United Nations Convention on the Rights of the Child (UNCRC): Indirect incorporation into Jersey Law: Law drafting instructions
Legislation to Indirectly Incorporate the UNCRC
Preferred Policy Model
2 October 2019
CRIA Children’s Rights Impact Assessment
CSP Common Strategic Policy
ECHR European Convention on Human Rights
IJCI Independent Jersey Care Inquiry
NHRI National Human Rights Institution
SPPP Strategic Policy, Performance and Population
UNCRC United Nations Convention on the Rights of the Child
Legislation to Indirectly Incorporate the UNCRC – Preferred Policy Model – October 2019
The United Nations Convention on the Rights of the Child (UNCRC) is an internationally recognised system of children’s rights which has been incorporated by a growing number of progressive states to form the foundation of domestic children’s law and practice.
This paper sets out the preferred policy model for indirectly incorporating the UNCRC into Jersey law following discussions with the Children’s Legislation Transformation Programme Board, the Corporate Strategy Board and the Minister for Children and Housing. A brief introduction to the models which have been used to implement the UNCRC in other jurisdictions is also described below, together with some of the key concepts associated with incorporation.
The status of the European Convention on Human Rights (ECHR) in Jersey, the policy context in which this legislation is being brought forward, case studies which support the rationale for the preferred model and examples of Children’s Rights Impact Assessment (CRIA) screening tools, are presented in the Appendices.
The principal ambition in bringing forward this legislation is to effect a significant culture-change in relation to the policy, legislation and day to day practices which affect the Island’s children and families.
Having requested that the UNCRC be extended to Jersey in 2014, the Island consequently has an obligation as a State Party to continue to pursue measures which further realize and implement children’s rights. In 2017 the Council of Ministers agreed to adopt an incremental approach to incorporating the convention into domestic legislation, beginning with a ‘due regard’ model of indirect incorporation. Ministers also committed to review the option to directly incorporate the convention, once they have considered the findings of the independent review of the alignment of Island’s legislation with the UNCRC.
The preferred policy model proposed in this paper sets-out a robust package of measures to achieve greater implementation of the UNCRC in Jersey. Indirect incorporation of the convention will create a more positive future for Jersey’s children and will support the Island to establish itself as a world leader in how it fulfils, protects and respects children’s rights. Introducing a duty to have ‘due regard’ to the convention is intended to function as a catalyst to initially transform Government policy-making and contribute to the growth of a deeply-rooted culture of rights-based practice, ahead of potential progression towards direct incorporation of the UNCRC.
The United Nations Convention on the Rights of the Child[1],[2] (“UNCRC”) is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The UNCRC, together with two of its Optional Protocols[3], was ratified and extended to Jersey in 2014. As a result of this, Jersey is bound to the UNCRC by international law and is subject to the monitoring and reporting processes of the United Nations Committee on the Rights of the Child (the UN Committee).
Article 4 of the UNCRC binds State Parties to, ‘undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.’[4] The UN Committee, which has provided guiding comments on the interpretation and application of the UNCRC, states[5] -
“implementation is…action to ensure the realization of all rights in the Convention for all children…” and welcomes the “incorporation of the Convention into domestic law, which is the traditional approach to the implementation of international human rights instruments…”
It is widely accepted that there is no single ideal model of incorporation for an international rights instrument, such as a Convention, and, indeed, there are a number of varying approaches which may be taken (which is the case across the many countries which have implemented the UNCRC). Two key models of incorporation have emerged:
- Direct legal incorporation relies on legal enforcement of convention rights through the courts. Its aim is to provide the individual with a remedy for violation of their rights. An example of direct legal incorporation is the incorporation of the European Convention on Human Rights into English and Welsh law by the Human Rights Act 1998 and into Jersey law by the Human Rights (Jersey) Law 2000 (on which see Appendix 1 beneath).
- Indirect incorporation is less coercive and relies on embedding convention rights as aspects of policy development. This may or may not be underpinned by legal obligations on government to take convention rights into account in its work. The aim of this approach is to develop cultural acceptance of convention rights. An example of indirect incorporation is the Rights of Children and Young Persons (Wales) Measure 2011 (the “2011 Welsh Measure”), which provides for a duty on Welsh Ministers to have due regard to the UNCRC when exercising any of their functions and requires them to make a Scheme setting out the arrangements for the purpose of securing compliance with that due regard duty. Among other things, the Scheme sets out a requirement for Ministers and their staff to complete a Children’s Rights Impact Assessment (CRIA) when commencing work related to a Minister’s functions. The intention of the CRIA is that it should be a policy development tool, the purpose of which is to embed UNCRC considerations at the core of policy development.[6]
The policy model described beneath seeks to achieve the ambition for indirectly incorporating the UNCRC by identifying groups of duty-bearers and their activities or and functions to which the duty to have ‘due regard’ should apply.
The model proposed below is not a set of distinct alternatives but rather a sequential set of steps. Taken together, these steps lay the foundation for a new law which would be rolled-out in three phases, with each phase building on the previous by both extending the extent of the duty and the definition of duty-bearers. Bringing the law into force through an incremental approach will make best use of limited government resources to achieve a robust and far-reaching duty, ahead of Ministers’ commitment to reconsider progressing towards direct incorporation of the convention, before the end of the current Assembly’s term in 2022.
In Phase 1 duty-bearers are identified as all those entitled to lodge a Proposition for debate in the States Assembly with the extent of the duty focussed on the development of policy and legislation. Phase 2 fully expands the scope of the duty borne by Ministers and their delegates to include all Ministerial duties and powers.[7] Phase 3 further expands the list of duty-bearers to include named public authorities, including public authorities created by statute. An overview of all three phases is provided in Table 1 below.
