Our response to the Ministry of Justice’s consultation Human Rights Act Reform: A Modern Bill of Rights

About Article 39

1. Article 39 fights for the rights of children living in state and privately-run institutions in England (boarding and residential schools, children’s homes, immigration detention, mental health inpatient units and prisons). We do this through awareness-raising of the rights, views and experiences of children; legal education; practice development; and policy advocacy, research and strategic litigation. We take our name from Article 39 of the United Nations Convention on the Rights of the Child, which entitles children who have suffered rights violations to recover in environments where their health, self-respect and dignity are nurtured.

General comments

2. Article 39 was one of more than 140 signatories to a letter to the Justice Secretary urging an inclusive process which enables disabled people to meaningfully participate in this important consultation, which could have far-reaching effects on their lives and fundamental rights.^[i] We note the twilight actions taken by government in response and the extended deadline of 19 April “only for those who would be assisted by an Easy Read or audio version in order to respond”. We still consider this timeframe to be too restrictive for those who have hitherto been unaware of the consultation. 
   
3. Further, we are not aware of any steps taken by the Ministry of Justice or the Department for Education, which has lead responsibility across government for implementing the United Nations Convention on the Rights of the Child, to make children aware of this consultation or to facilitate their effective participation, including through accessible information and creative gathering of views and experiences.
   
4. Moving to the consultation document itself,  we consider it a missed opportunity. A responsible government in an advanced democracy ought to name and celebrate the instances where the Human Rights Act has protected individuals and groups within our communities, and commit to strengthening respect for human rights, the rule of law and the accountability of power-holders. The consultation document could have provided a balanced account of the track record of the Human Rights Act reflective of the many positive changes it has brought about for children and others over the past two decades; instead it reads as a biased catalogue of reproaches and complaints. 
   
5. There is not a single proposal in the 118-page consultation document that seeks to strengthen the rights of children, either in the entitlements that children have or in the mechanisms that can enable them to claim and enjoy their rights. It is shameful that, 30 years after the UK’s ratification of the United Nations Convention on the Rights of the Child, legal proceedings concerned with the suffering of children in care are used in the consultation document to try and bolster the government’s claim that aspects of the Human Rights Act have created a ‘democratic deficit’.
   
6. It is deeply regrettable that the government has not used this consultation to acknowledge and set about tackling fundamental lacunas in the existing protection of children’s rights, as highlighted by successive concluding observations of international human rights bodies, especially the Committee on the Rights of the Child. Following every previous examination – in 1995, 2002, 2008 and 2016, the UK was urged to incorporate the principles and provisions of the United Nations Convention on the Rights of the Child into domestic law. The UK Government is due before the Committee on the Rights of the Child next year.
   
7. There is no mention in the consultation document of the effect on children in the devolved nations of successive UK governments resisting the incorporation of the United Nations Convention on the Rights of the Child. The Supreme Court’s ruling last year that the Scottish Parliament went beyond its powers in passing the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill^[ii] demands a legislative response to ensure children in Scotland get what has been promised to them by their parliament, but also to extend similar protection to children across the UK.  
   
8. While we share the government’s concern to uphold parliamentary sovereignty, a consultation on a Bill of Rights must contain candid and critical reflection of the reluctance of politicians, of varying administrations, to proactively and willingly use their parliamentary power to protect human rights. This is lacking from the consultation document. Commentary which pits Parliament against the courts therefore sometimes comes across as sentimental, grandiose and biased. Further, the consultation document fails to acknowledge the negative impact on parliamentary sovereignty of the executive’s increasing and extensive use of secondary legislation.
   
9. Children are not enfranchised and their lack of voting power inevitably disadvantages them in a parliamentary democracy. A report from the Children’s Commissioner for England in November 2020 referred to “deep-rooted institutional ambivalence” within government towards the needs of very vulnerable children in care.^[iii] If children cannot rely on their own government, then the ability to seek rights protection through the courts becomes even more vital. 

