Response to the Youth Justice Agency’s Draft Corporate Plan

                                   Children’s Law Centre
                                              March 2006

Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, have their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/ information/ representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth@clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children's Law Centre is grateful for the opportunity to make this submission to the Youth Justice Agency (YJA) and to offer assistance and comment on its Draft Corporate Plan.

The Consultation Process
We have a number of serious concerns in relation to the consultation process which we feel we must raise, in particular, we are deeply worried about the extremely short consultation period of ten days from when the document was received, 1st March 2006, until the deadline for comment, 10th March 2006, which falls substantially short of the two month period recommended by the Equality Commission in its “Guide to the Implementation of the Statutory Duties on Public Authorities Arising from Section 75 of the Northern Ireland Act 1998”,

“…adequate time should be allowed for groups to consult amongst themselves as part of the process of forming a view. The Commission recommends a period of at least two months for consultation exercises,” (Section 4.2(c), Revised February 2005)

This is also despite the commitment in the NIO’s Approved Equality Scheme, which the YJA is bound by, to,

“In consulting representative groups of the section 75 categories the Department will aim to provide a period for response of at least eight weeks and to begin consultation as early as possible. However, exceptionally, there may be circumstances when this timescale is not feasible; and the Department has identified the following circumstances when consultation of this duration will not be possible:
o the urgent protection of life or property;
o policies responding urgently to changes in the political situation; and
o policies which must be implemented urgently to comply with a court judgement or with international obligations.
o
When this occurs it will be justified very clearly, carefully monitored, kept under review, and explained…” (4.6, NIO’s Approved Equality Scheme)

We wish to remind the YJA that the Children’s Law Centre raised these same concerns with the YJA’s in relation to the time frame for comment for the YJA’s Complaint’s Charter and Child Protection Policies consultations in December 2004 and January 2005. It would appear that the YJA has not only ignored the fact that they are bound by section 75 of the Northern Ireland Act 1998, but also has ignored the comments made by the Children’s Law Centre in earlier consultations, both in our response and in separate letters highlighting our concerns and outlining the YJA’s statutory obligations which they are continuing to fail to fulfill. While all of the consultation exercises highlighted fail to comply with the statutory time limit for consultation, in this instance, the consultation period is considerably shorter that in the case of the Complaints Charter and the Child Protection Policy consultations despite earlier assurances that contracted consultation period were exceptional to the circumstances at that time.

We fail to see how the YJA can justify such a short time frame for consultation given the stated circumstances above and the flagrant disregard shown to the Equality Commission’s Guidance and the NIO’s Equality Scheme to which the YJA subscribes. The YJA’s Corporate Plan clearly does not fall into any of the stated circumstances where consultation for the required duration is not possible as detailed above, neither does the YJA attempt to justify very clearly or explain their reasons for the short consultation period nor does it make arrangements for monitoring or review. There can be no justification for a ten day consultation period, or any consultation period which falls short of the recommended two months and the NIO’s commitment to eight weeks. Any attempt to carry out a consultation exercise such as this raises serious questions around any attempt to comply with and show any commitment to section 75 of the Northern Ireland Act 1998 and the statutory duty to have ‘due regard’ to the need to promote equality of opportunity.

Both of the YJA’s Annual Report’s to date state that,

“Section 75 of the Northern Ireland Act 1998 requires public authorities to promote equality of opportunity and good relations, to ensure that equality issues are integral to the whole range of public policy decision making. The NIO, which includes the Youth Justice Agency, has submitted its Equality Scheme to the Equality Commission for Northern Ireland. The Youth Justice Agency is fully committed to the Equality Scheme and will ensure that appropriate training is delivered to staff.” (Page 31,Youth Justice Agency Annual Report 2003-2004, Page 36 Youth Justice Agency Annual Report 2004-2005.)

In the foreword to the NIO’s Approved Equality Scheme, which the YJA states that it is fully committed to, the then Permanent Under Secretary of State, Sir Joseph Pilling stated that,

“I, together with my fellow officials, welcome the fact that the principles of openness and accountability have been made an integral part of the Department’s section 75 obligations. Consultation with representatives of and spokesmen/women for all those affected by our policies, functions and duties are central to the successful operation of the Scheme, and we welcome this contribution to the decision making process.” (Foreword, NIO’s Approved Equality Scheme)