Phase 1 would place a duty on the Council of Ministers, individual Ministers and their delegates (Assistant Ministers and Government Departments), to have due regard to the convention in developing policy and primary and secondary legislation. This element of Phase 1 mirrors the approach taken in Wales when the duty on Welsh Ministers to have due regard was first introduced by the Rights of Children and Young Person’s (Wales) Measure 2011. To ensure equity within the Assembly and that children’s rights are not perceived as a matter for the Executive’s consideration alone, Phase 1 also identifies all elected Members as duty-bearers, together with the various boards, panels and committees stipulated in Standing Order 19. In Phase 1 the duty falling on non-Ministerial duty-bearers would only extend to the development of propositions and amendments.
Eligibility to lodge propositions is a crucial consideration in bringing forward indirect incorporation, due to their potential adoption by the Assembly. Standing Order 19 sets out all those who are entitled to lodge a proposition for debate.[8] The right of every elected States Member to seek support for their proposals is a key feature of Jersey’s parliamentary system. As a matter of principle, the preferred policy model for indirect incorporation therefore seeks to ensure that all those with the right to lodge a proposition for debate, should also have a duty to have due regard to the UNCRC.
The overwhelming majority of Jersey’s policy and legislation is developed by Government Departments on behalf of Ministers in response to the priorities set out in the Common Strategic Policy, Government Plan and their precursors. Consistently more than half of all propositions debated in the States Assembly are lodged by the Council of Ministers or individual Ministers. (See Figure 1 below. NB: this data represents initial propositions only and not subsequent amendments.) As such, the Executive’s role and responsibility in bringing forward policy and legislation has the greatest potential to positively impact children’s rights and will consequently shoulder the majority of the duty introduced in Phase 1. Notwithstanding this, the ability of backbenchers and the stipulated committees and panels to set the direction of policy and legislation affecting children, should not be overlooked. Two illustrative case studies are presented in Appendix 3 which describe successful propositions lodged by a backbencher and a Scrutiny Panel.
Figure 1: Who Lodged Propositions? 2017-2019
In Phase 1, the Children’s Rights Scheme would stipulate CRIA as a mandatory process for Ministers and their delegates when developing policy and legislation. To assist the Assembly in considering the impact of propositions on children’s rights, a completed CRIA would need to be published alongside all lodged propositions, regardless of who lodges them.
Whilst the exact detail of Jersey’s CRIA will be determined in drafting the Scheme, the general principles of impact assessment confirm the need to commence CRIA at the earliest stages of policy development process. Work to embed the discipline of impact assessment within the ‘Policy Pipeline’ and the creation of an associated toolkit, is already underway within the Strategic Policy, Performance and Population Department. Policy officers will therefore receive targeted training and support in order to begin undertaking CRIA (potentially within integrated impact assessments), as part of the Government of Jersey’s standard approach to policy development. For the purposes of this proposal, the inclusion of a policy or legislative project in the Government’s Policy Pipeline will be used in lieu of arriving at a precise definition of policy. CRIA commences with a screening step[9] to determine whether the policy or
Legislation to Indirectly Incorporate the UNCRC – Preferred Policy Model – October 2019
Table 1: Overview of Preferred Policy Model - Phases 1-3
Phase | Who would the Duty-Bearers be? | What would the duty to have due regard apply to? | Focus of this Phase | Children’s Rights Scheme (5 Pillars) | Pillar 2: Children’s Rights Impact Assessment |
1: POLICY AND LEGISLATION | (a) The Executive - The Council of Ministers, all Ministers, and those to whom their powers and functions are delegated# (b) All Elected Members of the States of Jersey (c) All committees, panels, boards and other bodies listed in Standing Order 19 (currently paragraphs (d – j)) which are entitled to lodge a Proposition* for debate in the Assembly[10] | For (a): Development of policy and legislation (primary and secondary) For (b) and (c): development of Propositions and Amendments | Policy and legislation - Policies developed as part of the Policy Pipeline
- Primary legislation
- Secondary legislation
- All propositions lodged for debate
| Requirement for a Children’s Rights Scheme stipulated in law to support compliance with the duty through: - Provision of Training to understand UNCRC and the duty
- CRIA to predict and manage impacts on children’s rights
- Reporting requirements to allow duty-bearers to demonstrate compliance
- Promotion of UNCRC to raise everyone’s knowledge
- Child-friendly complaints mechanism(s) to ensure duty-bearers are accountable to rights-holders
| Mandatory CRIA for all policy and legislation (primary and secondary) developed by/on behalf of (a) Mandatory published CRIA for all Propositions* lodged by (a), (b) & (c)[11] |
2: THE FULL DUTIES AND POWERS OF MINISTERS AND THEIR DELEGATES | As in Phase 1 above | Phase 1 above + For (a): all Ministerial responsibilities[12]) | The official duties and powers of all elected members and the committees/panels stipulated by Standing Orders: - Everything Ministers must or may do
| Phase 1 above + Optional CRIA for Ministerial responsibilities held or delegated by (a) |
3: relevant functions and services performed by public authorities | Phases 1 & 2 above + (d) Named Public Authorities not already identified as duty-bearers in Phases 1 & 2 (NB: Precise list to be defined) including public authorities created by statute | Phases 1 & 2 above + For (d): when conducting statutory functions, functions of a public nature and providing services under contract to a public authority | Relevant functions and services performed/provided by public authorities which impact children | Phases 1 & 2 above + Optional CRIA for key functions / services of (d) – potentially using a simplified template / process |
# The Executive (a) is defined here as Ministerial Government comprising: The Council of Ministers, Ministers, Assistant Ministers and Government Departments.
