities to consider a recommendation made by the Commissioner and to decide what action, if any, to take in response to it.

Clause 15 - Further action following report on formal investigation

This clause relates to follow-up action which the Commissioner can take after he has published a report on a formal investigation. It provides that he may issue a notice requiring an authority to provide, within 3 months of the date of the notice, information which will enable him to determine whether the authority has complied with a recommendation he has made, or will be complying with it. Alternatively, the authority may provide a statement of its reason for not complying with the recommendation. If the Commissioner considers that the authority's response is inadequate, he can issue a further notice requiring the authority to reconsider the matter and to respond within one month of the date of the notice. The Commissioner may publish the fact that an authority fails to respond to a notice, or responds inadequately to a second notice. The clause also provides that the Commissioner will maintain a register, which will be open for inspection by the public, containing the recommendations of his reports of investigations, the action taken by the Commissioner and the results of any such action.

Clause 16 - Evidence in formal investigations

This clause sets out the type of evidence or information which the Commissioner may have access to in order to conduct a formal investigation. He can require the disclosure of any document or the attendance of any witness which the High Court is entitled to require.

Clause 17 - Powers of entry and inspection for purposes of formal investigation

This clause provides for the Commissioner to have a power of entry into premises run by a relevant authority in which a child or young person lives, is looked after, is detained or where services are provided where the Commissioner believes it is necessary for the proper conduct of the formal investigation. The power may be used in relation to a general review of arrangements in respect of certain relevant authorities (clause 5) reviews of arrangements in individual cases (clause 6), or the investigation of a complaint (clause 8). The clause provides that the Commissioner can examine the premises, inspect records and interview an employee or child on the premises, but also contains the additional safeguard that the parent of a child/young person must be informed of the Commissioner's intention to interview the child. The clause gives parents the right to be present at the interview unless this would not be in the child's interests, or would not be practicable, or would be against the child's wishes, having regard to the child's age and understanding.

Clause 18 - Obstruction and contempt in relation to formal investigation

This clause provides a sanction against obstruction of the Commissioner as he conducts a formal investigation. If anyone, without lawful excuse, impedes the Commissioner in the conduct of the investigation or acts in a way which would otherwise constitute contempt of court, the Commissioner can report the matter to the High Court, and it can be dealt with as contempt of court.

Clause 19 - Disclosure of information by the Commissioner

This clause provides for restrictions on the disclosure of information obtained by the Commissioner during a formal investigation. He can only disclose such information for:

Clause 20 - Review of this Act

This clause provides that three years after the passing of this legislation, and no earlier than every three years after that, the Commissioner is required to make a report to the First Minister and Deputy First Minister. A report should contain his views as to the adequacy and effectiveness of the legislation and may contain his recommendations for improvement.

The First Minister and Deputy First Minister are required to lay a copy of every such report sent to them before the Assembly.

Clause 21 - Privilege for certain publications

This clause provides that any report which the Commissioner is required or permitted to publish is exempt from challenge under the law of defamation.

Clause 22 - Application of this Act: relevant authorities with mixed functions

This clause provides that in relation to relevant authorities as defined in the Bill, the provisions of the Bill which refer to relevant authorities only apply in relation to those authorities' public functions. They do not apply in relation to exercise of the authorities' private functions.

Clause 23 - Application of this Act: matters arising before commencement

This clause provides for the retrospectivity of the Bill.

Clause 24 - Interpretation: 'child or young person'

This clause defines the use of the words 'child or young person' to mean a person under the age of 18, or a person under the age of 21 if he or she has been looked after by a public authority. The clause also provides that a parent or other person may act on behalf of the child or young person. It also makes clear that an adult may, in exceptional circumstances, rely on the legislation in relation to something which happened when that person was a child or young person.

