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Scottish Parliament: Research Briefings: SB 03-03 Commissoner for Children and Young People (Scotland) Bill

Author(s): Scottish Parliamentary Corporate Body

Copyright holder(s): Scottish Parliamentary Corporate Body: © Scottish Parliamentary copyright material is reproduced with the permission of the Queen's Printer for Scotland on behalf of the Scottish Parliamentary Corporate Body.

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03/03 SPICe Briefing
09 January 2003

COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (SCOTLAND) BILL

NICKI GEORGHIOU

The Commissioner for Children and Young People (Scotland) Bill is a Committee Bill, introduced by Karen Gillon MSP, convenor of the Education, Culture and Sport Committee, on the 4 December 2002. The Bill resulted from an investigation and report published by the Education, Culture and Sport Committee on 14 February 2002, Report on Inquiry into the Need for a Children’s Commissioner in Scotland, (2nd report 2002, SP Paper 508). This was followed by a further report published on 3 July 2002, Report on Proposed Commissioner for Children and Young People Bill, (11th Report 2002, SP Paper 617). The proposal for a Committee Bill was debated and approved by the Parliament on 25 September 2002.

This paper will summarise the provisions of the Commissioner for Children and Young People (Scotland) Bill to inform the Stage 1 debate on 15 January 2003. For more detail on the background of the Bill and Children’s Commissioners in general please see SPICe briefing 02/104 Commissioner for Children and Young People Bill.


Key points of this briefing ... 3
Background ... 4
Timeline ... 4
Committee Bill Procedure ... 5
Provisions of the Bill ... 5
Key elements of the Bill ... 5
Financial implications ... 9
Further Information ... 11
Relevant Documents ... 11


KEY POINTS OF THIS BRIEFING
• The Committee on the Rights of the Child, which monitors how well states are meeting obligations toward the United Nations Convention on the Rights of the Child (UNROC), recommended the establishment of independent statutory offices to promote children’s rights.
• In May 2000 the Scottish Executive asked the Education, Culture and Sport Committee to consider a Commissioner for Children.
• The Education, Culture and Sport Committee conducted an inquiry into the need for a Children’s Commissioner in Scotland and published their report in February 2002. In July 2002 the committee published a report which made proposals for a Bill establishing a Children’s Commissioner for Scotland.
• The Commissioner for Children and Young People (Scotland) Bill (the Bill) was introduced to the Scottish Parliament on the 4th December 2002, by Karen Gillon MSP, convenor of the Education, Culture and Sport Committee.
• The key function of the Commissioner is to promote and safeguard the rights of children and young people.
• The Commissioner will be independent and will have regard to the views and best interests of children and young people.
• The Commissioner can undertake investigations.

BACKGROUND
In 1991 the UK government ratified the United Nations Convention on the Rights of the Child (UNROC) and reports regularly to the Committee on the Rights of the Child. The Committee has recommended, amongst other things, that the Convention be used as a guide in policy making and the establishment of independent statutory offices to promote children’s rights.

The Waterhouse report (1999) recommended a Children’s Commissioner for Wales in light of the inquiry into abuse of children in care. Internationally there are at least 18 known children’s commissioners, but as they exist in different contexts and different legal systems it is problematic to make comparisons between them.

In May 2000 the Scottish Executive sent a memorandum to the Education Culture and Sport Committee outlining some of the key issues to be considered with regard to a Commissioner for Children. The Committee agreed to conduct an inquiry into the need for a Children’s Commissioner in Scotland. The terms of reference of the inquiry were:

• To establish whether there was a need for the post of Children’s Commissioner to be established in Scotland
• To outline what the roles and responsibilities of a Scottish Children’s Commissioner should be.