* Propositions, Amendments and Amendments to Amendments. Only completion of the initial CRIA ‘screening step’ would be required to lodge an Amendment or an Amendment to an Amendment, given the time constraints between lodging and debate. In such instances, completion of a full CRIA (where relevant impacts are identified in the screening step), would be recommended but non-mandatory.
proposition in question will positively or negatively impact children’s rights. The CRIA may either conclude after this step or progress to a full impact assessment.
Whilst the majority of Jersey’s policy and legislation is developed by the Executive with recourse to the resources of Government Departments, the committees and panels which are entitled to lodge propositions are provided with officer support by the Greffier.[13] As Figure 1 above demonstrates, the smallest proportion of propositions are lodged by committees, panels and the SEB. Given the provision of statutory officer support for these functions and the relatively low number of propositions lodged, the duty to have due regard should not place an undue burden on these proposed duty-bearers, given appropriate training and support.
Although individual States Members can seek support from the Greffier in drafting and lodging propositions, they are not currently supported by any central resources to research and develop proposals. Analysis of amendments demonstrates that the majority are lodged by backbenchers, as might be expected for Assembly Members who do not form part of the Executive (See Figure 2 below). A bid to create an officer support function for backbench States Members has been submitted as part of the proposed Government Plan 2020-2023, with a view to establishing this during 2020.[14] Although identification of all elected Members as duty-bearers (and the requirement to undertake and publish CRIA when developing propositions), will place an additional responsibility on elected Members, this is necessary to ensure that every proposition is assessed in relation to children’s rights, regardless of who lodges it. Provision of dedicated officer support for backbenchers will assist them to comply with the duty.
Figure 2: Who Lodged Amendments? 2017-2019
The focus of Phase 2 is to extend the breadth of the duty falling on duty-bearers to cover the full extent of their duties and powers.
Aside from the activity of developing policy and legislation, there is significant scope for the exercise of the wider duties and powers of Ministers to have an impact on children’s enjoyment of their rights. (E.g. a Ministerial decision to deport the parent of a child resident in Jersey has the potential to contravene the rights set out in Article 9 of the convention.) In this phase, the duty falling on Ministers would therefore be extended to cover everything they must, or may do, by virtue of their office.[15] This aspect of Phase 2 further emulates the approach taken in Wales where the duty on Welsh Ministers was introduced in two steps, commencing with policy and legislation, prior to being extended to cover ‘any of their functions.’[16]
Building on the Phase 1 requirement for duty-bearers to undertake CRIA when developing policy, legislation and propositions, in Phase 2 CRIA would be a non-statutory but recommended process in relation to the discharge of Ministerial responsibilities. Although undertaking a CRIA is not the only means for Ministerial duty-bearers to evidence their compliance with the duty, this represents best practice for documenting the way in which consideration has been given to potential impacts on children’s rights and will therefore be strongly recommended wherever possible.
Ministers and their delegates will also be able to evidence their compliance with the duty extending to their full duties and powers through each pillar set-out in the Children’s Rights Scheme (see Key Concepts section below). Due regard requires a balanced consideration of all relevant issues including children’s rights; this will be supported through the provision of training and resources to equip duty-bearers to develop and apply their understanding to all areas of responsibility.
Option 3 represents the final phase of the preferred model for indirect incorporation which would extend the definition of duty-bearers to include other named public authorities, including named public authorities created by statute.[17]
There will be a need to define, through engagement and consultation, the precise list of the public authorities who will be identified as duty-bearers in Phase 3 for the purpose of this law. The definition employed is likely to be broadly similar to that found in the Freedom of Information (Jersey) Law 2011,[18] albeit tailored to the ambition and scope of indirect incorporation and the potential impact public authorities may have on children’s rights when performing relevant functions and providing services. Given the likely requirements of the duty, it will be crucial to eliminate any ambiguity about the identity of duty-bearers to ensure they can benefit from appropriate training and support in order to demonstrate that due regard has been given to the convention.
It is not proposed that there should be a mandatory requirement for the public authorities identified as duty-bearers to undertake CRIA, due to the resource implications for government if there was an obligation to support this process. Introducing compulsory impact assessments is likely to be counter-productive in securing genuine culture change across the children’s system. However, it is proposed that a modified CRIA template/process should be developed for voluntary use and best practice where these entities seek to explore and understand the potential impact of their planning, functions or services.
As with Phase 2, public authorities will be able to evidence their compliance with the duty relating to their functions and services through the pillars set-out in the Children’s Rights Scheme (see Key Concepts section below).
The proposal to identify public authorities as duty-bearers in Jersey, is not unique. Section 2 of the Children and Young People (Scotland) Act 2014[19] already sets out a requirement for named public authorities to report every three years on the ‘steps it has taken in that period to secure better or further effect within its areas of responsibility of the UNCRC requirements.’ The Government of Scotland has recently consulted on a proposal to directly incorporate the UNCRC into Scottish legislation.[20] The draft Children’s Rights (Scotland) Bill[21] identifies ‘Scottish public authorities,’ as ‘Relevant Authorities’ for the purpose of the Act and would therefore place a duty on them to comply with the Articles of the UNCRC.
It is proposed that each Phase of the law should be brought in via a series of Appointed Day Acts in order to secure and work towards a defined timetable for preparation and implementation. (See Table 2 below.) Phases 1 and 2 should be enacted before the 2022 election. Phase 3 would most likely be enacted after the 2022 election, potentially at the beginning of 2023. There is scope to stagger the identification of named public authorities as duty-bearers under the law, so that support and training could be phased-in thematically. Possible groups of public authorities could be: the 12 Parishes; voluntary sector organisations; the arm’s length bodies; and, public authorities created by statute.
