Dr Ally Dunhill, Eurochild (Head of Advocacy)
On 22 June 2022, the UK Government introduced the Bill of Rights Bill, new legislation to replace the Human Rights Act of 1998. The Human Rights Act required UK courts to interpret domestic law in a manner that is compatible with the European Convention on Human Rights. If compatibility was not possible, the UK courts could deem the legislation to be inapplicable and Parliament would need to ensure its compatibility. The new Bill of Rights Bill is designed, in the words of the Government, to “restore a common-sense approach to human rights.” While a common-sense approach is typically welcomed in many endeavours, when it comes to the promotion and protection of human rights it is the terminology that represents a more insidious approach and such terminology is not intended to improve the situation.
The Bill of Rights Bill is the latest in a line of recent developments by the UK Government to limit the legal protection of human rights in the UK. These developments are part of the populist agenda being pursued by the current Government and are, unfortunately, far from surprising. The current ruling party in the UK situates its policies by reference to excluding any perceived external influence over the UK. This is most clear with Brexit and is also central to the recent developments related to human rights whereby the Government wishes to limit the interpretative powers of the courts along with limiting access to legal mechanisms in response to human rights violations. If the Bill of Rights Bill passes in its current form, the ability of victims to use the courts for rectifying human rights violations will be made more difficult. This will have an inordinate impact upon sections of society that are already marginalised when it comes to effective human rights protection, such as children, minorities, and asylum seekers.
There are two significant elements of the new Bill that will have a negative impact upon the judicial protection of human rights. The first is the introduction of a “permission stage”, which will be required before an individual can bring legal proceedings in relation to a human rights violation claim. Ironically, it appears the UK is seeking to adopt the European Convention of Human Rights framework for admissibility. Under the Convention, the European Court of Human Rights can declare an application inadmissible when the claim is manifestly ill-founded, is an abuse of rights by the applicant, or if the applicant has not suffered a significant disadvantage. This system is fairly typical at the international level regarding the admissibility of claims but at the domestic level it will be highly problematic. The Government’s intention in bringing about a “permission stage” is to lessen the amount of human rights claims before the courts. Legal proceedings are already expensive making them inaccessible to many. The introduction of another level of legal action merely to ask for permission to petition the courts clearly seeks to discourage individuals from making claims about violations of human rights.
The second major worry in the Bill is the introduction of the idea when a violation of human rights has been found by the court, any awards are dependent upon the character of the claimant. In the current form of the Bill the consideration of the claimant’s wider conduct is limited to the award of damages. However, once the issue of responsibilities is introduced into the debate about the promotion and protection of human rights it becomes a pervasive theme to the detriment of human rights. For example, in the Government’s consultation document on the Bill, they provide illustrations where individuals challenging deportation orders on the basis of family life have criminal records, and therefore this should be taken into consideration regarding their human rights claim. The purpose of the illustration is to make the case that if one violates the law they are not being a responsible member of society and therefore their claims to human rights protection can be limited. This is problematic from an ethical perspective and dangerous when put into practice.
According to the Government the new Bill of Rights will “protect people’s fundamental rights while safeguarding the broader public interest and respecting the will of elected representatives in Parliament.” It is the reference to the broader public interest that raises concerns as it will involve domestic political considerations taking priority over international obligations. In both the consultation document the Government produced in 2021 and the Explanatory Notes for the Bill it is clear the desire of the Government is to distance the legal system from upholding human rights standards equivalent to international treaties and for ensuring political policy dictated by the Government has greater influence.
In many respects the UK is returning to the constitutional arrangements that existed before the Human Rights Act (HRA) 1998. Prior to the passing of the HRA, the supremacy of Parliament was the main constitutional value and this meant that if Parliament passed a law either limiting or providing for a human right the courts had to follow the will of Parliament. This meant that the international human rights obligations of the UK that were not explicitly part of domestic law could not be relied upon to challenge government action before the domestic courts. As the UK Supreme Court explained in a 2015 case involving the UN Convention on the Rights of the Child (CRC) “it is of course trite law that, in this country at least, an international treaty has no direct effect unless and until incorporated by statute”. In the same case it was explained that while parts of the CRC may be taken into consideration to support some avenues of interpretation, the commitments of a state to an international human rights treaty “may have political consequences but are no substitute for statutory incorporation.”