Following the Executive memorandum the inquiry would also consider:
• Added value in a new office
• Avoiding duplication or overlap with existing services
• Clarification of the role and remit of a Commissioner

TIMELINE

• 23 May 2000 - Memorandum from the Scottish Executive sent to the Education Culture and Sport Committee.
• 14 February 2002 – Report on inquiry into the need for a Children’s Commissioner in Scotland Education Culture and Sport Committee’s 2nd Report, (SP Paper 508) which recommended that an office entitled “Commissioner for Children and Young People” should be established by statute.
• 3 July 2002 – Report on proposed Commissioner for Children and Young People Bill (SP Paper 617) Education Culture and Sport Committee’s 11th Report, which made proposals for the Committee Bill.
• 4 December 2002 – Commissioner for Children and Young People (Scotland) Bill Introduced by Karen Gillon MSP, Convenor for Education Culture and Sport Committee.

COMMITTEE BILL PROCEDURE
Standing Order 9.15 sets out the procedures for the pursuance of Committee Bills.

A committee may make a proposal for a Bill in relation to competent matters if it is within the committee remit, and can first conduct an inquiry into the need for a Bill. A Bill proposal must be made in the form of a committee report, setting out recommendations as to the provisions to be contained in the Bill, and explaining the need for a Bill.

The proposal is then considered by the Parliament and if approved, the convenor of the committee can instruct the drafting of the Bill, and then its introduction.

Unlike an Executive or Member’s Bill there is no evidence taking by a committee at Stage 1 because the initial inquiry conducted by the committee will have gathered evidence. The Parliament shall decide on the general principals of the Bill on January 15 2003, following which stage an ad-hoc committee may be assigned to consider the Bill at Stage 2, as specified in Standing Order 9.7.1.

PROVISIONS OF THE BILL

Key elements of the Bill
• The general function of the Commissioner is to promote and safeguard the rights of children and young people
• The Commissioner is independent
• The Commissioner should cover all children and young people up to the age of 18, and those up to the age of 21 who have been “looked after” by a UK authority
• The Commissioner should regard the best interests of children and young people as a primary consideration
• He or she should have regard to the views of children and young people on all matters affecting them in accordance with age and maturity
• The Commissioner must encourage the involvement of children and young people in his or her work
• The Commissioner can undertake investigations

The provisions of the Bill reflect the 11th report by the Education, Culture and Sport Committee which makes proposals for a Commissioner for Children and Young People (Scotland) Bill. In summary, the proposals were:

• to create a new and independent office for a Commissioner for Children and Young People in Scotland and establish the office and fundamentals of the post;
• to establish the office of Commissioner and provide detail of the fundamentals of the post; and
• that the work of the Commissioner would be informed by the views of children and young people, and that the principles of consultation, participation and accessibility would be key.

1 Establishment
Section 1 of the Bill establishes the Commissioner for Children and Young People in Scotland.

2 Appointment of the Commissioner
Section 2 outlines the conditions for appointment. These specify that:
• the Commissioner will be nominated by the Parliament and appointed by Her Majesty;
• the appointment will be for a period of five years;
• the same candidate can be appointed for a second period, whether or not consecutive, but no more than twice. Possible maximum period served is ten years; and
• if a candidate is or has been, within a year before the appointment, an MSP, MP, or MEP, they will be disqualified from appointment.

3 Removal
The Commissioner may be removed from office by Her Majesty if:
• the Commissioner resigns
• the Parliament requests it due to a breach in terms of appointment or loss of confidence in the Commissioner’s ability to carry out his or her functions.

To remove the Commissioner, the Parliament must vote by a majority of two thirds.

4 Promoting and safeguarding rights
The general function of the Commissioner is to promote and safeguard the rights of children and young people. (Section 16 provides that “children and young people” are individuals under the age of 18, and those who have been “looked after” by an authority in the UK, and will come under the Commissioner’s remit until they reach 21 years of age).

It is proposed this function will be achieved by:
• promoting awareness and understanding of the rights of children and young people, which may include providing information on specific rights and how to access assistance;
• keeping under review, law, policy and practice relating to rights, with a view to assessing the adequacy and effectiveness of such law. This could include issuing statements or reports on the impact of possible legislation;
• promoting best practice by service providers; and
• promoting, commissioning, undertaking and publishing research on matters relating to rights of children, for example research into a particular piece of legislation or policy.

