Corporate Strategy Board – Report
DEVELOPMENT OF CHILDREN’S COMMISSIONER LAW
- Purpose
This paper outlines the policy objectives for the draft Law that would establish the role and functions of, and ascribe powers to, a Children’s Commissioner for Jersey. The paper identifies the central policy considerations to the Commissioner’s role, discusses key proposed provisions in the draft Law and intended operational workings.
This paper, and comments received on the overview of the policy objectives for the Children’s Commissioner role, will inform the continuing development of law drafting instructions. This paper and presentation will be delivered to the Council of Ministers on 4th July.
- Recommendations
The Corporate Strategy Board is asked to:
- Consider the proposals within the paper, having discussed the following points:
- The appointment and removal processes for the Commissioner
- The powers of the Commissioner in relation to legal proceedings
- The funding source for the Commissioner
- Approve the paper being placed on the Council of Minister’s agenda for 4th July (subject to any changes).
- Background
In spring 2017 members of the Children and Vulnerable Adults (CAVA) Ministerial Group (now the Community Policy Group) considered the potential establishment, role and remit of a Children’s Commissioner for Jersey. Ministers endorsed the recommended establishment of a full-time post of Children’s Commissioner[1], subject to that role being aligned with any relevant findings made by the Independent Jersey Care Inquiry (IJCI).
In July 2017 the IJCI published its recommendations and identified the establishment of a Children’s Commissioner as a key recommendation. Following this the Treasury Minister, at the request of the Council of Ministers, released Central Contingency funding to facilitate the appointment of a Children’s Commissioner for Jersey[2].
The first Children’s Commissioner for Jersey, Deborah McMillan, was appointed in December 2017, operating in in shadow form initially while legislation to underpin the role is developed.
3.1. What is a Children’s Commissioner?
A Children’s Commissioner is a form[3] of independent human rights organisation for children with a mandate to monitor, promote and defend the human rights of children. A Children’s Commissioner has a high-profile public role in representing children’s interests, drawing attention to their rights and identifying where the government and other agencies are failing to give those rights sufficient regard and protection.
In numerous countries across the world, the establishment of a commissioner for children or equivalent body has tended to follow that country’s ratification of the United Nations Convention on the Rights of the Child (UNCRC). The United Nations Committee on the Rights of the Child (the UN Committee) has set out its view that “…every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights.” Jersey became a signatory of the UNCRC in 2014. In doing so, the States of Jersey agreed to continue to develop its legislation in a manner compatible with the UNCRC. In spring/summer 2016, the UN Committee undertook its fifth periodic review of the UK’s progress and compliance with the UNCRC and set out a number of observations and recommendations for the UK to consider. Jersey was part of this review and the concluding observations[4] are informing the legislative priorities of the States of Jersey.
It should be noted that the Children’s Commissioner role will be the first of its kind for Jersey. While Jersey has a number of other industry specific commissions, the Children’s Commissioner will be the first full-time Commissioner in Jersey and the first dedicated, independent, body in Jersey charged with promoting and overseeing compliance with an international human rights convention.
3.2. Approach to developing the draft law
The policy rationale for the draft Law, and proposed features of the draft Law’s content, have been developed with regard to the following –
a) international standards, e.g. the ‘Paris Principles’;
b) Children’s Commissioner legislation from England, Wales, Scotland and Northern Ireland; and
c) Jersey legislation establishing commissions, e.g. the Charities (Jersey) Law and the Regulation of Care (Jersey) Law.
International standards for independent human rights organisations
The IJCI recommended[5] that the establishment of a Children’s Commissioner for Jersey should be “…enshrined in States’ legislation in a manner consistent with the UN Principles Relating to the Status of National Institutions (the Paris Principles).”[6] The Paris Principles are an international set of standards for the establishment of national independent human rights institutions (NIHRI), endorsed by the United Nations General Assembly. They set out six essential characteristics and features for these institutions: independence guaranteed by statute or constitution; autonomy from government; pluralism, a broad mandate based on human rights standards; adequate resources; and adequate powers of investigation.[7] A more detailed summary of the Paris Principles can be found in Appendix 1.