Given the operational impact of the proposed legislation, a cross-Government implementation team will be formed to: steer the phased roll-out; to develop employees’ understanding of the convention through training and resources; to build capability within the organisation; and to support duty-bearers to confidently comply with their duties. This implementation team will be established by the Children’s Policy team within Strategic Policy, Performance and Population (SPPP) with support from Government and non-Ministerial departments.
Legislation to Indirectly Incorporate the UNCRC – Preferred Policy Model – October 2019
Table 2: Proposed timeline for incorporating the UNCRC
Activity | 2019 | 2020 | 2021 | 2022 | 2023 |
| Q4 | Q1 | Q2 | Q3 | Q4 | Q1 | Q2 | Q3 | Q4 | Q1 | Q2 | Q3 | Q4 | TBC |
Indirect Incorporation Milestones | October: Present preferred policy model to COM November: Launch UNCRC
e-learning module for public sector employees | January: Present findings of engagement and consultation to COM MD to commence law drafting | | | States Assembly debates draft indirect incorporation law | Appointed Day Act: Phase 1 | | | | January: Deadline for periodic reporting to UN Committee Appointed Day Act: Phase 2 | May: General Election | | | Appointed Day Act(s): Phase 3 |
Indirect Incorporation Activities | Engagement and consultation on proposed law | Form implementation team Law drafting | Law drafting Development of Children’s Rights Scheme | | Training to prepare for Phase 1 | Supporting duty-bearers | Supporting duty-bearers Training to prepare for Phase 2 | Supporting duty-bearers | Supporting duty-bearers Training to prepare for Phase 3 | Supporting duty-bearers |
It is proposed that a period of engagement regarding both the scope of the primary law and the content of the associated Children’s Rights Scheme should be held during the last quarter of 2019. This is expected to involve engagement with the Children’s Commissioner, the Care of Children in Jersey Review Panel and the States Greffe. This would target specific groups of duty-bearers, rights-holders and other stakeholders to mirror the proposed phasing, as set-out in Table 3 below:
Table 3: Overview of Consultation, Engagement and Training
WHO? | WHAT? |
Duty-bearers | Engagement and Training Activities |
Council of Ministers, individual Ministers and their delegates (Assistant Ministers and Government Departments) | - Nature of proposed duty
- Support to comply with the duty
- Proposed phasing and pace
- Implications of duty on day-to-day work
- Ministerial and Director General briefings
- General and targeted training for GoJ employees
- Creation of GoJ implementation team
|
States Members | - Nature of proposed duty
- Support to comply with the duty
- Proposed phasing and pace
- Implications of duty on day-to-day work
- States Member briefings
- General and targeted training for Greffe employees
|
All committees, panels, boards and other bodies listed in Standing Order 19 |
Public authorities, including public authorities created by statute | - Nature of proposed duty
- Support to comply with the duty
- Proposed phasing and pace
- Implications of duty on day-to-day work
- Targeted training
|
Rights-holders | Engagement and Training Activities |
Children and young people under 18 | - Content and operation of the Children’s Rights Scheme, particularly:
- Making a complaint
- How duty-bearers should engage with and consult rights-holders
|
Other stakeholders | Engagement and Training Activities |
- Children’s Commissioner
- Care of Children in Jersey Review Panel
- PPC
- Comité des Connétables
- States Greffe
- Children’s Cluster convened by CLS
- Parent groups
- General public
| - Private briefings and discussion regarding scope of proposed law
- Public consultation on policy position underpinning the proposed law
- Content and operation of the Children’s Rights Scheme
|
The Welsh Children’s Rights Scheme 2014[22] describes ‘due regard’ as follows:
“The term due regard requires a balanced consideration of issues, in this instance the articles of the UNCRC. This means that Ministers must think about how what they are doing relates to the rights and obligations in the UNCRC. In identifying any negative impact on children and young people Ministers must consider how to avoid or minimise this impact. Ministers must also consider how, by using their functions they can improve the way children and young people access their rights. Having considered this, the outcome needs to be given balanced consideration (due regard) against the other factors that the Ministers must take into account in making a decision.”
It is proposed that this definition which is predicated on a ‘balanced consideration of issues’ should comprise the starting point for delineating the due regard duty in Jersey.
In relation to the UNCRC, all children up to the age of 18 are ‘rights-holders.’ The realization of rights is the responsibility of duty-bearers; UNICEF defines duty-bearers as follows:
Duty bearers are those actors who have a particular obligation or responsibility to respect, promote and realize human rights and to abstain from human rights violations. The term is most commonly used to refer to State actors, but non-State actors can also be considered duty bearers.[23]
The rationale for the proposed groups of duty-bearers under this law is described in the preferred policy model section above. It should be noted that the extension of the UK’s ratification of the UNCRC to Jersey, means that Ministers, elected Members and Officials are already duty-bearers with a responsibility for ensuring the continued implementation of the convention. The use of the term duty-bearer in this policy model builds on this broad definition by introducing a duty to have due regard when undertaking specified activities or functions. The specific duty introduced by this law does not negate the overarching duty to implement the convention.
The proposed primary law would impose a requirement on the government to prepare, make and publish a comprehensive Children’s Rights Scheme, setting out arrangements for the purpose of securing compliance with the duty to have due regard to the UNCRC. The law would not describe the precise detail of the scheme, other than the arrangements for developing, updating and reporting on its operation. The Children’s Rights Scheme will need to be published as a user-friendly and easily amendable document and is likely to have the status of a manual, approved code of practice or scheme.
