Comments - Draft Commissioner for Children and Young People (Jersey) Law 201- 25 March 2019

STATES OF JERSEY

DRAFT COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (JERSEY) LAW 201- (P.18/2019): COMMENTS

Presented to the States on 25th March 2019 by the Chairmen's Committee

STATES GREFFE

2019  P.18 Com.

COMMENTS

Introduction

1. Subsequent to the presentation of the Independent Jersey Care Inquiry (IJCI), the previous Council of Ministers gave a commitment within P.108/2017 to appoint a Children's Commissioner and bring forward the necessary legislation to enshrine the role in Law. Deborah McMillan was duly appointed as the Children's Commissioner on 15th December 20171 and has been operating in shadow form whilst the legislation has been developed.2
2. P.18/2019,  Draft  Commissioner  for  Children  and  Young  People  (Jersey) Law 201- (hereafter "the draft Law") has been lodged by the Minister for Children  and  Housing  in  order  to  create  the  statutory  position  of  a Commissioner for Children as per Recommendation One of the IJCI.
3. As the Care of Children in Jersey Review Panel (hereafter "the Review Panel") was established to scrutinise the policy and legislative changes arising from the IJCI, it has been kept abreast of key developments in respect of the draft Law.
4. The Review Panel received a briefing on the draft Law from the Children's Commissioner and her Officers and Officers from the Department of Strategic Policy, Performance and Population on 3rd December 2018.3 At this briefing, the Review Panel was given an overview of the Law as it was then drafted, with the proviso that this would be presented to Council of Ministers for approval with lodging likely to take place in January 2019. Throughout the process further drafts were shared with the Review Panel, up until the final version which was discussed and subsequently agreed by the Council of Ministers. The draft Law was lodged on 12th February 2019.

Article 8 – Provision of Information to the Commissioner

5. The Review Panel is generally supportive of the draft Law, and agrees that it should be  adopted in order to give  the  Commissioner the  full powers to discharge the role in keeping with the recommendation made by the IJCI. It has, however,  identified  particular  concerns  about  the  drafting  of  Article 8 (Provision of Information to the Commissioner). It is important to note that the powers as set out in Article 8 of the draft Law are different from those which the Review Panel was originally briefed on.
6. In order to understand the rationale for the changes, the Review Panel wrote to the Minister for Children and Housing requesting an explanation for the final drafting. The Review Panel subsequently received a response from the Minister and agreed that further review of Article 8 of the draft Law was required. The Review Panel's letter and the Minister's response are appended to this report.
7. The Review Panel has drawn up the following terms of reference  for its review –

1 Children's Commissioner for Jersey

2 Children's Commissioner for Jersey

3 Care of Children in Jersey Review Panel minutes 2018 – p.12

1. Identify and examine whether the Commissioners powers to request information (as set out in Article 8 of the draft Law) are in keeping with the recommendations made by the Independent Jersey Care Inquiry.
2. Examine and compare the powers of the Commissioner to request information in relation to similar legislation in other jurisdictions.
3. Consult with the Children's Commissioner and her team to establish whether the powers as set out in Article 8 will allow her to effectively discharge her duties.
4. Consult with academics specialising in children's rights law and policy to gather professionally informed views on Article 8.

8. In  order  to  help  inform  its  review,  the  Review  Panel  has  written  to  the Children's Commissioner, the Commissioners for Children and Young People in England, Wales, Scotland and Northern Ireland, academics specialising in children's rights policy and law and local organisations working with children, young  people  and  their  families.  It  has  also  written  to  the  Information Commissioner for his interpretation and understanding of the changes in respect of the Freedom of Information (Jersey) Law 2011 and the Data Protection (Jersey) Law 2018.
9. In the interest of openness and transparency, and in order to give the Review Panel adequate time to conduct the review, it has communicated to the Minister for  Children  and  Housing  and  the  Children's  Commissioner  that  it  is  its intention to call in the draft Law for further scrutiny under Standing Order 72 if the principles are adopted on 26th March 2019. This will give the Review Panel additional  time  to  consider  and,  if  deemed  necessary,  bring  forward  an amendment to the draft Law. We will be proposing that the debate continues in second reading at the sitting on 30th April 2019, assuming that the principles are adopted on 26th March 2019.

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Statement under Standing Order 37A [Presentation of comment relating to a proposition]

These comments were submitted to the States Greffe after the noon deadline as set out in Standing Order 37A as additional time was required for the Chairmen's Committee to approve them. Under Standing Order 145B(4) a Review Panel must present its report to the Chairmen's Committee for approval, after which it is presented under Standing Order 145B(5) by the Chairmen's Committee and not the Review Panel.

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