Policy considerations around the Children’s Commissioner role and the law drafting instructions have been developed taking into account the Paris Principles.
The UNCRC does not specifically call for the creation of a Children’s Commissioner, however the UN Committee considers the establishment of a Commissioner as part of the general obligations of a government in implementing the UNCRC. The UN Committee’s General Comment No. 2[8] adapts the Paris Principles to provide detailed guidance for NIHRI’s with a specific child rights remit, and those comments have influenced policy and drafting instructions.
At a regional level, the European Network of Ombudspersons for Children has developed its Standards for independent national human rights institutions for children, based on the Paris Principles.[9] These factors have also been factored into policy and drafting development.
Learning from other jurisdictions
Children’s Commissioners have been established in law across the United Kingdom (2001: Wales, 2005: Scotland and England, 2008: Northern Ireland). International standards do not dictate a universal model for establishing a commissioner role and the preferred model and remit of the role varies in each of the UK’s jurisdictions. There are however common features, such as the duty of the commissioner to promote rights and powers to investigate complaints or other matters affecting children’s rights. The development of policy and drafting instructions in Jersey has sought to identify these common features and import them, with modifications where necessary to reflect relevant local factors.
Independent reviews[10] of the role of the UK’s children’s commissioners have been carried out, with each review identifying areas where varying degrees of legislative reform are needed, for example to strengthen the commissioner’s independence and investigatory powers. In England and Scotland the outcomes of the independent review led directly to legislative amendments. Policy officers have reviewed the reports, and government responses where available, to understand the latest evaluation of the performance of commissioners in other jurisdictions in order to enhance the development of policy and legislation here.
- Policy objectives
The following sections of this paper set out the main policy objectives for the draft Law and the role of the Children’s Commissioner in Jersey. Areas which require further policy development, or those which diverge from existing legislation both locally and in the UK, are highlighted.
4.1. Primary policy objective
The primary objective of the draft Law is to bring forward legislation establishing a Children’s Commissioner for Jersey, demonstrating that Jersey has not only responded to IJCI recommendations, reflected international best practice and lessons learned from other jurisdictions, but has also established a Commissioner who can act as a commanding champion for the rights and interests of children and young people in Jersey.
4.2. Status, establishment and appointment
Enshrining the role of Children’s Commissioner in law is emphasised by both the Paris Principles and UN Committee General Comment No 2. It was also recommended by the IJCI panel. Doing so demonstrates the significance of the role, reinforces independence, and ensures long-term sustainability.
Independence
The independence of a Children’s Commissioner from government has been described by UNICEF as a “defining feature” of the success of the role, giving the role its “main strength and source of legitimacy and authority.”[11] The promotion and protection of this independence is a key policy objective underpinning all aspects of the Commissioner’s role, but particularly in relation to appointment and accountability.
Status
It is intended that the Children’s Commissioner will be established in law as a corporation sole which, in essence, enables continuity in the office of Children’s Commissioner notwithstanding changes in personnel and enhances the legal standing of the position in certain regards, e.g. the right for the Children’s Commissioner to contract in that name, to sue and to be sued. The status of the Commissioner as corporation sole is consistent with the status of commissioners in England, Wales and Northern Ireland and is the status ascribed to the Charities Commissioner and the Health and Social Care Commission in Jersey.
A corporation sole status is also recognised as an important feature of the independence of the Children’s Commissioner’s role, something which has been specifically recognised in reviews of commissioner roles in England and Wales. There are added benefits to the corporation sole status in terms of autonomy over strategy and objectives, and in the application of budgets. Reviews of commissioner roles in the UK have scrutinised the corporation sole status and have encouraged steps to ensure that corporation sole status does not engender a culture of absence of accountability in the Commissioner’s role. Policy officers in Jersey have considered these observations and it is proposed to ensure that the Children’s Commissioner in Jersey will be subject to in-depth external and internal accountability, in the form, respectively, of submission of annual reports to the States for scrutiny and an advisory board. These aspects are discussed in more detail further below.
