Bill of Rights Bill: our submission to the Joint Committee on Human Rights

  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. Our Children and Young People’s Advocates Network has 400 members who work directly with children and young people in a variety of health, social care, education and custodial settings. We take our name from Article 39 of the United Nations Convention on the Rights of the Child (UNCRC), which entitles children who have suffered rights violations to recover in environments where their health, self-respect and dignity are nurtured.
  2. We have addressed those questions which are of most relevance to our charity’s goals and activities. References to ‘the Committee’ are to the Joint Committee on Human Rights.  

Relationship between the UK Courts and the European Court of Human Rights

Clause 3 of the Bill states how courts must interpret Convention rights, including by requiring them to have “particular regard to the text of the Convention right.” What would be the implications of clause 3?

  1. This provision can have only one legal purpose, which is to narrow the court’s interpretation of Convention rights to the written words chosen by those involved in drafting and adopting the treaty more than seven decades ago, and the same in respect of the subsequent Protocols. 
  2. The Explanatory Notes to the Bill set out that the requirement to have particular regard to the text of the Convention right “signals the importance” of the travaux préparatoires. There is no doubt that the documented history of the development of each of the treaty’s provisions can be helpful to the courts, but Clause 3(2)(a) puts on the face of the Bill a direct attack on the living instrument doctrine. This is regressive and dangerous. 
  3. As a charity fighting for the rights of children living in institutional settings, we are most concerned about the impact of weakening human rights protection on highly vulnerable children. It is perhaps ironic, then, that the living instrument doctrine originates from Tyrer v UK[1], which concerned the judicial birching of a 15 year-old child in the Isle of Man. The majority of the European Court of Human Rights (6-1) held that this was a breach of the boy’s article 3 rights, and the judgment states:

… the Convention is a living instrument which … must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review. [31]

Clause 3 also provides that the courts may diverge from Strasbourg jurisprudence but may not expand protection conferred by a right unless there is no reasonable doubt that the ECtHR would adopt that interpretation. What are the implications of this approach to the interpretation of Convention rights?

  1. Clause 3(3)(a) is a curious provision for a government wanting to formulate ‘British human rights’, since it seeks to use primary legislation to limit the scope of UK judges to protect human rights only so far as they consider the European Court of Human Rights would have done so. This will strait-jacket UK judges and significantly limit the protection available to children (and adults) through domestic courts. 
  2. Using primary legislation to impose judicial restraint and timidity is likely to lead to more cases having to be heard at Strasbourg, especially when there is an absence of jurisprudence for UK judges to take direction from. In this respect, we are greatly concerned that Clause 3(3)(a) has the potential to disproportionately affect children and other groups under-represented in cases already decided by the Strasbourg Court. 
  3. We highlight the case of a child who suffered prolonged solitary confinement in prison, which was heard in the UK’s Supreme Court in January 2021.[2] A 15 year-old boy (known as ‘AB’ in the proceedings) was placed on a child protection register as a six-month old baby, and then again aged six, and entered care from the age of seven and lived in multiple residential placements. ‘AB’ has learning difficulties and, from the age of six, was the subject of a statement of special educational needs. 
  4. As a detained child in Feltham young offender institution, aged 15, ‘AB’ was subjected to a ‘single unlock’ regime (removal from association) for more than 100 days between December 2016 and April 2017. The High Court found this was unlawful under prison rules and article 8 of the ECHR. 
  5. In the Supreme Court, it was argued that the prolonged solitary confinement of a child is de facto inhuman and degrading treatment and a breach of article 3, read alongside the UK’s obligations under the UNCRC. This was rejected by the Supreme Court on the basis that UK courts must be guided by Strasbourg jurisprudence, and there had been no cases concerning the solitary confinement of children before that court. Further, the Supreme Court held that it is for the Strasbourg Court to interpret and decide the relevance and application of the UNCRC, and that material published by the Committee on the Rights of the Child, the international monitoring body for the UNCRC, interpreting the different provisions of the treaty, was without legal authority. 
  6. Notwithstanding the way domestic courts have interpreted the status of Strasbourg jurisprudence, we view the Supreme Court’s deference to the European Court in this case as deeply regrettable. Thirty years after the UK ratified the UNCRC, that the UK’s highest court was seemingly unable to develop human rights protection for highly vulnerable children who are detained in conditions which cause serious psychological harm[3] should be a cause of profound concern for parliamentarians. The Bill should be an opportunity to reverse this constraint that the Supreme Court has imposed on UK courts.
  7. The state had intervened to protect ‘AB’ from violence when he was an infant, he was looked after by a local authority from his early years and provided additional educational support due to his learning difficulties (compounded no doubt by his history of trauma). His behaviour before and during incarceration showed sustained signs of serious childhood abuse. Official research indicates that it is not atypical for children in custody to have such profound needs and traumatic histories.[4] In the absence of statutory protection from solitary confinement for detained children, we consider that UK courts should have been able to determine whether such treatment amounts to a breach of article 3 read alongside children’s tailor-made protections in the UNCRC. It cannot be right that judicial decision-making around this fundamental human rights protection for children was effectively outsourced to Strasbourg. 
  8. There are substantial obstacles in the way of children seeking human rights remedies, both through the domestic courts and at Strasbourg. Children typically rely upon information and assistance from adults to know that they have suffered rights violations, and that this can be challenged. There is extensive literature showing that children in institutional settings often make assumptions that abusive treatment must be officially sanctioned (and therefore legitimate) because it is widespread and known within the establishment.[5] We remind the Committee of the High Court’s finding in January 2012 that children detained in secure training centres run by G4S and Serco had been subject to an unlawful restraint regime from when the institutions first opened until at least 2008.[6] Mr Justice Foskett observed:

I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. [88]

  1. The psychological and emotional strain on children who do go onto legally challenge mistreatment can be huge, and it is important to recognise that the passage of time for children is experienced differently from adults. Given successive abuse scandals, and the relatively few incidents of children seeking a remedy for human rights breaches through the courts as children, parliamentarians ought to be considering how to strengthen children’s access to justice, and experience of justice, rather than curtailing the interpretative powers of UK judges. The Committee on the Rights of the Child urges states parties to the UNCRC to “give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives” and has signalled how this could be achieved – through, for example, rights information in all settings, access to independent advocates and an emphasis on the right to recovery.[7] Moreover, the UNCRC’s communications procedure (which the UK has not yet ratified) permits non-governmental organisations to lodge complaints on behalf of children – this is particularly important for children living in closed institutions where fear of unfavourable treatment often prevents them from challenging human rights violations themselves. We seek an amendment to the Human Rights Act to this effect, and also urge explicit provision in the statute for claims beyond a year where an individual was, due to their age and circumstances, prevented from seeking a remedy as a child.     

Interim measures and the UK’s international obligations

Clause 24 would affect how UK courts and public authorities take account of interim measures of the ECtHR, prohibiting them from doing so in many circumstances. Is this compatible with the UK’s obligations under the ECHR and international law?

  1. The Explanatory Notes to the Bill explain that Clause 24 seeks “to ensure that the fact that an interim measure has been issued by the ECtHR does not influence domestic courts when deciding whether to grant relief that may affect the exercise of Convention rights”. 
  2. We cannot see how this complies with article 34 of the ECHR, the state’s duty “not to hinder in any way” an individual’s right to make an application to the Strasbourg Court, since the impact would be to dilute the potential effect of an interim measure in the longer-term as UK courts will be prohibited from taking into account Strasbourg jurisprudence.  
  3. Clause 24 would not diminish the impact of interim measures for individuals in the immediate instance, but knowing that UK courts would subsequently be prohibited from taking account of such measures could sap the resolve of individuals and therefore, in practice, weaken the remedy. It is tipping the scales further in the direction of government.
  4. Taking the example of Strasbourg’s temporary halting of forced removals to Rwanda (which we suspect is the reason for Clause 24), were individuals to know that this interim measure would have no bearing on their substantive hearing in the UK, the obvious risk is that some may be deterred from accessing this vital remedy because of a fatalistic belief that if terrible events are going to happen, it’s better to get them over with. 
  5. It is our general experience that children, when considering whether or not to use the law to protect their human rights, weigh up the additional stress and uncertainty of prolonging events and often feel they have no other option but to ‘accept’ their fate.  