In November 2020, the Court of Appeal found that the Education Secretary had acted unlawfully in removing and reducing 65 safeguards for children in care through use of a statutory instrument without consultation with the Children’s Commissioner for England or any other children’s rights body. Article 39 brought this action because of the profound vulnerability of the children affected and the importance of the safeguards which were diminished overnight without any public consultation or parliamentary debate. Our successful litigation protected the fundamental rights of very vulnerable children while also challenging the executive’s abuse of power. Parliament had been clear in its legislation creating (and then strengthening) the role of the Children’s Commissioner for England that the rights and interests of children must be considered in the development of public policy.[iv]

10. The government will be aware that previous consultations have elicited positive support for enhancing children’s human rights protection. When the then Labour government consulted on a British Bill of Rights, it found “most support for including rights relating to children and children’s wellbeing”.^[v] The parliamentary Joint Committee on Human Rights came to a similar conclusion in its 2008 inquiry: “There is a strong case for any Bill of Rights to include detailed rights for certain vulnerable groups such as children”.^[vi] The Commission on a Bill of Rights, chaired by Sir Leigh Lewis KCB, observed in 2012 that: 

The most frequently supported candidate put forward by those advocating additional rights was for a UK Bill of Rights to explicitly incorporate the rights in other international instruments – such as the United Nations Convention on the Rights of the Child – which the UK has signed but not incorporated into our domestic law. The next most strongly supported categories were, in order of preference, socio-economic rights (including in relation to the environment) and equality rights. Of those opposed to additional rights, concerns ranged from their potential cost to the practical difficulties associated with them, with some respondents simply stating that existing rights were sufficient.^[vii]

11. The proposals set out in this consultation document would, if pursued, diminish the responsibilities of public authorities including central government to uphold the human rights of children (and adults); interfere with and limit the power of judges and independent courts when they are determining whether children (and adults) have suffered, or may suffer, rights breaches; and make it harder for children, and those acting on their behalf, to bring a legal case and seek justice. We believe that the changes proposed, when scrutinised  together, do not constitute small adjustments but amount to a fundamental assault on human rights.

^[i] https://www.libertyhumanrights.org.uk/issue/disabled-people-excluded-from-human-rights-review-mps-and-campaigners-warn/

^[ii] [2021] UKSC 42.

^[iii] Children’s Commissioner for England (November 2020) The children who no-one knows what to do with, page 2.

^[iv] [2020] EWCA Civ 1577. 

^[v] Ministry of Justice (March 2010) Rights and responsibilities: developing our constitutional framework. Summary of responses, paragraph 11.

^[vi] Joint Committee on Human Rights (August 2008) A Bill of Rights for the UK? Twenty–ninth report of session 2007–08, paragraph 145.

^[vii] Commission on a Bill of Rights (December 2012) A UK Bill of Rights? The choice before us. Volume 1, paragraph 53.

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Consultation questions

Below we answer questions in the consultation document which most relate to our charitable goals and activities.

Question 1: We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.

We cannot support either of the draft clauses as they both surrender the golden thread connecting UK courts’ protection of human rights in the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. 

We reject the government’s representation of domestic courts being subservient to the Strasbourg court. 

Restricting UK courts to a literal interpretation of words on a page of a treaty drafted decades before the comprehensive codification of children’s rights would, we fear, disproportionately impact on children (and other groups whose rights were latterly codified, such as disabled people and the advances secured through the United Nations Convention on the Rights of Persons with Disabilities). While it is vital that the ‘living instrument’ doctrine is respected, we contend that the most effective means of protecting the rights of children is through the incorporation of the United Nations Convention on the Rights of the Child.

Question 2: The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights. How can the Bill of Rights best achieve this with greater certainty and authority than the current position?

We recognise the “historical place” of the right to a jury trial as described in the consultation document though we would be concerned about any imposition of new qualifications on enjoying this right. 