Appointment: process
The appointment process for the Children’s Commissioner is critical to the independence of the role. It sets the tone for the level of trust in the Commissioner and, in doing so, influences the Commissioner’s effectiveness.
There is no standard approach to the appointment of commissioners in the UK or globally. The appointment of Deborah McMillan to the post, in shadow form, was in line with normal practice for senior appointments - nomination by a recruitment panel and formal appointment by the Chief Minister with oversight by the Jersey Appointments Commission.
Appointment of a Commissioner (or equivalent) by the executive, in a fashion similar to this, is common practice in the UK. However, this approach is recognised as having a negative impact on the perception of the Commissioner’s independence and arguably might be considered contradictory to the Commissioner’s function of holding government to account. As such, it is a key policy objective to ensure that the appointment process around the post of Children’s Commissioner, to be reflected in the draft Law, ensures in terms of perception and working the independence of the Commissioner’s position, as far as is possible within Jersey’s executive and parliamentary system.
The detail of the appointment process for the Children’s Commissioner is still being determined. The prevailing consideration in deciding the statutory process will be the IJCI’s recommendation that “…in the interests of independence, any such appointment in Jersey should be made by the States Assembly rather than by Ministers.”[12] A statutory process for the appointment of the Commissioner which involves ministerial appointment with oversight by the Jersey Appointments Commission would not meet the IJCI’s recommendation. This is a policy challenge that will require an innovative solution.
Whatever the chosen solution, the appointment process will factor in consideration of the appointment by a panel of young people. This is not common practice internationally[13] however the involvement of children and young people is considered by Unicef to be beneficial, in that it helps to de-politicise the process and places children’s interests at the centre of the process[14]. It is proposed that the involvement of children and young people continues to form part of the appointment process for future commissioners in Jersey, as it did with Deborah McMillan’s appointment, and that this requirement is provided for in the draft Law. It is anticipated that members of the Commissioner’s youth advisory panel (discussed further below) will form an interview panel as part the appointment process.
Appointment: disqualification
In order to protect the independence and integrity of the Commissioner’s office it is proposed that a person who falls into one of the categories below would be ineligible to hold the role of Children’s Commissioner -
- Any person who is a member of the States of Jersey;
- Any person who has worked as an employee or under a contract of services for the States of Jersey;
- Any person who has, or has had, an interest (financial or as an officer, member, trustee, employee or associate) in the provision of services to children (for example health care services or educational services).
Grounds for disqualification are common features in the UK legislation, though they tend to extend only to those holding political office. The rationale for the wider scope of exclusions in the present context (i.e. regarding previous or current interests) is to ensure added trust and confidence in the office given the remit of the Commissioner’s functions. It should be appreciated that the extent of the proposed disqualifications means that recruitment to the post from within the Island, or the Channel Islands in future, is unlikely.
The IJCI recommended that the States of Jersey should explore the possibility of creating the Children’s Commissioner post as a joint appointment with other jurisdictions. Jersey will establish a Children’s Commissioner for Jersey however work is ongoing in exploring possible pan-island arrangements. Any significant development in this regard would require careful consideration of how a pan-island commissioner would be underpinned in legislation, given the need for legal powers and obligations spanning distinct jurisdictions. This is a matter which will be kept under ongoing policy and legal review.
Appointment: term of office
It is proposed that a person holding the office of Children’s Commissioner should have a single, fixed, non-renewable term of office. Reviews of commissioner roles in the UK consider a longer-term of appointment offers greater stability to the office, a more strategic focus, and ensures that independence is not influenced by the seeking of another term of office. In the UK, commissioners are all appointed for fixed terms, for example 5 years in England and 6 years in Wales. It is proposed that the Children’s Commissioner for Jersey is a fixed-term appointment. The length of that term is still to be determined but, noting the upper limit of 9 years recommended in Jersey Appointments Commission guidance[15], it is possible that a fixed term could mirror the length of equivalent appointments in the UK, perhaps 8 years which is the term of the Scottish Commissioner.