The Scheme is expected to comprise the five ‘Pillars’ described beneath, and will ensure transparency in evidencing compliance with the duty to rights-holders and the wider community. The Scheme will principally function as a toolkit of practical measures which support duty-bearers to have due regard and ensure the ongoing realization of UNCRC rights held by all children as ‘rights-holders.’
Provision of universal and targeted training will be crucial in preparing duty-bearers for each phase of implementation of the law. An e-learning module has recently been commissioned to provide an entry-level introduction to the UNCRC for all public sector employees. This will form part of the Government of Jersey’s induction programme and therefore has potential to reach around 7,000 individuals. A package of targeted training and resources will be made available in preparation for the enactment of each Phase of the law.
Children’s Rights Impact Assessment (CRIA) is a formative process which should ideally commence at the outset of policy development. The key function of CRIA is to highlight children’s rights when designing and selecting policy options. As with other impact assessment processes, the proposed Jersey CRIA will commence with an initial ‘screening’ step to quickly establish if the policy area in question has any potential impacts on children. If the likelihood of impacts is identified, this step is followed by detailed assessment and prediction of the way in which the identified policy options are expected to impact children and children’s rights; thus allowing potential enhancements or mitigations to be devised.
The full CRIA process should include consultation with children and other stakeholders including the Children’s Commissioner.[24] Undertaking CRIA enables policy officers to advise Ministers and other duty-bearers about the potential impact of policy choices. Completed CRIA also provide evidence of compliance with the duty to have due regard and demonstrate accountability and transparency when published. Although CRIA represent a best-practice approach, it should be borne in mind that duty-bearers can comply with the duty in a range of ways; CRIA will not always be appropriate or feasible in relation to the time and resources available.
As an iterative process, CRIAs should be reviewed and updated along with the law or policy they apply to. There is potential for the Jersey CRIA process to also form part of an integrated impact assessment (IIA) tool as part of a shared model of government policy development, along with a number of other types of impact assessment already in use or under consideration.
The Scheme will stipulate that a periodic report describing duty-bearers’ compliance with the duty and the steps taken to further implement the convention should be compiled and published. It is proposed that this reporting should form part of the Government of Jersey’s Annual Report and Accounts; the States Assembly Annual Report; and the normal reporting cycles of duty-bearing public authorities. The compilation of material for the Government’s Annual Report will present an opportunity to feed into policy evaluation and the commencement of each new Government Planning cycle.
It is proposed that the Minister for Children and Housing should be responsible for overseeing the submission of the compliance report, although Departmental responsibility for its compilation will need to be determined as part of the planned period of engagement and consultation. Given the limitation of resources within Government, the preparation of the report should be designed as a low-impact exercise which maximises existing sources of data. Rather than taking the form of a lengthy prose, the report could be presented as a series of dashboards or scorecards in line with Outcomes Based Accountability (OBA) performance methodology.[25]
Promotion of the convention will raise awareness of children’s rights across the community and help to cement the desired cultural change. Whilst the Children’s Commissioner and local schools and colleges enrolled in UNICEF’s Rights Respecting programme are already actively promoting the convention, there is a clear role for all duty-bearers to also undertake and support promotional activities, particularly given their specific spheres of influence.
Children, their advocates and other citizens who wish to challenge Ministerial duty-bearers regarding perceived failures to have due regard to the convention, should be able to access a fit-for purpose and child-friendly complaints mechanism. In the first instance complaints should be raised with the Minister in question, either directly or via the Government of Jersey’s Feedback process, to ensure a timely response. A complaint against a duty-bearing public authority would be initially handled through its own complaints mechanism before escalation to the Minister responsible for the entity’s relationship with the Government of Jersey, if needed. Any unresolved complaints could be progressed to an appropriate complaints board, commissioner or ombudsperson[26] and ultimately, if necessary, to judicial review.
Children and young people wanting to raise a complaint about any duty-bearer will be able to approach the Children’s Commissioner for support in accordance with Article 18 of the Commissioner for Children and Young People (Jersey) Law 2019,[27] which describes the Commissioner’s general function to provide assistance in relation to complaints. It is anticipated that the Office of the Children’s Commissioner will also address any concerns about the quality and effectiveness of due regard as part of its remit to hold duty-bearers to account.
Rights-holders and other citizens should be able to hold duty-bearers to account if they appear to have failed to have due regard to the convention in the performance of their responsibilities as identified in the law. Such a failure would be an instance of ‘maladministration’ as opposed to an infringement of a child’s rights as set-out in the convention. It is important to state that the due regard model would not provide a means for redress through Jersey’s courts as a consequence of a child’s rights being allegedly infringed or the failure of a duty-bearer to act compatibly with the convention; such matters could only be progressed under directly incorporation.
Endorsement is now sought for the preferred policy model for progressing indirect incorporation. It is proposed that all three phases should be enacted as the most robust and far-reaching means of implementing the convention and would be consistent with any future policy decision to move to direct incorporation of the UNCRC.
Legislation to Indirectly Incorporate the UNCRC – Preferred Policy Model – October 2019
The European Convention on Human Rights (“ECHR”) is an international convention for the protect human rights and political freedoms in Europe. The ECHR was directly incorporated into Jersey law by the Human Rights (Jersey) Law 2000 (the “Human Rights Law”).
The Human Rights Law gives further effect to the ECHR in Jersey law, giving a right of action and possible remedy before the Royal Court where rights are violated. The Human Rights Law makes it unlawful for a public authority to act in a way that is incompatible with a Convention right.