With the Human Rights Act, the European Convention on Human Rights has to be taken into consideration by the domestic courts when assessing the actions of public authorities. Where the European Court of Human Rights has made use of other international treaties, such as the CRC, then the UK courts can consider children’s rights but within a confined construction. In the Government’s consultation paper about the Bill of Rights, it speaks at length as to how the European Convention system has gone too far in developing interpretations that place too many obligations upon public authorities. The consultation paper draws on selective evidence of judges criticising the progressive development of human rights protection. This leads to a claim that reflects the political nature of the Bill of Rights Bill “the UK, which has led the world on rights and liberties, should develop a constitutional jurisprudence on rights and liberties that is centred, first and foremost, around our own unique history, legal traditions and constitution.” The view that international human rights obligations need to be side-lined even further is damaging and counters any claim of being a world leader. On the positive side, in relation to children’s rights, is how national governments in the UK have made extensive use of the CRC for guiding policy, which, one can argue, refers to the CRC part of the history and legal traditions of the UK constitution.
A 2009 Bill from the House of Lords called for the full incorporation of the CRC into UK law but this never passed through the legislative process, even though the symbolism remains important. The Welsh Government adopted measures in 2004 to make the CRC the basis for all policy-making in relation to children. In 2011 The Rights of Children and Young Persons (Wales) Measure was adopted making it obligatory for ministers in the Wales government to have due regard for the rights in the CRC when exercising their functions. These obligations only apply to areas of policy where the Welsh Government has devolved powers in the constitutional system but demonstrates a strong commitment to the CRC. Across the UK the use of children’s rights impact assessments (CRIAs) is becoming more widespread and these can be used as important markers for determining the extent to which children’s rights are being taken seriously by public authorities.
A significant development came in 2021 when the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill which would require public authorities in Scotland to act in a way that is compatible with the CRC. This goes further than the Wales measure by not only ensuring that the CRC is paramount in the creation of policy by also placing legal obligations upon public authorities to adhere to the CRC. However, the UK Supreme Court has determined that the Scottish Government’s attempt at legal incorporation of the CRC was not valid. This is down to an anomaly in the UK constitutional system whereby the Scottish government is responsible for public provisions many directly related to the welfare of children but the devolution arrangements are a result of legislation passed by the UK Parliament in Westminster, which takes precedence over laws passed by the Scottish Parliament. The Scottish Government has resolved to rectify this situation but this requires negotiations between the devolved Scottish government and the UK Government and it appears this is another area where the current UK government does not wish to engage in discussions directed at supporting the promotion and protection of children’s rights.
Using courts to enforce human rights is a powerful tool but is not the only one available for ensuring the promotion and protection of children’s rights. If the new Bill of Rights legislation passes then human rights for anyone in the UK will be harder to uphold. It is clear that the current Government has minimal interest in being held accountable for its actions and the new legislation makes clear that political priorities will be used to guide judicial decision-making. At the same time, the effective promotion and protection of human rights comes from active advocacy and civil society action. Each UK nation has a Children’s Commissioner who provide strong representative for children’s rights and their activities need to receive increased support. The key dimension to the work of the Children’s Commissioners is ensuring children know about their human rights. Article 42 of the CRC calls for “the principles and provisions of the Convention to be widely known, by appropriate and active means, to adults and children alike.” In light of recent developments, it appears making the CRC more widely known to the current Government is essential.
Knowledge about human rights throughout society is the best way to keep governments in check. Of course, in situations where the human rights of children are not being respected recourse to the courts will be necessary. The UK’s desire to distance human rights from legal protection may bring short-term benefits to the current government but will not make for a secure future. Only through more engaged advocacy can we ensure children’s rights are respected, protected and fulfilled.
Dr Ally Dunhill
Head of Advocacy, Eurochild.
The views and opinions expressed are those of the author only and do not necessarily reflect those of the employer.