Appointment: Dismissal
The process for the dismissal of the Children’s Commissioner is considered to be a further important feature which bolsters the independence of the office. The grounds on which the Commissioner can be removed from post will, as is common with other commission and commissioner posts, relate to such grounds as misconduct, criminal conviction or incapacity to perform duties. The process for dismissal will seek to ensure that the Commissioner cannot be removed for unwarranted or undue pressures and influences, but would to a certain extent need to reflect the independence and transparency of the corresponding appointment process.
4.3. Mandate of the Children’s Commissioner
It is proposed that the draft Law will provide the Children’s Commissioner with a broad mandate, in line with guidance in the Paris Principles and the UN Committee, to pursue the principal aim of promoting and safeguarding the rights and interests of children and young people in Jersey.
Functions
The draft Law will set out a range of functions for the Children’s Commissioner which are common to all UK Commissioners (selected functions outlined in more detail further below) -
- Promotion, and raising awareness, of children’s rights (built on a requirement for the Commissioner to have due regard to the UNCRC) – this would include a power to submit reports to the States on issues affecting children and young people in Jersey, and working with the States to develop awareness raising strategies around the UNCRC;
- Monitoring government commitment to children’s rights and interests. This would include –
- powers to review legislation and policy affecting children and young people (for example reviewing Child Rights Impact Assessments, a process to be developed and implemented further with the incorporation of the UNCRC to Jersey law);
- providing direct input into the reporting process of the UN Committee during its periodic reviews);
- Assisting in, and representing the interests of children in, matters where children are aggrieved or otherwise impacted by government practice or policy, to ensure the best possible outcome for children;
- Conducting, and commissioning where appropriate, research and reports on matters relating to children’s rights, which in turn enhances the role the Commissioner can play in influencing government policy on matters affecting children;
- Promoting best practice amongst service providers; and
- Facilitating participation of children and young people in the work of the Commissioner[16].
Functions: Conducting reviews
A key function of the Commissioner will be to conduct reviews of legislation, policy and practice, the purpose of which will be to assess the impact on children’s rights and interests of such matters. The Commissioner’s review function will also look to ensure government adherence to its commitments in terms of children’s rights (for example the recommendations of the IJCI and compliance with the UNCRC) and to highlight those areas in which the government is failing children and young people.
Conducting reviews is an essential mechanism by which the Commissioner can identify gaps in policy, practice and legislation, and hold government to account. The draft Law will also seek to ensure that the Commissioner can also play a part at the policy-formulation stage and advise government on new policies in terms of their impact on children’s rights. This was highlighted in the reviews of both the Welsh and English Commissioners and should form part of the functions for Jersey’s Children’s Commissioner. The Commissioner will also have the power to review complaint and representation (e.g. advocacy) procedures, and arrangements around whistleblowing where they exist, to ensure that those processes are open to and facilitate the best outcomes for children.
Functions: receiving and investigating complaints
The Commissioner will have the power to receive and investigate complaints from, or on behalf of children and young people, concerning a violation of their rights, as reflected in the UNCRC. This is an important means of empowering children and young people to exercise their rights, and a further mechanism by which government can be held to account. Unicef[17] highlights the importance of receiving and investigating complaints as a means of providing a commissioner with direct insight into the lives of children and young people and the challenges they face, and can be a valuable source for directing the policy work of the commissioner. The ability to handle complaints, particularly in individual cases, is recommended and emphasised by the UN Committee in General Comment No 2 and through its Concluding Observations as part of the UK’s periodic reviews. All UK Commissioners, with the exception of the English commissioner[18], are empowered to receive and investigate individual cases.