Parliamentary scrutiny of human rights

The Government’s consultation suggested that the role of Parliament in scrutinising human rights should be strengthened. Would the Bill of Rights achieve this? How could this be achieved?

  1. The Bill of Rights would not strengthen parliamentary scrutiny of human rights; indeed, it is likely to have the reverse effect because it is built upon a narrative of rejecting the fundamental principle that all human beings have equal dignity and worth, and the universality of human rights protection. 
  2. We recommend that the Cabinet Minister responsible for human rights protection produces a report each year which sets out key developments and challenges in realising human rights in the UK, and that the report is debated in both Houses of Parliament, and subject to scrutiny by the Committee. 
  3. We further recommend that the Children’s Commissioner for England, the statutory body for children’s human rights, be required to produce a companion annual report on children’s human rights, with specific reference to the UNCRC obligations and the Committee on the Rights of the Child’s concluding observations on the UK. In addition, we propose that the Children’s Commissioner be subject to annual evidence sessions before the Committee (supplementing those undertaken by the Education Select Committee). 
  4. The Committee took a leading parliamentary role in advocating for an independent Children’s Commissioner to promote and protect the rights of children, and the lack of dialogue with this important office on children’s human rights matters is anomalous. It was hugely disappointing that the UNCRC and children’s rights generally were not mentioned once in the Education Committee’s recent evidence session with the Children’s Commissioner – either by parliamentarians or the Commissioner herself.[8]

The Bill removes the requirement in section 19 HRA for Ministers to make a statement as to whether a Government bill is compatible with human rights. What impact would this have on Parliamentary scrutiny of human rights?

  1. This will further demean respect for human rights within Parliament. It will rest with individual MPs and Peers to raise questions about the compatibility of legislation with the UK’s human rights obligations, effectively demoting human rights to a special interest area of individual parliamentarians rather than being a fundamental matter for Parliament itself. 
  2. Instead of deleting this requirement, we propose a new human rights stage in the passage of a government Bill, whereby there is detailed and considered discussion of its compatibility with domestic and international human rights obligations.  

Interpreting and applying the law compatibly with human rights

The Bill removes the requirement in section 3 HRA for UK legislation to be interpreted compatibly with Convention rights “so far as possible”. What impact would this have on the protection of human rights in the UK?

  1. 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.[9] 
  2. 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.

Clause 40 enables the Secretary of State to make regulations to “preserve or restore” a judgment that was made in reliance on section 3. Do you agree with this approach? What implications does it have for legal certainty and the overall human rights compatibility of the statute book?

  1. This is a highly dangerous provision which grants unprecedented and excessive powers to the Secretary of State to amend primary and secondary legislation. This undermines the rule of law and parliamentary sovereignty. For a period of two years, a government minister will have a completely free hand to axe or amend legislation introduced to remedy human rights breaches following judgments from the UK courts since 2000 (when the HRA came into force). 
  2. We strongly oppose this approach and give two examples below of significant children’s human rights protection which could be affected. 
  3. The case of R (C) v Secretary of State for Justice challenged the introduction of regulations that expanded the use of physical restraint on children as young as 12 detained in secure training centres (STCs), then operated by G4S and Serco. Following the appalling restraint-related deaths of two children, Gareth Myatt and Adam Rickwood, information came into the public domain showing that techniques were being used that were inappropriate, excessive, or positively forbidden. Instead of the government ensuring that the two private companies running the STCs complied with existing law, new rules were introduced which broadened the context in which restraint could be used on children. These were quashed as a breach of article 3.[10] Presumably Clause 40 would give a government minister the power to restore the 2007 regulations which gave custody officers the right to use force on children for not following orders. 
  4. In 2002, primary legislation[11] introduced a duty on local authorities to provide every child in care with an independent reviewing officer. The previous year, the Court of Appeal held that in certain circumstances a care order could be ‘starred’ by the family court so that significant failures by the local authority to fulfil its obligations towards a child in care could activate a process whereby, if necessary, the child’s case could return to court. Lady Justice Hale (as she was then) explained: “The object is simply to seek to secure that the care system is operated in such a way as to comply with the Convention rights”.[12] This was overturned by the appellate committee of the House of Lords[13] though it nevertheless influenced the subsequent legislation. Would this vital safeguard for children in care potentially be added to the ‘kill or keep’ list of legislation under review by the Secretary of State?