Insofar as children are concerned, there is no “lawful judgment of [their] peers”^[i] since only adults can serve on a jury. This underlines the absurdity of an age of criminal responsibility as young as 10.  If a criminal court is deemed an inappropriate setting through which primary school children can be formally invited to judge the alleged conduct of their peers, then it is surely not an appropriate setting for the arbitration of young children’s conduct per se. 

^[i] Magna Carta 1215 Clause 39.

Question 4: How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?
Question 5: The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
Question 6: What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?
Question 7: Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?

The consultation document does not provide sufficient evidence to indicate that section 12 is problematic. It does not examine the specific vulnerability of children when very private information about them is put into the public domain.  

There are growing and serious concerns about ‘zero tolerance’ school environments which curtail children’s freedom of expression generally, and have a particularly injurious effect on children who are disabled and children who have experienced abuse, neglect and other forms of trauma. A comprehensive appraisal of the extent to which the Human Rights Act has helped schools become more respectful of children’s dignity and worth is much needed. We once again urge the government to meaningfully engage children in this Human Rights Act consultation and suggest that their views and experiences of human rights in the school environment would be an extremely helpful launchpad for this

Question 8: Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.
Question 9: Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard, nonetheless? Please provide reasons.
Question 10: How else could the government best ensure that the courts can focus on genuine human rights abuses?

We strongly reject the proposal for a ‘significant disadvantage’ permission threshold. Children already face insuperable barriers to claiming their human rights through the courts – because they do not know their rights to begin with; because processes are invariably designed by and in the interests of adults; because they fear repercussions; because they rely upon adults often in professional roles taking a stand against their organisations and colleagues; because the passage of time is experienced differently by children and adults; and because those who are experiencing the most serious abuses of their rights are frequently living day-to-day with unimaginable amounts of pain, fear, loss and distress, and they cannot endure any more uncertainty and anxiety.

Had children been in the mind of drafters of this consultation document, we would have expected discussion around the evident low numbers of Human Rights Act claims brought by children, particularly those who are in the care of the state, versus the known human rights breaches – as evidenced by inspectorates, inquests, inquiries, serious case reviews and other investigations. The shocking findings of the Independent Inquiry into Child Sexual Abuse, the UK’s largest public inquiry to date, would have also been within ambit – why have many thousands of children, many of them in the care of the state, for so long suffered such scandalous breaches of their fundamental human rights within so many institutional settings? While much of the public inquiry’s findings relate to non-recent abuse, it has exposed alarming failures by a wide range of public authorities to protect children today. Nevertheless, it must be acknowledged that the Human Rights Act is one of the very few laws that enables survivors of abuse or neglect to hold public authorities to account for failing to protect them. It is deeply regrettable that the consultation document makes no proposals for wider awareness-raising and human rights education, including within schools.

When the Committee on the Rights of the Child came to draft its third optional protocol on a communications procedure (which the UK is yet to ratify despite having ratified equivalent protocols attached to the Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of all Forms of Discrimination against Women), it recognised the substantial barriers stopping children accessing remedies and included provision for non-governmental organisations to make complaints on their behalf. We urge a similarly careful revision of section 7(1) of the Human Rights Act.

Question 11: How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons.

We deeply regret the government’s framing of ‘positive obligations’ as standing in the way of effective public service. Human rights positive obligations are the epitome of public service. They are crucial to securing protections for individuals’ rights through first and foremost cultural change and then, when necessary, litigation and the threat of litigation.

This part of the consultation document mistakenly contends that public authorities are compelled to carry out measures solely to mitigate the risk of costly litigation. That public authorities would positively seek to promote and protect the human rights of those they serve is lost from this narrative. Several unfounded claims are made that positive obligations cause “legal uncertainty”, “excessive burden”, “skewing operational priorities” and “costly litigation”.

We would seek to instead  focus on tackling the high number of breaches and violations of human rights by improving governance and public service delivery as well as ensuring that public authorities fully implement complementary duties, for example the public sector equality duty under the Equality Act 2010. 