The Human Rights Law requires a Minister who lodges au Greffe a projet de loi (i.e. a proposition for a draft Law) to make a statement to the effect that in the Minister’s view the provisions of the draft Law are compatible with the rights set out in the ECHR, or not if the case may be (Article 16 of the Human Rights Law). In practice, a review of draft Laws is undertaken by the Law Officers’ Department and advice is provided to the Minister to enable the relevant statement to be made. The Law Officers’ Department also advise the Ministry of Justice as to compatibility of a draft Law with the ECHR as part of the process for obtaining Royal Assent. ‘Human Rights notes’, which set out the rationale for a draft Law being compatible with the ECHR are prepared by the Law Officers’ Department and are included in the draft Law’s proposition.
Legal advisers from the Law Officers’ Department may also provide human rights advice to policy officers earlier in the process, if requested, such as during the development of policy and the formulation of law drafting instructions.
Other than a duty in the Human Rights Law for public authorities to act in a manner which is compatible with the ECHR, and for Ministers to make a statement of compatibility in bringing forward draft Laws, there is no requirement, legislative, procedural or otherwise, for government policy to be actively developed and assessed in a manner that is ECHR compliant.
The Human Rights Law is direct incorporation legislation; it is not due regard legislation and, therefore, does not in itself provide for mechanisms that would operate to embed human rights at the centre of government policy making.
The journey to bring forward legislation to indirectly incorporate the UNCRC into domestic legislation started in 2014, when Jersey requested the UK to extend ratification of the convention to the Island. Jersey is consequently bound by international law to respect, protect and promote the rights guaranteed in the UNCRC for all children resident in Jersey, and is subject to the monitoring and reporting processes of the United Nations Committee on the Rights of the Child (the “UN Committee”).[28],[29]
Since 2014 there have been a number of key events which have further contributed to the commitment to progress incorporation and advance children’s rights.
In 2017, the Independent Jersey Care Inquiry (IJCI) issued its report which, among other things, placed great emphasis on developing a legislative foundation upon which to develop the wholesale changes required to services for children. The IJCI noted also that the principle of paramountcy of the child’s welfare was often paid lip service by the States of Jersey:
While we recognise that resources to support the legislative process are limited in the small jurisdiction of Jersey, it is unacceptable for the island’s vulnerable children and young people not to have their wellbeing looked after. The principle of the paramountcy of the child’s welfare is long established in children’s legislation, and lip service seems to be given to this by the States of Jersey. If the failings of the past are to be avoided, it is essential that these matters are given a prominent position in the legislative process, to ensure that the interests, safety and wellbeing of children have the most modern legislative backing.[30]
The IJCI recommended that Jersey should follow the lead of the four countries of the UK, by appointing a Commissioner for Children, who would have, “a duty to have regard to the United Nations Convention on the Rights of the Child (UNCRC), to which Jersey is now a signatory.”[31]
Jersey’s first Children’s Commission was subsequently recruited and took up post in January 2018, acting in shadow form. New primary legislation to describe the functions and powers of the Commissioner, (Draft Commissioner for Children and Young People (Jersey) Law 201- ) was debated and approved by the States Assembly on 30 April 2019.[32] The Office of the Children’s Commissioner is Jersey’s first National Human Rights Institution (NHRI).
Following the publication of the IJCI Report, the States Assembly unanimously agreed to request the Chief Minister, in conjunction with the Children’s Commissioner, to consider the desirability of giving the UNCRC a similar status to the European Convention on Human Rights in Jersey by incorporating the UNCRC into domestic legislation.[33]
In January 2019, answers to two written questions concerning the actions arising from the approval of P.63/2017 were tabled by the Chief Minister[34] and the States Employment Board.[35] These confirmed the plans to bring forward legislation to indirectly incorporate the Convention and a package of training measures.
In July 2018, following the general election, Jersey’s Chief Minister created the new role of Minister for Children and Housing, stating that: “Providing the best quality of care, protection and support to all children and young people in our community is our priority.”[36] The creation of such roles is recognised by the United Nations Committee of the Rights of the Child, in General Comment No.5 as an example of ‘child-focused and child-sensitive bodies, structures and activities,’ which are, ‘One of the satisfying results of the adoption and almost universal ratification of the Convention.’[37]
On 6 September 2018, following the independent inspection of Children’s Services the Chief Minister, Senator John Le Fondré launched an eight-point pledge to Jersey’s Children and Young people, stating:
“Children must be at the heart of everything we do and we must put children first. This Pledge to Children and Young People in Jersey recognises that the care and protection of children is not simply the responsibility of Children’s Services, but requires concerted action across the public service, and the commitment of government Ministers and States Members to make the changes that are needed. We are working together to ensure that this Pledge focuses on specific actions and outcomes rather than aspirations.[38]
The Pledge to Jersey’s Children and Young People has eight specific commitments:
- We will listen directly to children and young people and involve them in how we design, deliver and review our services
- We will provide integrated support for families that need extra help caring for their children
- We will provide all children in our care with access to a safe, loving, secure home environment
- We will expand, join up and target our early help offer to ensure that children and young people get the support they need when they need it, to prevent risk and issues from escalating
- We will recruit and retain a child-centred, stable, highly professional workforce
- We will make it easier for data and insight across organisations to be shared so that, when assessing how best to meet their needs, we look at children’s and young people’s lives as a whole
- We will ensure that sufficient funding is available to be effective and that any regulatory and legislative changes needed will be progressed swiftly
- We will set and publish clear standards and we will be held publicly to account for achieving them.