We wish to query how the YJA can claim to be committed to the NIO’s Equality Scheme and the commitments contained within it in light of this consultation exercise which bears none of the hallmarks of openness or accountability. Following on from this, we would be grateful if you could inform us about whether and how consultation was carried out directly with children and young people on the YJA’s Draft Corporate Plan. This is particularly important not only in ensuring compliance with section 75 of the Northern Ireland Act 1998, but also in ensuring compliance with Article 12 of the UNCRC, one of the principles of the Convention - Respect for the views of the Child. In examining the government’s breach of Article 12, the UNCRC Committee recommended that the government,

“...take further steps to promote, facilitate and monitor systematic, meaningful and effective participation of all groups of children in society”. (Para 30 CRC/C/15/Add.188)

The NIO’s approved Equality Scheme, to which the YJA subscribes and is bound by, states that,

“…consideration is being given to how best to communicate information to young people and those with learning disabilities…” (4.7, NIO’s Approved Equality Scheme)

It is vital that the YJA, in fulfilling its statutory obligations and in its commitment to protecting the rights and needs of children is seen as engaging in new and more effective models of participation with children and young people. We would be grateful if the Agency would respond with details of how they have consulted directly with children and young people and how extensively this process was carried out.

In addition, we would be grateful if you would forward copies of your child accessible format of this document and also be grateful if you would also respond with details of the system which you intend to use to analyse responses to this consultation process including the degree of weight which will be attributed to both individual and organisational responses. This is a vital element to drawing conclusions from responses and progressing with identified areas for immediate action. For this reason, we would appreciate information both on the system itself and on its operation for the purposes of analysis.

“The Department will release relevant quantitative and qualitative data relating to equality issues as they affect the section 75 categories and other related documentation such as consultants’ reports. Information will be made available in consultation with the affected groups, to ensure the highest level of inclusivity in any policy decision-making.” (4.9, NIO’s Approved Equality Scheme)

We are aware that a number of NGO’s listed in the NIO’s consultation list at Annex C of its Approved Equality Scheme were not consulted in relation to the YJA’s draft Corporate Plan. We would be grateful for information relating to the Agency’s consultation list for this consultation exercise and justification as to why it differs from the list at Annex C of the NIO’s Equality Scheme. The NIO’s Approved Equality Scheme states that,

“In addition to consultation on equality impact assessments, the Department will also, from time to time, have a need to consult on legislation, strategies, reviews and other plans. Within each functional area, the bodies listed at Annex C will be included in relevant consultations of these kinds.” (4.5, NIO’s Approved Equality Scheme)

We are very disappointed to have to raise these issues in relation to the YJA’s apparent complete disregard for section 75 of the Northern Ireland Act 1998 in this consultation process. This is very disheartening given the fact that the Children’s Law Centre and nine other organisations lodged a complaint under Schedule 9 of the Northern Ireland Act 1998, stating that the NIO, the YJA’s sponsoring Department, upon introducing the Anti Social Behaviour (ASBO) legislation, did not discharge its section 75 obligations correctly. The Equality Commission, in its decision approved on 27th April 2005, found that the NIO did not apply its screening criteria correctly, did not carry out an Equality Impact Assessment despite recognising the potential for differential impact on the grounds of age and gender and did not record any reasons for its decision not to carry out an Equality Impact Assessment, failing to properly ‘consider’ as required by para 3.2 of its approved Equality Scheme. The Commission recommended that the NIO must, in order to comply with its approved Equality Scheme, undertake an Equality Impact Assessment of the ASBO policy and legislation in relation to its potential impact on children and young people. The Commission’s decision was found to be lawful in Justice Girvan’s ruling in the Matter of an Application by Peter Neill for Judicial Review 2005 No.21782 and the Equality Commission’s report and recommendations have now been laid before Parliament
It is our intention to provide constructive comment and inform this consultation process, however, it is with concern that we must again raise issues around compliance with the Agency’s statutory obligations, good practice and meaningful consultation in light of the progression of the process to date. We would be happy to meet with staff representatives from the Agency to discuss the fulfilment of the Agency’s section 75 statutory duty in future consultation processes.
We wish to state that in making our responses to the YJA’s previous consultation exercises on the Complaints Charter and Child Protection Policy we also asked for information to be provided both in our responses and in separate letters. This information was never provided and in this case we hope to have receipt of all information requested under the Freedom of Information Act 2000 within 20 working days.

We strongly advise the YJA to extend both its consultation list in accordance with the NIO’s approved Equality Scheme, by which it is bound, and also extend the timeframe for consultation responses in line with the Equality Commission’s Guidance and the NIO’s approved Equality Scheme to ensure compliance with its section 75 statutory duties. It is vitally important given the huge importance of section 75 of the Northern Ireland Act 1998 that as many people, both individuals and members of relevant organisations, are made aware of this consultation and given an appropriate chance to comment, including extensive direct consultation with children and young people as the group most likely to be impacted upon by the YJA’s Corporate Plan.