Clause 25 - Interpretation: 'relevant authority'

This clause defines the term 'relevant authority', for the purposes of the Bill. It includes any authority which falls within the purview of the Assembly Ombudsman or the Commissioner for Complaints. It also includes the bodies specifically listed in Schedule 3, which includes a number of bodies in the areas of health, education and in the reserved field such as justice and policing. The clause provides that it is possible for the Office of the First Minister and Deputy First Minister to amend Schedule 3 to add, modify or remove a body or person from the list or move a body or person from one Part to the other. The intention of this definition is to include, within the Commissioner's remit, all public authorities which have functions that affect the rights and welfare of children.

Clause 26 - Interpretation: general

This clause defines a number of terms used throughout the Bill including the reference to the United Nations Convention on the Rights of the Child.

Clause 27 - Commencement

This clause provides for a number of the provisions of the Bill to come into operation upon Royal Assent, namely, clause 1 and Schedule 1 (which establish the office of the Commissioner and funding and staffing arrangements); clauses 24 to 26 (the interpretation provisions), clause 27 (commencement) and clause 28 (short title). It provides for the other provisions to come into operation on such day or days as the Office of the First Minister and Deputy First Minister may by order appoint.

Clause 28 - Short title

This clause provides for the short title of the Bill.

Schedule 1 - The Commissioner for Children and Young People for Northern Ireland

This Schedule provides for the status, general powers, tenure of office and general staffing and procedural arrangements of the Commissioner. It provides for a tenure of 4 years with eligibility for one further term of 4 years and provides for accountability to the Office of the First Minister and Deputy First Minister and the Assembly in relation to Accounts and to the Office of the First Minister and Deputy First Minister, the Assembly and the Secretary of State in relation to an Annual Report.

Schedule 2 - Investigations under Section 4(4) or 5(6)

This Schedule sets out the procedures to be followed when the Commissioner conducts an investigation for the purpose of his functions of:

It provides for the procedure which must be followed such as the sending of notice of the investigation and the terms of reference to any authority concerned and giving it the opportunity to comment; and it provides for the Commissioner to prepare a report of his findings and recommendations and for the subsequent action which he can take.

Schedule 3 - Relevant Authorities

This schedule sets out a number of specific bodies which are defined as 'relevant authorities' by virtue of clause 25(1)(c). It is divided into two parts, Part I lists bodies which are the responsibility of the devolved administration; Part II lists bodies which are the responsibility of the Northern Ireland Office or other Whitehall Departments.

FINANCIAL EFFECTS OF THE BILL
  1. Financial costs in relation to the establishment of the Office of the Commissioner and recruitment of staff have been estimated at £1 million. Ongoing annual costs are projected to be in the region of £1.9 million.
IMPACT ON TARGETING SOCIAL NEED
  1. The Bill will not impact on Targeting Social Need.
HUMAN RIGHTS ISSUES
  1. From the outset, the context for establishing a Commissioner for Children and Young People has been grounded in the promotion and protection of children's rights. The provisions of the Bill are compatible with the Human Rights Act 1998.
EFFECTS ON EQUAL OPPORTUNITY
  1. The impact of these proposals has been assessed in accordance with section 75 of the Northern Ireland Act 1998. The policy is likely to have a differential impact in relation to children and young people; people with dependent children; disabled children. The differential effect will, however, be positive, in relation to the promotion, protection and upholding of children's rights. It is not likely to be discriminatory either directly or indirectly. The policy will impact on children and young people, both male and female, irrespective of sexual orientation, and the impact will be positive in relation to the promotion, protection and upholding of their rights. A full copy of the Equality Impact Assessment is available from the Children and Young People's Unit, Room A5.1, Castle Buildings, Stormont Estate, Belfast, BT4 3SR.
SUMMARY OF THE REGULATORY APPRAISAL
  1. The proposals in the Bill are not expected to result in any significant cost to businesses, the voluntary sector or to charities.
SECRETARY OF STATE'S CONSENT
  1. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.
LEGISLATIVE COMPETENCE
  1. At Introduction the Ministers of the Office of the First Minister and Deputy First Minister had made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Commissioner for Children and Young People Bill would be within the legislative competence of the Northern Ireland Assembly."