Child Poverty Bill

I rise to speak to amendments 33 and 34, tabled on behalf of the Joint Committee on Human Rights by me and the hon. Member for Hendon (Mr. Dismore), the Chairman of that Committee. The Joint Committee attempts—it generally succeeds—to analyse every piece of primary legislation that might engage human rights, and to issue a report for Parliament and the Government in which we make recommendations, particularly when we feel that the legislation has human rights compatibility issues; we also comment when the measures enhance human rights. We tend to do that before the Report stage of a Bill in the first House, to enable Parliament as a whole to consider our recommendations and debate the amendments. It is good to see the amendments being debated, although there is not always is time to do so on Report. The Joint Committee report was published on 10 November 2009. It makes it clear that the Committee welcomes the Bill and generally recognises it as a human rights enhancing measure. We also welcome the detail provided in the human rights memorandum that the Government supplied and the fact that the Government recognised, implicitly and explicitly, the role that the Bill can play in meeting our treaty obligations under the United Nations convention on the rights of the child and the United Nations convention on economic, social and cultural rights. It is good to have the opportunity to debate measures that show the value of our human rights commitments arising from the treaties and the Human Rights Act 1998, particularly in the light of the many attacks—usually based on myth—that are made on the Act in this House. The matter addressed by the Joint Committee's two amendments is that the principal duty set out in the Bill is to meet four targets defined by income-based indicators of poverty. They relate to children in what the Bill describes as "qualifying households". Those are not defined in the Bill—they are to be defined by regulations—but it is clear that they will include households that are covered by certain surveys. The report states:""The surveys currently used are based on the Small Users Postcode Address File, which includes most addresses which have postcodes and receive less than 50 items of post a day, and exclude addresses which are 'communal establishments or institutions'."" That is where our concern arises. Children who do not live in qualifying households under that definition will not be the subject of the targets. That raises the question whether they would suffer discrimination under article 14 and whether the legislation is therefore incompatible with our obligation not to discriminate under article 14 in respect of their enjoyment of other convention rights. Our argument is not that that would be a matter of direct discrimination; it clearly would not be. However, it would constitute indirect discrimination. The example we give, which has already been mentioned, is that children from disadvantaged groups—that makes it worse; it is not children generally, but children from disadvantaged groups, such as the children of asylum seekers, Gypsy, Roma and Traveller children, and children living in bed and breakfast accommodation and care homes—would not benefit under the present definition from the duty imposed on the Government to tackle child poverty according to the existing four targets, although if my hon. Friend the Member for Northavon (Steve Webb) gets his way, there will be five targets. The Joint Committee's assertion is that that would breach article 14 in respect of the enjoyment of the rights under article 1 of protocol 1, which include the right to enjoy one's possessions. There are clear examples in case law of the kind of benefits that are covered by that, and an article 8 case is also relevant. If that is a problem, we need to provide a solution. As my hon. Friend the Member for Northavon said, that will not be easy. It is not, however, the job of the Joint Committee to provide that solution. It is for the Government to propose it and for Parliament to amend it. The Joint Committee has, however, tabled two amendments that we believe go some way towards providing a solution. They would place a duty in the Bill for an effort to be made to ameliorate any discrimination that might, almost by necessity, follow from the use of the existing surveys. I shall not go through the report in detail, but it makes a number of brief arguments against the proposition that we set out in correspondence with the Government. First, we said that the Bill does not engage article 1 of protocol 1, because it sets out no specific benefits. It simply establishes a framework, and the measures in the Bill are not sufficiently determinative of any decision to allocate funds or resources to particular groups, and not therefore to others. Our view was that the measure would have to have sufficient scope of application; it would not be necessary to identify specific discrimination for article 1 of protocol 1 to be engaged. The question that is raised is whether the use of binding targets is sufficient to create this problem if a group is left out. We believe that there is a question of discrimination, which is not permitted, if some children are treated better than others particularly disadvantaged children such as those of asylum seekers, Gypsies and Travellers, and those living in bed and breakfast accommodation. We definitely think that that would be a problem. The Government have argued that no provision in the Bill would result in some children being left out, because the qualifying households will be defined in regulations. They say that there can be no argument with the Bill, because the definition will follow in the regulations. We have not accepted that argument previously, and nor have the Government, when it suits them. We state in the report:""Our concern about the compatibility with Article 14 ECHR of excluding children not in qualifying households from the targets is not affected by the fact that qualifying households will be defined in regulations rather than in the Bill itself."" We have made clear that if""the provisions in a Bill are likely to give rise to a breach of a Convention right in practice, for example because of a regulation making power that is likely to be exercised in a way which is incompatible with Convention rights"," that""is of as much concern to us as a breach on the face of the Bill."" The Government's third argument is that it is not the intention to discriminate against those children, and I certainly accept that the Government are of that view. Indeed, they point out that the duty to have a child poverty strategy will apply to all children; other parts of the Bill not affected by these amendments do not seek to discriminate. Although we support and welcome that, it does not solve the problem that part of the Bill does appear to discriminate against children. The fact that it is not the intention for the Bill to discriminate against them is not relevant; it is, as we say,""enough that it is the effect of its provisions that the children covered by the targets are prioritised over those children not caught by the data"." The fourth and final argument that we have identified the Government using is that the discrimination against children not living in qualifying households is justifiable and proportionate because it is simply not practical to conduct surveys that cover all children. We do not think that that is good enough, because we believe that efforts could be made to identify the children we are concerned about. We have made that clear in a number of places in our report.