International Standards
It is our view that the YJA’s Corporate Plan, which will obviously disproportionately impact on children and young people, should be set within the framework of the UNCRC and other international standards and also should take into consideration all relevant recommendations of the United Nations Committee on the Rights of the Child. The UNCRC is a set of non-negotiable and legally binding minimum standards and obligations in respect of all aspects of children’s lives which the Government has ratified. The United Kingdom Government has therefore given a commitment to implement the terms of the Convention by ensuring that United Kingdom law, policy and practice relating to children is in conformity with UNCRC standards. The UK Parliamentary Joint Committee on Human Rights in its recent report on the UNCRC described the obligations the Convention places on government as follows;

“It should function as a set of child- centred considerations to be used by all departments of government when evaluating legislation and policy making”

We are extremely disappointed to note a complete lack of reference to the UNCRC in the YJA’s Draft Corporate Plan, in spite of the fact that it will disproportionately impact on children and young people. We wish to see the UNCRC included as the underpinning standards in the production of the final draft of the YJA’s Corporate Plan to ensure that Government’s obligations to uphold children’s rights under the UNCRC are met. The UNCRC Committee’s General Comment No. 5 states that in order to ensure that the provisions of the Convention are being fully implemented in law, policy and practice there is a need for a process of continuous child impact assessment and child impact evaluation (CRC/GC/2003/5 para.45). In order to ensure that the YJA is in compliance with its obligations under the UNCRC, we strongly advocate that child impact assessments of the Agency’s Corporate Plan are carried out as a matter of urgency to ensure that they promote and uphold the rights of children and young people as per the UNCRC.
The principles of the UNCRC are all relevant to this discussion on the YJA’s Corporate Plan. The YJA needs to ensure the rights of all children not to be discriminated against (Article 2), their best interests are upheld (Article 3), they develop to their maximum potential and extent (Article 6) and they are able to meaningfully participate in all aspects of their lives (Article 12). Article 37 of the UNCRC states that every child deprived of liberty shall have the right to prompt access to legal and other appropriate assistance and Article 40 of the UNCRC deals with the administration of juvenile justice. It states that a child in conflict with the law has the right to treatment which promotes the child’s sense of dignity and worth, takes the child’s age into account and aims at reintegration into society. The child is entitled to basic guarantees and appropriate legal or other assistance.
The UNCRC Committee’s concluding observations in 2002 recommended that the Government should ensure that the, “...best interests of the child should be the paramount consideration in all legislation and policy affecting children and young people, notably in the justice system.” (Para 26, CRC/C/15/Add.188) The Committee also recommended that the Government should take steps to ensure that legislation governing procedure in courts and administrative proceedings ensured that children capable of forming their own views had the right to express those views and that they would be given due weight (para 30, CRC/C/15/Add.188).

The Committee welcomed the youth justice initiatives which had introduced restorative justice and other constructive community based disposals for juvenile offenders, but noted with concern the low age of criminal responsibility. The Committee also expressed concern about the privacy of children involved in the criminal justice system which was not always protected (para 59, CRC/C/15/Add.188).

The Committee recommended that the Government should establish a youth justice system which fully integrates into its legislation, policies and practices the provisions and principles of the Convention, in particular articles 3, 37, 40 and 39 and all other relevant international standards. In particular the Committee recommended that the Government should significantly raise the age of criminal responsibility and ensure that the privacy of all children is protected when they come into conflict with the law in accordance with article 40 (2) UNCRC (CRC/C/15/Add.188).
There is an obvious lack of consideration of both the UNCRC and the UNCRC Committee’s concluding observations in the development of this draft Corporate Plan. We strongly advocate that the YJA should aim to address the UNCRC Committee’s concluding observations in planning its work for the next three years and that the UNCRC should be central to the development of the YJA’s Corporate Plan.
The European Convention on Human Rights, as incorporated by the Human Rights Act 1998 is also relevant to this discussion and while we note reference to the possible engagement of a number of articles within the European Convention on Human Rights (ECHR), namely Articles 6 - Right to a Fair Trial, 8 – Right to Respect for Private and Family Life, 10 – Right to Freedom of Expression and14 of the ECHR – Right to the Enjoyment of Rights and Freedoms Without Discrimination.
The YJA is also bound by the standards laid down in the Beijing Rules and the Riyadh Guidelines which make a number of very important provisions for children in conflict with the law. The Beijing Rules state that,
“4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity

Commentary

The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is whether a child, by virtue of his or her individual discernment can be held responsible for essentially anti social behaviour. If the age of criminal responsibility is fixed too low or if there is no age limit at all, the notion of responsibility would become meaningless.”