In September 2018, the Council of Ministers considered a proposal to directly incorporate the UNCRC into domestic legislation. A decision was made to progress indirect incorporation in the first instance, in parallel with an exercise to further scope the benefits and risks associated with direct incorporation of the UNCRC into domestic legislation. This assessment will inform a subsequent report to Council of Ministers which will be brought forward during the term of the current Assembly.
On 2 October 2018, the Minister for Children and Housing issued a Ministerial Decision (MD-H-2018-0020) for preparation of law drafting instructions to commence in order to incorporate (“the UNCRC”), “by introducing, among other things, a statutory duty on the States of Jersey to have due regard to the UNCRC in legislation and policy:
This decision requires government to go beyond what was originally agreed in P63/2017 which was focused on the effect of only regulations and law in relation to UNCRC.
The proposed Law would establish the UNCRC as directive principles of States of Jersey legislation, policy and practice, allowing policy-makers discretion to determine how rights are given effect, taking account of the UNCRC. This will, in effect, place an obligation on Ministers and Government to have ‘due regard’ to the UNCRC. In furthering this obligation of due regard, the Law will –
- Impose a requirement on the government to prepare, make and publish a scheme setting out arrangements for the purpose of securing compliance with the duty to give the UNCRC due regard. That scheme would provide for practical measures through which the government would comply with its legislative duty around children’s rights (e.g. how it intends to raise awareness of children’s rights, training commitments, and how children will be supported in making their voices heard).
- Require the regular publication of a report by the government on how Ministers and public authorities have complied with the duty of due regard (interval to be determined).
- Require the government to promote knowledge and understanding of the UNCRC.
- Impose a requirement for Ministers and public authorities, when developing policy, bringing forward legislation (laws, regulations and ministerial orders) or making decisions pursuant to policy or legislation (e.g. making administrative decisions pursuant to legislative requirements) to undertake and publish a Child’s Rights Impact Assessment (CRIA).
- Provide a statutory complaints mechanism for children who consider their UNCRC rights to have been infringed.
The CRIA process will be a critical means by which the government will demonstrate due regard to the UNCRC in the development of policy, legislation and practice.[39]
Following the 2018 elections the incoming Council of Ministers developed its Common Strategic Policy (CSP) which identifies ‘putting children first’ as the first of five priorities. The CSP also describes the need to progress incorporation of the UNCRC:
We will also bring forward plans to incorporate the United Nations Convention on the Rights of the Child (UNCRC). This is likely to include a scheme that introduces a Children’s Rights Impact Assessment and a comprehensive assessment of the potential impact and benefits associated with direct incorporation of children’s rights into Jersey law, as well as training and guidance on the Convention for practitioners working with children and families. [40]
In March 2019 Jersey’s new Children’s Plan was published by the Minister for Children and Housing. The Plan will be used by everyone across Government who works with children and young people to help them decide what they need to do to ensure that all children and young people:
- grow up safely
- live healthy lives
- learn and achieve
- are valued and involved.
The ambition to ‘increase the number of children who are aware of their rights under the UNCRC’ is one of four indicators selected to ensure that all children are valued and involved. ‘Protecting children’s rights’ is listed one of the Plan’s three ‘passions.’ As such, the Children’s Plan is strongly aligned with this programme of work to bring forward legislation to indirectly incorporate the Convention; effective implementation of this legislation will contribute to the success of the Children’s Plan.
The proposed Government Plan for 2020-2023 published in July 2019 included a commitment, as part of the priority to put children first, to:
Bring forward primary legislation for indirect incorporation of the United Nations Convention on the Rights of the Child, which will establish a requirement for the Government to consider and safeguard children’s rights in relation to policy, legislation and practice.[41]
This commitment establishes a mandate to develop a robust legislative model of indirect incorporation which builds on the extension of the convention to the Island in 2014. In time, this may provide a foundation for progression to the direct incorporation of the UNCRC into Jersey’s domestic legislation.
Legislation to Indirectly Incorporate the UNCRC - Preferred Policy Model – October 2019 - Appendix 2
In 2018, Deputy Mary Le Hegarat lodged P.114/2018 which sought the Assembly’s approval to repeal Article 79 of the Children (Jersey) Law 2002, in order to remove the ‘defence of reasonable corporal punishment’ of a child and implement ‘awareness-raising, guidance and training measures in respect of the prohibition of corporal punishment.’
Whilst the proposition makes reference to UNCRC, its development was outside of the Government’s policy development process.
The proposition was passed in the Assembly, obliging Ministers to bring forward the requested amendment to the Children (Jersey) Law 2002, in conjunction with the requested supportive measures. Work is now progressing within SPPP to bring forward this amendment to the primary law.
Whilst the realisation of this proposition should result in a positive impact on children, the means of enhancing this have not been scoped via a Children’s Rights Impact Assessment. It is unclear if children and other stakeholders were consulted during the development of the proposition.
In 2017 the Health and Social Security Scrutiny Panel lodged P.113/2017 to amend the Income Support Regulations by reinstating the single parent component of Income Support.
The Minister for Social Security urged Assembly members to reject the proposition, which was contrary to the Government’s policy position and ‘failed to take account of the philosophy or structure of Income Support.’
Scrutiny’s proposal was approved with a narrow margin in the States Assembly (24:21).
The proposal to reinstate the single parent component had the potential to impact children both in eligible and ineligible Income Support households. Undertaking a CRIA for this proposition would have enabled the likely impact to have been predicted and appropriate mitigations or enhancements to be made.
Stage 1 – Screening
1. What is the policy/legislation?
Summarise in 2-3 paragraphs.
2. Will aspects of the policy/legislation affect children up to the age of 18 either directly or indirectly? (Yes/No) See annex 1 for what direct or indirect impact is.