5 United Nations Convention and equal opportunities
The Bill provides that the Commissioner must act in a way which encourages equal opportunities and observe equal opportunity requirements. The Bill also proposes that the Commissioner must have regard to the UN Convention on the Rights of the Child, in particular:
• regard, and encourage others to regard, the best interests of children and young people as a primary consideration; and
• have regard to and encourage others to have regard to, views of children and young people on all matters affecting them, due allowance being made for age and maturity.

6 Involving Children and Young People
The Bill provides that the Commissioner must encourage involvement of children and young people in his or her work to ensure that the work is informed by them. This is to be achieved by taking steps to:
• ensure children and young people are made aware of the functions of the Commissioner and how to communicate with the Commissioner; and
• consult children and young people and relevant organisations on work to be undertaken.

The Commissioner will also have to give priority to groups who do not have adequate means to make their views known, and prepare and keep under review a strategy for involving such children in its work. As a consequence of the annual reporting requirements in Section 10, this strategy will have to be updated annually.

7 Carrying out investigations
The Commissioner is given the power to carry out investigations into whether a service provider has regard to the rights, interests and views of children in making decisions or taking actions that affect children.

Such investigations can only be carried out if the Commissioner has considered available information and evidence, and is satisfied that the matter raises an issue of particular significance to children and that the investigation will not duplicate the work which is the function of another person.

The Commissioner may only carry out an investigation if it is a devolved matter. Any investigation must raise issues of significance to children generally or a group of children. The Commissioner cannot investigate a case which relates solely to an individual child or young person, although individual cases can be referred to as examples to inform an investigation.

8 Initiation and conduct of investigation
Before conducting an investigation the Commissioner must:
• draw up terms of reference for the investigation; and
• publish notice of the investigation and its terms of reference in a way that is accessible to those who might be affected by it.

The investigations will be carried out in public unless the Commissioner thinks it is necessary or appropriate to take evidence in private, for example when a vulnerable person is giving evidence.

9 Investigations: witnesses and documents
The Commissioner is given the authority to require witnesses and written evidence within the terms of reference of an investigation. Subsection (2) is based on section 23 of the Scotland Act and limits the Commissioner’s powers to require the giving of evidence or the production of documents from certain persons. Section 23 imposes various restrictions on the Parliament’s powers, for example, in relation to Ministers of the Crown, judges and members of tribunals.

10 Annual Report
The Commissioner must lay before the Parliament an annual report which must include:
• a review of issues identified in that year;
• a review of the Commissioner’s activity in that year, including steps taken to fulfil functions;
• any recommendations arising; and
• an overview of work to be taken in the next year, including a strategy for involving children.

The Commissioner can also include any other work areas considered relevant.

11 Reports on investigations
The Commissioner must lay before the Parliament his or her report of any investigation which must contain recommendations. A report of an investigation into activities of a person named in, or identifiable from the report, can only be laid if the person has received a draft copy and is given an opportunity to make representations on it to the Commissioner.

12 Other reports to the Parliament
The Commissioner may lay other reports before the Parliament as he or she sees fit.

13 Anonymity for children and young people
The Commissioner must ensure that a report does not name or identify any child or group of children, “so far as is reasonable and practicable”.

14 Publication
This section sets out criteria for publishing reports. All reports that are laid must be published, and any other reports covering the Commissioner’s functions can be published. Where a report is not published specifically for children it must also be published in a child friendly version, which takes account of the age, level of understanding and usual language of the child or young person who may read the report.

15 Protection from actions of defamation
This Section provides the Commissioner and staff with absolute privilege in relation to the law of defamation, which effectively bars a person’s right to pursue an action of defamation in respect of statements made by the Commissioner or staff.

Furthermore, individuals who make statements to the Commissioner or staff are protected by qualified privilege which allows them to make statements without fear of an action of defamation being made against them, provided that statements are not motivated by malice.

16 Interpretation
This Section provides a list of explanation of terms used in the Bill.

17 Commencement and short title
This Section provides that the Bill will come into force after six months of the date of Royal Assent, this is to allow for the structures, procedures, staffing and resources to be put into place.