There are very notable examples where positive obligations under the Human Rights Act have delivered some form of justice for individuals, families and communities in the most desperate circumstances, including the following instances.

^[i] R v Secretary of State for the Home Department (Respondent) ex parte Amin (FC) (Appellant) [2003] UKHL 51

^[ii] Case of Z and others v The United Kingdom, 10 May 2001.

^[iii] A and S (children) v Lancashire City Council [2012] EWHC 1689

^[iv] R (C) v Secretary of State for Justice [2008] EWCA Civ 882

Question 12: We would welcome your views on the options for section 3. 
Question 13: How could Parliament’s role in engaging with, and scrutinising, section 3 judgments be enhanced?Question 14: Should a new database be created to record all judgments that rely on section 3 in interpreting legislation?

Article 39 submitted a response to the independent review of the Human Rights Act and welcomed its conclusion that “there is no substantive case for [the] repeal or amendment” of section 3.^[i]

Rather than a weakening of parliamentary sovereignty, we view it as a deep demonstration of respect and deference that the courts continue to read into legislation, “so far as it is possible to do so”, the presumption that parliamentarians intend to honour and uphold human rights when making legislation. Any weakening of this presumption would degrade, not strengthen, Parliament.

We support a database of judgments that rely on section 3 in interpreting legislation. We would also support annual human rights debates in Parliament timed to mark the anniversaries of the UK ratifying international human rights instruments. So, for example, an annual children’s rights debate would take place each year on or around 16 December, the date the UK ratified the United Nations Convention on the Rights of the Child, and be led by a Cabinet Minister holding responsibility for co-ordinating implementation of this treaty. 

^[i] The Independent Human Rights Act Review, December 2021, page 181, paragraph 7.

Question 15: Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?
Question 16: Should the proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights? Please provide reasons.

We strongly oppose the proposal – which notably is not set out explicitly in the question itself – that declarations of incompatibality should be the only remedy available for secondary legislation which is incompatible with the rights in the European Convention on Human Rights. Courts must retain their power to quash secondary legislation. R (C) v Secretary of State for Justice, summarised above, is a key judgment showing the importance of this power – had the court not been able to invoke this remedy, extremely vulnerable children would have continued to be subject to severe pain and suffering.

We can envisage a limited set of circumstances when a suspended quashing order may be legitimate, however we strongly oppose any legal presumption of this. Further, we would wish to see specific reference to the potential impact on the welfare and protection of children in the matters the court must have regard to when considering whether to make a suspended quashing order. We strongly oppose the inclusion of factors such as “good administration” or the “interests or expectations of persons who have relied on the impugned act”^[i] being included in any such list.

We strongly oppose prospective quashing orders given the denial of justice to the claimant themselves. This also deliberately designs in, and seeks to legitimise, the unequal treatment of individuals who have suffered the same, or very similar, rights violations.

^[i] Both of these opt-outs currently appear in the Judicial Review and Courts Bill.

Question 17: Should the Bill of Rights contain a remedial order power? In particular, should it be: a. similar to that contained in section 10 of the Human Rights Act; b. similar to that in the Human Rights Act, but not able to be used to amend the Bill of Rights itself; c. limited only to remedial orders made under the ‘urgent’ procedure; or d. abolished altogether? Please provide reasons.

We support the preservation of section 10 of the Human Rights Act, as currently drafted, on the basis that any responsible government would wish to have powers to take remedial action. 

The consultation document reports that 11 remedial orders have been made under the Human Rights Act since 2000, with the majority (8) being non-urgent. Reducing Ministerial power to make remedial orders in non-urgent cases appears to be founded on the practice having taken one or two years previously. It is disingenuous to claim this is comparable to the ordinary legislative process since Bills are preceded by Green and White Papers and individual government departments have to be allotted parliamentary time / a Bill slot.