3. Are there particular groups of children and young people who are more likely to be affected than others? (Yes/No) See annex 2 for more details.
If you have answered yes to question 2 or 3 you need to complete Stage 2 and 3 of the CRIA. If you have answered no, then you do not need to complete the CRIA.
1.3.1 Screening – CRWIA Stage 1
The Screening exercise is a preliminary check on the proposed policy/measure to help determine whether a CRWIA is required, and provide a record of that decision. If the CRWIA goes no further than this stage, the completed Screening form is the document that you publish on the Scottish Government website. (SG Officials only)
Decisions about whether or not to do a CRWIA should take place as early as possible in the formation of the policy/measure. This is the best way of ensuring that children’s rights and wellbeing influence the way in which the policy develops, and that Part 1 Children and Young People (Scotland) Act 2014 duties on Scottish Ministers are met.
Who takes part in the Screening exercise depends on the complexity and potential reach of the policy/measure under consideration. It is helpful to include all policy leads who may have an interest.
Stage 1 asks you to consider four Questions:
- Name the policy and describe its overall aims.
- What aspects of the policy/measure will affect children and young people up to age 18?
The CRWIA screening asks for basic information about the policy/measure, but then asks you to consider how it will affect children and young people specifically.
- What likely impact the policy/measure will have on children and young people?
Some policies/measures will have a direct and obvious impact on children and young people. However, a policy/measure that has an indirect impact may have been developed without children in mind – and it is here that CRWIA can be of particular value and importance.
- Which groups of children and young people will be affected?
This can refer to any grouping of children or young people by a shared characteristic – not just age or setting but the circumstances in which they are living.
The impact assessment process should be proportionate - not every proposed policy that will affect children and young people will automatically require a CRWIA that goes beyond the Screening stage.
It is worth considering how significant the policy/measure is as well as the anticipated level of impact on children and young people in Scotland. Though there is no absolute threshold or test for what is ‘significant’ enough to trigger a CRWIA, you should take into account:
- The vulnerability of the groups affected by the policy/measure
- The numbers of children and young people affected by the policy/measure
- The consequences of the policy/measure for those who work with these children
- Whether a high level of resources will be committed to the policy/measure
- How high profile the policy/measure is
- Whether this is a major new direction for policy
- Whether the policy/measure will be subject to consultation
- Whether the policy/measure is in legislation
- Whether there is a lack of evidence on the way in which the policy/measure affects or could affect children and young people, including evidence from children themselves
- Whether it is difficult to anticipate what the impact will be on children and young people
If any of these are relevant, then you should do a CRWIA.
If the subject of the CRWIA is technical and will not include any exploration and assessment of the detail of a policy, the CRWIA will not provide any policy analysis so may not be required.
It is up to policy leads to decide when it is advisable to do one. The Screening form is there to enable you to provide evidence of the thinking behind your decision.
Following the Screening exercise, if you can demonstrate that your policy/measure will not have a significant impact on children and young people, then you do not need to carry out a CRWIA that goes beyond the Screening stage. However, that decision must be authorised, on record and the Screening form published on the Scottish Government website (Scottish Government only).
Legislation to Indirectly Incorporate the UNCRC - Preferred Policy Model – October 2019 - Appendix 4
[3] Optional Protocol to the Convention on the Rights of the Child (the involvement of children in armed conflict) (2000); Optional Protocol to the Convention on the Rights of the Child (the sale of children, child prostitution and child pornography) (2000).
[7] Ministerial responsibilities were most recently set-out in: R.14/2016 which is due to be updated
[8] A proposition may be lodged by – (a) a member of the States, in his or her own right; (b) the Council of Ministers; (c) any Minister; (d) the PPC; (e) the PAC; (f) a scrutiny panel; (g) the chairmen’s committee; (h) any other committee or panel established by standing orders (apart from a committee of inquiry); (i) the Comité des Connétables; (j) the States Employment Board.
[9] See Appendix 4 for examples
[10] These are: (d) the PPC; (e) the PAC; (f) a scrutiny panel; (g) the chairmen’s committee; (h) any other committee or panel established by standing orders (apart from a committee of inquiry); (i) the Comité des Connétables; (j) the States Employment Board.
[11] The need to undertake a full CRIA would be determined by the initial ‘Screening’ step. (Ministerial Orders amending legislation would also require a CRIA, although they are not lodged as Propositions.)
[13] See: Standing Order 151
[15] See footnote 11 above
[16] Rights of Children and Young Person (Wales) Measure 2011, p.1
[17] Accepted definitions of public authorities (E.g. Freedom of Information (Jersey) Law 2011) include: Ministers, the States Assembly, committees and panels established under standing orders and Government Departments, all of who are identified as duty-bearers in Phase 1 of the proposed indirect incorporation legislation.
[25] The three key OBA questions are: How many did we do? How well did we do it? Is anyone better off?
[28] The UN Committee last reported on the UK’s progress in relation to compliance with the UNCRC in 2016, which included general recommendations on the general measures of implementation of the UNCRC. This report acknowledged the ratification and extension of the UNCRC to Jersey. The next round of reporting to the UN Committee will take place in 2022.
[29] This existing obligation is described in Article 4 (Protection of rights) of the Convention: “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”
[30] Para 13.32: p60: Vol 3 of 3: Recommendations and Appendices.
[31] Para 13.8: p50: Vol 3 of 3: Recommendations and Appendices.
[33] P.63/2017 ‘United Nations Convention on the Rights of the Child: Compliance of draft Laws and training of States of Jersey employees’, and amendment P.63/2017 Amd.
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