It is proposed that the Children’s Commissioner for Jersey will be provided with the power to conduct both general investigations (which relate to the rights of children and young people in Jersey generally) and individual investigations (which relate to the rights of an individual child or young person). Not all complaints received will result in investigation – there will naturally be an initial triaging of complaints received - and it is intended that the investigations would be conducted only in rare circumstances. The Commissioner will prioritise the resolution of complaints at the service level in individual cases through cooperative means, involving both child and specific parties in dialogue and mediation where deemed appropriate. This is the case in Scotland following changes to the law in 2014.
Restrictions on investigations
All legislation establishing the role and remit of UK commissioners contain provisions limiting the circumstances in which the commissioner can initiate an investigation (for example, in Northern Ireland the commissioner must not investigate a matter in which a statutory right of appeal exists unless it is considered unreasonable for the person concerned to have resorted to that means of redress). Restrictions on the scope of a commissioner’s investigatory function can be a useful tool in ensuring the effective functioning of the organisation and should not necessarily be viewed as a means to render the commissioner unable to review and investigate complaints.
It is proposed that the draft Law would include the following restrictions on the scope of the Jersey Commissioner’s investigatory function, but mindful of the need to ensure as much flexibility and discretion for the Commissioner as possible in these circumstances -
a) A requirement for an investigation, whether general or individual, to raise a question of principle which has applicability to a wider group of children and young people. This is to ensure that resources are not consumed by a high volume of investigatory work and the Commissioner is able to effectively conduct work at a strategic level.
b) A requirement that the Commissioner only conducts an investigation where it would not duplicate work that is properly the function of another organisation or body. This restriction would be a useful means of minimising the potential of overlap with other bodies, (such as the Independent Safeguarding Board and the forthcoming Public Services Ombudsman in Jersey).
It should be noted that the Commissioner will have a rights-based mandate both in terms of the principle aim of the role and in relation to investigatory powers. There is no other body in Jersey with such a mandate and so it is anticipated that the restriction set out in (b) will not be overly prohibitive on the Commissioner’s ability to conduct investigations.
Pursuing the Commissioner’s investigatory mandate will require the Commission to work at an operational level with a number of other agencies and bodies in Jersey. The Commissioner will have the power to enter into arrangements with these bodies, for example through a memorandum of understanding for joint working and referral of cases. The Welsh Commissioner has such arrangements in place with various other supervisory bodies.[19]
At an operational level, a prevailing consideration for the Commissioner will be to ensure that operations and the exercise of powers are consistent with the Commissioner’s policy priorities (whether established or targeted), or are directed towards matters of sufficient significance.
Powers
The Commissioner’s functions will be facilitated by a number of statutory powers, primarily in support of the Commissioner’s review and investigation role. These will include -
- Powers of entry onto premises (excluding domestic residences) where children are living, looked after or detained, or where services (such as education, health care) are provided to children. These powers are common in UK commissioner legislation and, for example, in provisions underpinning the Care Commission’s functions;
- Powers to interview children (again, except in the domestic sphere) and others involved in providing services to children; and
- Power to request, inspect and copy documents or other records concerning children and relevant to the performance of the Commissioner’s functions, such as investigating complaints.
In other parts of the UK legislation also provides children’s commissioner with certain powers in relation to legal proceedings, such as the power to assist, intervene in or commence legal proceedings. In England, the commissioner has exercised statutory powers to intervene in proceedings concerning the deportation of a mother, submitting evidence and oral submissions to the court on matters affecting the human rights of her dependent children and, in another case, intervening in order to invite the court to consider questions pertinent to the rights of children. The power of the commissioner to assist children has been applied in the UK to provide financial assistance to children and their families in bringing proceedings with a wider significance to children’s rights and facilitating legal advice in bringing those proceedings. In Northern Ireland, the commissioner has exercised these powers to bring judicial review proceedings involving human rights claims against the NI Assembly on issues such as reform of the common law ‘parental punishment’ defence and decisions to bring forward anti-social behaviour order legislation within a shortened consultation timeframe[20].