Clause 5 of the Bill would prevent UK courts from applying any new positive obligations adopted by the ECtHR following enactment. It also requires the courts, in deciding whether to apply an existing positive obligation, to give “great weight to the need to avoid” various things such as requiring the police to protect the rights of criminals and undermining the ability of public authorities to make decisions regarding the allocation of their resources. Is this compatible with the UK’s obligations under the Convention? What are the implications for the protection of rights in the UK?

  1. We are deeply concerned about Clause 5, which seeks to phase out the impact of the Strasbourg Court on UK law and decision-making. The post-commencement ban on any new positive obligations is likely to disproportionately disadvantage children and other groups who have not enjoyed equal prior access to the court. It is an attack on the living instrument doctrine. 
  2. Clause 5(2) seeks to diminish the courts’ interpretation of Convention rights which occurred before the Bill’s provisions commenced. Writing into the Bill that courts “must give great weight” to avoiding an interpretation of the Convention “that would have an impact on the ability of the public authority or of any other public authority to perform its functions” would, in our view, effectively take public authorities out of scope. We do not consider this to be compatible with the UK’s obligations under the Convention.  Other aspects are similarly deeply problematic, including Clause 5(2)(d) which seeks to curtail independent inquiries into human rights violations. This is of particular concern to Article 39 given continuing abuse and mistreatment in places of detention. 

Clause 7 of the Bill requires the courts to accept that Parliament, in legislating, considered that the appropriate balance had been struck between different policy aims and rights and to give the “greatest possible weight” to the principle that it is Parliament’s role to strike such balances. In your view, does this achieve an appropriate balance between the roles of Parliament and the courts?

  1. This could be persuasive in a climate of strong respect for human rights, and were the government not seeking to diminish the mechanisms that facilitate parliamentarians effectively scrutinising legislation. But this is not the context for this Bill. Clause 7 does not sit within a Bill seeking to uphold (let alone strengthen) human rights protection through the parliamentary process, and we therefore do not believe it achieves an appropriate balance between parliamentary sovereignty and the role of the courts.

Clause 12 would replace the current duty, in section 6 HRA, on public authorities to act compatibly with human rights unless they are required to do otherwise as a result of legislation. In the absence of the obligation to read legislation compatibly with Convention rights, what impact would clause 12 have on (a) individuals accessing public services and (b) public authorities?

  1. Clause 12(5) provides that an act of interpreting legislation is not part of the Clause 12 duty on public authorities to act compatibly with the Convention rights. This could severely hinder efforts to promote human rights cultures within children’s settings because public authorities could reject appeals to understand and implement their statutory duties in a way that is compatible with children’s Convention rights. Local authorities, for example, have myriad duties around the care and protection of children and supporting their upbringing within their families. These duties – under the Children Act 1989 and other legislation – are made richer and stronger when read alongside Convention rights, and we fear that both children’s access to services and their experience of services will deteriorate without this interpretative obligation. That said, we do not believe that a human rights culture has even begun to permeate the ways in which most public authorities relate to, make decisions about and provide critical services to children.   

Enforcement of human rights: Litigation and remedies

Does the system of human rights protection envisaged by the Bill ensure effective enforcement of human rights in the UK, including the right to an effective remedy (Article 13 ECHR)?

  1. No, the new permission stage hurdle in Clause 15(3) is unnecessary and it will impede children’s access to an effective remedy. Tying the domestic process to the admissibility criteria for claims before the European Court of Human Rights runs counter to the government’s narrative that this is a specially curated Bill for the UK, and its purpose is not explained in the Explanatory Notes to the Bill.

Do you think the proposed changes to bringing proceedings and securing remedies for human rights breaches in clauses 15-18 of the Bill will dissuade individuals from using the courts to seek an effective remedy, as guaranteed by Article 13 ECHR?

  1. Yes, we consider that Clauses 15-18 will dissuade individuals from using the courts. We strongly reject the ‘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 anguish.
  2. The Human Rights Act is one of the very few laws that enables survivors of child abuse within institutional settings to hold public authorities to account for failing to protect them. There is nothing in the Bill to suggest that these children were in mind during the drafting process. 