Question 20: Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.
Question 21: The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer? Please explain your reasons.
Option 1: provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or
Option 2: retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3.

We support the maintenance of the existing definition of acts of public authorities. 

Both options to amend section 6(2) serve to give more power to public authorities to the potential detriment of those who are suffering, or at risk of suffering, rights violations. We cannot support them. 

Awareness-raising of the positive impact of the Human Rights Act on the cultures and practices of public authorities would give UK citizens – children and adults alike – more confidence in raising concerns and challenging actions or decision-making which harms them. 

Question 24: How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective? Please provide reasons.
Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment.
Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.
Option 3: Provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.

We reject the narrative that human rights claims are frustrating deportations. We are particularly disturbed by the lack of care and attention given within the consultation document to the importance of preserving children’s relationships with their parents and other family members. Lady Hale’s observations in ZH (Tanzania) are apposite here:

We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that.^[i] [Emphasis added]

^[i] [2011] UKSC 4 [33].

Question 26: We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include: a. the impact on the provision of public services; b. the extent to which the statutory obligation had been discharged; c. the extent of the breach; and d. where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation.Which of the above considerations do you think should be included? Please provide reasons.

We are not persuaded of the need for statutory provisions around the amount of damages to be awarded for human rights breaches, or setting out in legislation the circumstances when such awards can be made. 

Question 27: We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options could best achieve this? Please provide reasons.
Option 1: Provide that damages may be reduced or removed on account of the applicant’s conduct specifically confined to the circumstances of the claim; or
Option 2: Provide that damages may be reduced in part or in full on account of the applicant’s wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered.

We firmly reject this proposal which would have the effect of creating a two-tier system of ‘deserving’ and ‘undeserving’ victims of human rights breaches. Both options fundamentally undermine the universality of human rights and give a veneer of respectability to making remedies contingent on a person’s alleged conduct and perceived character. 

Section 8(3) of the Human Rights Act is already clear that there is no presumption that damages will be awarded unless necessary and taking account of all the circumstances of the case.

The narrative and selection of cases cited exploit tribalism, racism, xenophobia and anti-asylum rhetoric; the antithesis of a human rights approach. This proposal fails to consider the potential impact on the most vulnerable people in society, including those who have endured abuse and other trauma in childhood. There is no simple dividing line between victims and perpetrators of crime. One in every five people (n=219) who spoke to the Independent Inquiry into Child Sexual Abuse’s Truth Project reported that involvement in offending was one of the impacts of the abuse they suffered as children.^[i] Research for the Youth Justice Board found that up to 92 percent of children in custody had previously suffered abuse or neglect.^[ii]Over half (56%) of sentenced children in 2018/19 were currently or formerly officially classed as a child in need under the Children Act 1989.^[iii]

^[i] Independent Inquiry into Child Sexual Abuse (2017) Victim and survivor voices from The Truth Project.

^[ii] Youth Justice Board (2008) A literature review into children abused and/or neglected prior to custody. 

^[iii] Ministry of Justice / Youth Justice Board (2020) Assessing the needs of sentenced children in the youth justice system 2018/19, England and Wales.

Question 29: We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular: a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate; b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate; andc. How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.

Rather than proposing a ‘modern’ Bill of Rights, which builds upon existing obligations in domestic and international law, the government is seeking to substantially weaken the Human Rights Act by removing the elements it finds challenging, unpalatable and a nuisance. This will disproportionately harm those individuals and communities who are already most marginalised.

By seeking to remove protections from individuals and communities deemed to be ‘undeserving’, and making it harder for all to challenge public authorities, the proposals risk creating an ever-widening divide between power-holders and those directly affected by their decision-making. Everyone loses out from this. As previously stated, there is no indication within the consultation document that the particular needs and rights of children have been considered. In particular, no credible explanation has been given as to why economic, social and cultural rights should continue to be kept outside domestic human rights legislation, which is a great disservice to the 4.3 million children who currently live in poverty in the UK.

8 March 2022