“5.1 The juvenile justice system shall emphasise the well being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offender and the offence”

“7.1 basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to presence of a parent or guardian, the right to confront and cross examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of the proceedings”

“8 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or in the process of labelling.
In principle, no information that may lead to the identification of a juvenile offender may be published”

“11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority.

11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules.

11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or his or her parents or guardians, provided that such decision to refer a case shall be subject to review by a competent authority, upon application

11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes such as temporary supervision and guidance, restitution and compensation of victims.”
Similarly, the Riyadh Guidelines emphasise the importance of preventative strategies and programmes to divert children and young people away from offending behaviour and emphasise the importance of education, family support and community based services which respond to special needs, problems, interests and concerns of young people. We wish to see adequate consideration given to all of the relevant international standards in finalising the YJA’s Corporate Plan.
General Comments
We have some concerns around the strength of the strategic aim of the YJA in relation to the use of custody. The strategic aim should seek to implement the recommendation of the UNCRC Committee and make a commitment to custody only being,

“...used as a measure of last resort and for the shortest appropriate period of time” (Para 58, CRC/C/15/Add. 188)

We wish to see the YJA’s final Corporate Plan amended to reflect this recommendation of the UNCRC Committee.

We are concerned about the apparent lack of co-ordination between the YJA’s Draft Corporate Plan and the eagerly awaited Children and Young Person’s Strategy which is due to be launched by the Children and Young People’s Unit of the Office of the First and Deputy First Minister (OFMDFM). We believe that the participation of the YJA in the development and continued roll-out of the Strategy is crucial and are pleased to note that reference is made to the Children’s Strategy in the YJA’s draft Corporate Plan.

The Children and Young People’s Strategy must set an overarching strong child rights focus for all children’s services in delivering its vision for all children and young people in Northern Ireland. However, we believe that in the development of its current Corporate Plan the YJA should explicitly demonstrate its alignment with the vision, values, outcomes and core elements of the Strategy and should demonstrate how it will support the implementation of the Strategy and deliver the outcomes which the Strategy has set for all Government Departments and agencies through its work with children and young people.
There must be an acknowledgement of the current position of children and young people and baseline disaggregated data collected so that meaningful targets can be established for the lifetime of the Corporate Plan. In addition, all indicators adopted must be child centred and based on the principles of the UNCRC; stating the effect the indicators will have on the lives of the children and young people whom it refers to with a focus on the measurement of progress. There must be an emphasis on the difference that will be made to the lives of children and young people as a result of the strategic aims and key indicators adopted. In addition, the experiences of children and young people and their families must form part of the associated indicators in order to balance quantitative and qualitative data to ensure that the reality of experience is captured and the voices of children and young people are heard.
The UNCRC Committee states that,

“Evaluation requires the development of indicators related to all rights guaranteed by the CRC” (CRC/GC/2003/5 para. 48).

The development of a system of coherent, rights based indicators must be a priority for the YJA in developing its Corporate Plan otherwise it will be impossible to properly or accurately monitor progress and evaluate its impact in terms of the advancement of children’s rights. These child rights indicators, which should include as a minimum information on compliance with the general principles of the UNCRC, should be adopted consistently across all Government and applied to the work of the YJA.

The UK Government in its report to the UNCRC Committee in 2007 will be obliged to provide a comprehensive picture of,

“...steps taken to develop mechanisms for the identification and gathering of appropriate indicators, statistics, relevant research and other relevant information as a basis for policy-making in the field of children’s rights” (Guidelines for Periodic Reports para 18).

The Children’s Law Centre and Save the Children have developed a paper on child rights indicators which is included with this response at Appendix 1.




Conclusion
The Children’s Law Centre welcomes the consultation on the Youth Justice Agency’s Draft Corporate Plan and feels that it is essential that the views expressed in this response are addressed and taken on board to ensure the provision of children’s rights within the youth justice system. We hope that the issues raised in this response are helpful and will contribute to the further development of this process. We wish to see the issues we have outlined addressed and would be happy to meet with a representative from the Youth Justice Agency to discuss anything raised in this response. We look forward to hearing from the Agency in relation to all information requested in this response under the FOI Act 2000.