Children’s rights protections are in grave danger of being eroded by UK Government proposals to reform the Human Rights Act which were confirmed in the Queen’s Speech on 10 May 2022.
The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) into domestic law. The Act’s duty on public authorities to act compatibly with the ECHR has helped to mainstream human rights into policy and decision-making and fostered greater understanding and awareness of human rights. This must not be eroded. Children whose rights have been violated have been able to obtain a remedy in national courts, rather than having to go to the European Court of Human Rights in Strasbourg. That domestic accountability and justiciability has been a driver for culture change.
Earlier this month at the launch of the Council of Europe’s children’s rights strategy, the President of the European Court of Human Rights spoke about the importance of ECHR to children’s rights. Interpreting ECHR through the lens of children’s rights allows the Court to ensure that children are given the special protections they are entitled to. Judge Spanó highlighted the need for a common rights framework across Europe especially as we tackle issues such as rights in the digital environment, climate change, and the impacts of the Russian invasion of Ukraine. At the conference, governments from across Europe reiterated their commitment to children and to the human rights framework. The UK Government chose not to participate.
The UK Government now plans to replace the Human Rights Act with a weaker Bill of Rights. We are not the only human rights defenders with concerns, our response to the consultation jointly with the other devolved UK Children’s Commissioners echos concerns of all the major human rights civil society bodies.
The European Court of Human Rights has a vast body of jurisprudence on children’s rights. The case law on the right to respect for private and family life, the prohibition of inhuman or degrading treatment, the right to liberty, and to a fair trial have been particularly useful in developing our understanding of those rights.
Important aspects of Scots law have been led and influenced by ECHR rights. Particularly where governments have been slow to act. For example, the Children (Equal Protection from Assault) (Scotland) Act 2019 was the culmination of a series of cases against the UK for failure to properly protect children from physical punishment.
The ECHR has made a huge positive impact to our Children’s Hearing System. The Human Rights Act continues to drive the development of good practice as the system moves from a predominantly welfare-based model to one in which children are recognised and respected as rights holders. Following an ECHR-based challenge to the Supreme Court in 2020, changes to the Children’s Hearing system means its legislation now complies with the principles of the right to family life in relation to siblings and other family members. The Human Rights Act is a direct incorporation model. It takes the rights directly from the ECHR, and when things go wrong, it provides a remedy for rights breaches. This model protects the minimum standards but also actively encourages governments to put in place higher standards through other laws. It’s the model that we used for the UNCRC (Incorporation) (Scotland) Bill which was unanimously passed by the Scottish Parliament in 2021.
Moving away from this model in favour of the government making up its own interpretation of rights, separate from the agreements it has already made and the well-developed international infrastructure for interpreting those rights will invariably lead to retrogression. One of the fundamental principles of the law of treaties is that governments will act in good faith. The proposal to expressly permit the UK to choose not to implement European Court of Human Rights decisions against it would put the UK in clear breach of the ECHR and undermine the rule of law.
The case for incorporating rights into law is clear. In fact, the Scottish Government has committed to incorporate other international human rights treaties into law. It is the best way to ensure rights are respected, protected and fulfilled.
Scotland rightly received international praise last year when UNCRC incorporation bill was passed unanimously by the Scottish Parliament. Although, continued Scottish Government delays following the Supreme Court ruling last year that amendments were required means that children in Scotland are still waiting for their UNCRC rights to be in law. Now proposals to reform the Human Rights Act risk stripping away the ones that are there.
To celebrate the UNCRC’s 30th birthday, we asked children and young people to share their rights stories in 7 words. One child told us ‘My rights are my armour to me.’ The Human Rights Act is a strong part of that armour and must not be eroded.
This article was originally written and published for Insight, Children in Scotland’s member magazine. Find out more about Insight and how to subscribe here: Insight magazine.