There is further policy and legal consideration that is required in order to assess providing the Children’s Commissioner with equivalent powers in Jersey. However, one suggested approach to this issue it provide a regulation making power in the Law to enable regulations to expand the powers of the Commissioner in this regard should the States consider it necessary to do so.
Remit
It is proposed that the remit of the Children’s Commissioner will cover all children up to the age of 18. This is in line with the UNCRC interpretation of ‘children’. However, the Commissioner will be able to act on behalf of a young person who is disabled or who has been placed in care at any point in their lives, who is over the age of 18 in some circumstances. This is in recognition of the vulnerability of and longer transition period into adulthood for children who have been in care or who are disabled.
The remit of the Children’s Commissioner will typically cover all children and young people ordinarily resident in Jersey. This includes those children who are placed in care off-island. Although they are not physically residing in Jersey, these children remain the responsibility of the States of Jersey, which as their corporate parent, still has obligations to uphold their rights. The intention is not to seek extra-territorial powers in this regard but rather to ensure that the Jersey Commissioner has the power to receive and raise the issues faced by children placed in off-island care arrangements by the States of Jersey, and hold them to account on behalf of this vulnerable group of children. Given that the UK Commissioner does not have the ability to receive individual complaints, it is even more imperative that Jersey children living away from home have a mechanism through which to have their voices heard when their rights have been violated.
4.4. Accountability of the Children’s Commissioner
External Accountability
External oversight of the work of the Children’s Commissioner should be provided by the States Assembly. This was suggested by the Care Inquiry Scrutiny Panel in their report on the response to the Care Inquiry “…Proper independence should require reporting directly to the States Assembly, especially taking into account the corporate parent issues experienced historically. It is the view of the Review Panel that the role should be carried out without fear or favour, and this should be reflected appropriately in the legislation that is brought forward to underpin the role.”[21]
Reporting
There will be a requirement on the Commissioner to prepare a forward looking strategic report every 4 years setting out the proposed work and operational focus of the Commissioner during that time. The Commissioner will also be required to prepare annual reports, accounting for the work undertaken in each year. The Commissioner will be required to submit those reports to the States Assembly. It is intended the Commissioner’s annual report should form the basis of an annual debate in the States Assembly about the work of the Commissioner and the state of children’s rights in Jersey, as is the practice in Wales. The Commissioner will also have the power to submit to the Assembly any other ad-hoc special reports which result from the Commissioner’s research, reviews or investigations.
Accountability to the public
In general, NHRIs have two levels of accountability, one to the State and one to the public. Being accountable to the public also strengthens independence. NHRIs can submit reports to the Government, parliament or any other competent bodies. The Paris Principles also require NHRIs “to publicize human rights [...] [and increase] [...] public awareness [...] by making use of all press organs”. The “methods of operation” section of the Paris Principles provides that institutions must address public opinion, either directly or through the media, especially to publicise their opinions or recommendations.
As mentioned above, the Paris Principles also require institutions to keep the public informed of their work, in particular of their recommendations and opinions, and promote the use of the media to this end. In addition to reporting on specific areas of work, an institution should also conduct formal performance evaluations by measuring achievements against specific, ascertainable goals. For reasons of transparency and accountability, such performance evaluations should be public. By doing so, an institution can both motivate internal excellence and ensure that the public is aware of the institution and of the standards of achievement it has set. This level of transparency will inevitably enhance an institution’s external credibility. The requirement for the Commissioner to report to the States Assembly, and for that report to be subject to a public and transparent debate, will enhance the public accountability of the Commissioner.
Accountability to Jersey’s children
It is considered critical that the Children’s Commissioner must be accountable to Jersey’s children and young people. That accountability will be reflected in requirements for the Commissioner to publish reports that children can understand, by encouraging children’s involvement in monitoring and evaluating the Commissioner’s work, and by ensuring that the Commissioner is always open to public scrutiny and comment. The Belgian (Flemish) Commissioner, for instance, “translates” its annual report to Parliament into an attractive newspaper for children to explain its work over the previous year. This is distributed through schools, libraries and youth clubs.