Do you agree that the courts should be required to take into account any relevant conduct of the victim (even if unrelated to the claim) and/or the potential impact on public services when considering damages?

  1. Clause 18(5)(a) creates a two-tier system of ‘deserving’ and ‘undeserving’ victims of human rights breaches. It is stark in its absence of understanding of human behaviour, particularly in respect of how individuals may respond, as children and across their adult lives, to childhood trauma and abuse. 
  2. We further strongly oppose the provision in Clause 18(6) requiring the court to give “great weight” to the impact of any award of damages on a public authority found to have violated Convention rights. This is yet another provision which appears to be aimed at dissuading children and adults from using the courts. 
  3. What it could mean, in stark, real-life terms, is that a child who has suffered sustained and serious human rights violations, who is then made aware that they have human rights which can be protected through the courts and has effective support and the courage to pursue a claim, endures months of waiting and psychological preparation, and then is finally in their mind believed and taken seriously when a court finds they have been wronged, that even at this endpoint the system is set up to force the court to give “great weight” to the child’s violator. We would struggle to explain the rationale for this to such a child, without insulting their integrity and causing distress.

Specific rights issues

Clause 6 of the Bill would require the court, when deciding whether certain human rights of prisoners have been breached, to give the “greatest possible weight” to the importance of reducing the risk to the public from persons given custodial sentences. What effect would this clause have on the enforcement of rights by prisoners?

  1. We fear that children like ‘AB’ (see paragraphs 8-12 above) will be effectively taken out of domestic human rights protection. This is a shameful provision that strikes at the heart of the universality of human rights. It gives entirely the wrong message to child and adult prisoners about their inherent dignity and their capacity as human beings to change and grow, and it also signals to prison officers and prison administrators that the people they interact with, and are responsible for, are not worthy of equal human rights protection. This is dangerous.

Clauses 8 and 20 of the Bill restrict the application of Articles 8 (right to private and family life) and 6 (right to a fair trial) in deportation cases. Do you think these provisions are compatible with the ECHR?

  1. No, these clauses are not compatible with the ECHR. They seek to make it practically impossible to challenge deportation decisions through the courts. 
  2. UK immigration legislation, particularly in relation to deportation, is arguably already incompatible with articles 8 and 6 and various UNCRC provisions, in particular articles 3, 2, 8(2), 9, 20 and 22. Clauses 8 and 20 will additionally cause great harm to children (including those in the care of the state) facing deportation for offending, and children whose parents are threatened with deportation for offending. 
  3. Introducing an “extreme harm” threshold as the only point at which a deportation provision could be potentially found to be incompatible with article 8 is shameful and in breach of the UK’s UNCRC obligations. We find it incomprehensible that the definition of extreme harm would have been drafted with actual children in mind – harm which “is exceptional and overwhelming” and “incapable of being mitigated to any significant extent or is otherwise irreversible” – and believe the government should be pressed to disclose what it expects courts to look for as evidence of extreme harm in children. 
  4. We are similarly deeply concerned that the requirement for a parent to have always had a “genuine and subsisting parental relationship” will remove many children from article 8 protection. 

[1] Tyrer v UK (1978) Application no. 5856/72

[2] R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28 

[3] The Royal College of Paediatrics and Child Health, Royal College of Psychiatrists and the British Medical Association (2018) Joint position statement on solitary confinement of children and young people. 

[4] See Department for Education and Ministry of Justice (2022) Education, children’s social care and offending. Descriptive statistics; Office for National Statistics (2022) The education and social care background of young people who interact with the criminal justice system: May 2022

[5] See the investigation, research and truth reports of the Independent Inquiry into Child Sexual Abuse: https://www.iicsa.org.uk

[6] Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin)

[7] Committee on the Rights of the Child (2003) General comment no. 5. General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6)

[8] Accountability hearing 5 July 2022 transcript: https://committees.parliament.uk/oralevidence/10550/html/

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

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

[11] Section 118 Adoption and Children Act 2002.

[12] Re S & Ors: Re W & Ors sub nom Re W & B (Children): W (Child) (Care Plan) [2001] EWCA Civ 757 [81]

[13] Re S, Re S and Others, Re W and Others (First Appeal), Re W and Others (Second Appeal) (Conjoined Appeals) [2002] UKHL 10