Schedule1
Schedule 1 details the provisions concerning the status, independence, terms of appointment and general powers of the Commissioner. It also provides for general administrative matters.

Schedule 2
Schedule 2 relates to the investigations to be carried out by the Commissioner and provides further provisions on for example, giving evidence and producing documents, offences committed by witnesses who fail to provide evidence requested, and allowances and expenses.

FINANCIAL IMPLICATIONS
The Financial Memorandum, within the Accompanying Documents sets out the cost implications of the Bill.

The Commissioner will be publicly funded by the Scottish Parliamentary Corporate Body (SPCB).

The annual salary of the Commissioner has been considered in line with other posts of similar status and will attract an annual salary of up to £80,000.

Before recruiting staff and considering costs it is envisaged the Commissioner will need to create benchmarks for the level of skill required for each post. A consultant may need to be called in for specialist advice. A cost may be incurred but this is not specified.

The budget for staff numbers and costs has been based on the Commissioner for Children and Young People in Wales and the Children’s Ombudsmen in Sweden. It is suggested that a staff of 15 people would allow for the key staff required, such as: legal officer, media officer, IT specialist, financial officer, administrative staff, information officer and research/project based staffed.

It is anticipated the total cost of recruitment could be £150,000, but this would not be incurred every year as a high turnover of staff is not envisaged.

It is estimated, based on the posts required and the Scottish Parliament’s pay and grading structure, that annual salary costs will amount to £490,000. Including Pensions and National Insurance contributions this will make the total annual staff costs £650,000.

A further £10,000 is estimated for staff training per year.

The rental cost of office property is estimated to be £40,000. The cost of office equipment is estimated at £25,000 in first year, thereafter 25% of this value annually to cover upgrading.

To allow the Commissioner to be a voice for children and accessible to all children, travel costs will need to be allocated to allow for meetings, speaking at conferences at home and abroad, and fact finding trips to other countries. It is estimated that travel costs would amount to £20,000.

For the purposes of publications, events and marketing, and to allow for a variety of promotional approaches, it is estimated that in the first year the cost of this would be £325,000. This would allow for raising general awareness of the Commissioner in the first instance, thereafter the annual cost of public relations is estimated to be £200,000.

The Commissioner may find it necessary to commission research in certain areas. Based on the experience of the Parliament it is estimated that the cost of this would be £100,000 annually.

The total annual cost of the Commissioner for Children and Young People in Scotland is estimated to be £1.2million subject to a 10% margin of discretion. To allow for start up costs this figure would be closer to £1.5million in the first year.

It is not expected that Local Authorities or other bodies will incur any direct costs.

FURTHER INFORMATION
For further information on:
The aims of a Children’s Commissioner
The UN Convention on the Rights of the Child
Other bodies in Scotland which cover Children’s interests
Children’s Commissioners in the rest of the UK and internationally

Please see SPICe briefing 02/104 Commissioner for Children and Young People Bill.

RELEVANT DOCUMENTS
The Bill
Commissioner for Children and Young People (Scotland) Bill at
http://www.scottish.parliament.uk/parl_bus/bills/b71s1.pdf

Accompanying Documents at
http://www.scottish.parliament.uk/parl_bus/bills/b71s1en.pdf

References
Education, Culture and Sport Committee 2nd Report 2000 at
http://www.scottish.parliament.uk/official_report/cttee/educ-02/edr02-02-01.htm

Education, Culture and Sport Committee 11th Report 2000 at
http://www.scottish.parliament.uk/official_report/cttee/educ-02/edr02-11-01.htm

Scottish Executive, 2000, Memorandum from the Scottish Executive to the Education, Culture and Sport Committee

Waterhouse R, 1999, Lost in Care, the Report of the Tribunal Inquiry into the Abuse of Children in care in the former county council areas of Gwynedd and Clwyd since 1974

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Scottish Parliament: Research Briefings: SB 03-03 Commissoner for Children and Young People (Scotland) Bill

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