Internal Governance
Commissioner’s Advisory Panel
In order to provide support and challenge to the Commissioner, it is proposed that the Commissioner be required to establish an advisory panel. The remit of this is to provide guidance and support as to the discharge of the Commissioner’s functions, although ultimate responsibility for determining priorities will rest with the Commissioner. The constitution of the panel will be determined by the Commissioner from amongst a range of relevant stakeholders (for example, government, industry and children), in line with the principle of pluralism set out in the Paris Principles.
This is not a common feature within the legislation of the other UK commissioners. Only the English Commissioner is required to establish an advisory board. The Welsh Commissioner does have an advisory panel to help inform her work, though this is not required by law.
Youth Advisory Panel
In order to further reinforce the centrality of children and young people in the Commissioner’s work it is proposed that the Commissioner be required to establish a formal Youth Advisory Panel to inform its work through proactively contributing to the strategic planning process and also scrutinising the work of the Commissioner via input to the annual report.
A requirement for such a body in law is again not common practice but would signify the importance Jersey places on the voice of the child informing the work of the commissioner and its commitment to ensure it.
Funding
General Comment 2 states that the IHRIC has to have adequate infrastructure, funding, staff, premises and ‘freedom from forms of financial control that might affect their independence.’
Many of the UN Committee’s concluding observations over the years since the UNCRC was adopted point to a lack of adequate funding for IHRICs, hampering the effective functioning of the institution. To reflect these very real concerns, the funding of the Office of the Children’s Commissioner should be removed from political control and guaranteed over a given period. Generally speaking, funding should be allocated by the Budget approved by the States Assembly, rather than from a specific budget line within a single Ministry/Department.
The UN Committee on the Rights of the Child stated the following in relation to adequate resourcing of children’s Commissioners: ‘While the Committee acknowledges that this is a very sensitive issue and that State parties function with varying levels of economic resources, the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of article 4 of the Convention. The mandate and 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.”[22]
Discussions with the Treasury and the States Greffe are required to ensure that an appropriate mechanism can be identified for Jersey which strikes the right balance between accountability and autonomy.
- Next steps and timescales
The Council of Ministers (CoM) will receive this paper at their meeting on 4th July. Subject to endorsement on the overview of the policy and law drafting approach from Ministers, the law drafting instructions will be finalised and submitted to the Principal Legislative Drafter to prepare a first draft of the law.
Consultation with stakeholders will take place over the summer. It is proposed that during this consultation period the draft law will be discussed with the Community Policy Group.
Feedback form the consultation will be used to produce a final version of the Law. This will be brought back to both CSB and CoM for sign-off prior to lodging with the States Greffe. The aim is to lodge the draft law by the end of 2018.
- Conclusions
Establishing the post of Children’s Commissioner in Jersey is an important way in which the States of Jersey is demonstrating its commitment to meeting its obligations under the UNCRC and upholding and realising children’s rights in Jersey.
Enshrining the post of Children’s Commissioner within legislation was recommended by the IJCI, is considered best practice by the United Nations and furthermore the membership of the European Network of Ombudspersons for Children is only open to those institutions that are established through legislation approved by parliament, which provides for its independence. Independence is considered an essential characteristic of the success of this role and it has been the guiding principle underpinning the development of the legislative framework outlined in this paper.
Appendix 1
Recommendations agreed by CAVA[23]
CAVA Ministers are asked to consider and comment on the Children’ Commissioner proposal. They are asked to consider and agree, subject to review against IJCI recommendations, that:
1) A Jersey Children’s Commissioner should be appointed.
2) Crown Dependencies: A Jersey Commissioner should established in the first instance. Discussions with IOM and Guernsey can run in parallel but should not hold up Jersey appointment.
3) Buy-in: Jersey not consider buying-in a UK Commissioner service
4) Children’s Commissioner only: A Children’s Commissioner should be established in the first instance. Potentially give consideration to Adults Commissioner and/or at Equality & Human Rights Commissioner at a later date.
5) Joint Commissioner and Safeguarding Chair: Commissioner and SPB Chair role should be separate.
6) Ombudsman: Commissioner should not act as an ombudsman but should have a role in overseeing complaints processes.
7) Legislation: The Children’s Commissioner should be provided for in statute.
• Stand-alone legislation should be brought forward (as opposed to bringing forward as part of overall review of the 2002 Law)
• The law should explicitly sets out the independence of the Commissioner
8) Appointment:
• appointment to commence ahead of legislation coming into force, to minimise time delays
• full time for three-year term (renewal in line with JAC guidance)
• Commissioner may be Jersey resident but must demonstrate independence
• appointed by Chief Minister on the recommendation of a panel, including a Children and Young Person’s panel
9) Timeframe and process:
- seek to secure funding agreement in order that CM can announce Commissioner appointment in June/July ahead of an R&P in relation to other IJCI recommendations
- consultation with key stakeholders to commence in June/July further to CM’s announcement.
Appendix 2
A summary of the Paris Principles[24]
From 7 to 9 October 1991, the first International Workshop on National Institutions for the Promotion and Protection of Human Rights was held in Paris following a 1990 request from the Commission on Human Rights to organize a gathering of national and regional institutions involved in the promotion and protection of human rights. The conclusions of the workshop were endorsed by the General Assembly in resolution A/RES/48/134 adopted on 20 December 1993, and became known as “the Paris Principles”. The Paris Principles define the minimum conditions that national human rights institutions (NI) must meet if it is to be considered a legitimate NI. They are universal in their application and must be seen as a whole.
The six key criteria set out in the Paris Principles are the following:
1. Independence guaranteed by statute or constitution;
2. Autonomy from government;
3. Pluralism, including in membership;
4. A broad mandate based on universal human rights standards;
5. Adequate resources; and
6. Adequate powers of investigation.
Competence and responsibilities
The Paris Principles provide that NIs are to be vested with competence to promote and protect human rights through as broad a mandate as possible, clearly articulated in a constitutional or legislative text.
The Principles also specify the responsibilities of an NI. Firstly, NIs shall submit recommendations, proposals and reports to the Government, parliament and any other competent body. The subject matter can be any legislative or administrative provision relating to the protection of human rights; any situation of a human rights violation; or the preparation of reports on the national human rights situation or more specific matters.
Thirdly, NIs may promote conformity of national laws and practices with international human rights instruments, as well as encourage ratification of international human rights instruments and ensure their implementation. An NI may also contribute to the reporting process under international human rights instruments (with due respect for the independence of the NI).
More broadly, an NI may cooperate with the United Nations, regional institutions, and NIs of other countries, which are competent in the areas of the protection and promotion of human rights.
Finally, NIs may assist in developing and delivering human rights teaching and research programmes, and contribute to increasing public awareness of human rights through information and education.
Composition
Besides listing the above mentioned responsibilities, the Paris Principles also address the composition of an NI and its independence, emphasizing the importance of a pluralist representation of social forces involved in human rights promotion and protection. The Principles specifically mention NGOs, trade unions, professional organizations, trends in philosophical or religious thought, academia, parliament, and Government departments. On the participation of Government representatives, it foresees that they should only have advisory powers.
Furthermore, it must be stressed that, as a guarantee for their effective independence and functioning, NIs should have adequate funding, allocated by parliament, and have their own staff and premises.
Methods of operation
On the methods of operation, the Paris Principles provide that the NI shall freely consider any question falling within its competence, hear any person and obtain any information and document necessary for assessing situations falling within its competence. It shall also meet on a regular basis, establish working groups from among its members as necessary, set up local or regional sections, consult with other bodies responsible for the protection and promotion of human rights, develop relations with human rights NGOs, and address public opinion.
Finally, the Paris Principles recognize that a number of NIs have competence to receive and act on individual complaints of human rights violations.
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