Human rights and children’s rights organisations across the UK have expressed their concerns to the UK Government’s proposals to replace the UK Human Rights Act 1998 (HRA 1998) [i] with a Bill of Rights. The new Bill of Rights was officially announced in the Queens Speech on May 11th
30 children’s organisations wrote to Lord Chancellor and Secretary of State for Justice and Deputy Prime Minister Dominic Rabb in advance of this announcement outlining their concerns. The Children’s Legal Centre Wales and the Observatory on the Human Rights of Children share these concerns.
The introduction of a Bill of Rights as proposed by the UK Government will seriously weaken children’s human rights protections. Since 1998, the HRA has played a crucial role in protecting and promoting the rights of the most vulnerable children living in the UK. This excellent video by the British Institute of Human Rights explains in more detail.
The HRA 1998 embeds numerous (but not all) human rights in UK law: these are the rights set out in the European Convention on Human Rights (ECHR). The HRA 1998 also gives anyone who considers that their rights have been violated the opportunity to bring their case before a court of law. This has led to numerous cases where children have relied on the courts to provide a remedy where their rights have been violated or are under threat. These cases have strengthened the protection children receive against harm and abuse in the UK and have enhanced children’s rights.
Currently Section 6 of the HRA 1998 requires public bodies in the UK to act in compliance with human rights set out in the ECHR. This means public bodies such as care institutions, publicly funded schools, local authorities, police and the youth secure estate must act in compliance with human rights obligations laid out in the legislation.
Some of the principal concerns with the UK Government’s proposals are that they will create obstacles to children’s access to the courts when public bodies fail to comply with children’s human rights, guaranteed by the ECHR. This is because the UK Government want to introduce a ‘permission stage’ at the beginning of a human rights legal case. This means that a child who has experienced a violation of their human rights will first have to demonstrate that they have faced ‘significant disadvantage’ caused by abuse of their rights. This will add a new hurdle for children who are already vulnerable and find legal processes difficult to navigate, as well as making proceedings more expensive and complicated.
As the human rights organisation Liberty has made clear, ‘anyone who brings a human rights claim is already at a significant disadvantage: they are up against the power of a public body’. This is even more challenging for a child who wishes to claim their rights.[ii]
The UK Government is also seeking to change the definition of ‘public authorities’ and this will mean that the HRA 1998 will no longer apply to private providers of public services. Currently, many institutions (e.g., children’s homes, secure training centres) are run by private providers, so it is critical children’s human rights in these institutions are also protected.
Additionally, the UK Government wants to stop courts being able to override secondary legislation that is incompatible with the ECHR. This is also very concerning because secondary legislation covers regulations that have a significant impact on many elements of children’s lives. e.g., welfare reform.
Welsh Third Sector Organisations say reforms will lead to regression in the fulfilment of human rights
All these concerns are echoed by community organisations in Wales. The WCVA prepared a detailed response to the UK Government’s that can be found here. This document argues that the HRA 1998 does not need to be changed because it is working well and that if reformed will lead to regression (reversal) in the protection and fulfilment of human rights in the UK. This coalition of organisations argue that the UK Government proposals will reduce access to justice and accountability of the UK Government and public authorities. They also explain that the UK Government’s own proposals are based on an inaccurate assessment of how the HRA 1998 operates in practice and are contrary to the findings of their own Independent Human Rights Act Review.
The WCVA highlight support for the ECHR and HRA 1998 in Wales and express concern that the UK Government’s proposals have potential to interfere with progress in Wales.
There should be a distinctive approach to human rights in Wales
The Welsh Government has also been clear in expressing their concerns regarding the UK Government’s proposal in a written statement in January this year, also pointing out that the HRA 1998 is fundamental to devolution as it is specifically mentioned in the Government of Wales Act 2006 as setting human rights standards for Welsh Ministers and the Senedd.
Detailed research into strengthening and advancing human rights and equalities was carried out by Swansea and Bangor universities for the Welsh Government in 2020-21. The research report can be found here, it sets out 40 recommendations for advancing human rights in Wales. One of the recommendations is to introduce a Human Rights Act for Wales, to incorporate human rights in addition to the ECHR into Welsh Law.
The UK Government’s announcement that they are going to push forward with their Bill of Rights, appears to have catalysed the Welsh Government into action. In a Senedd plenary debate on May 3rd 2022, Counsel General Mick Antoniw stated:
“the Welsh Government has a clear and long-standing commitment to promoting and protecting human rights. This is embedded into the founding legislation of the Welsh Government, and we are taking fresh action to strengthen and advance human rights in Wales”.
In a Welsh Government May 3rd written statement, the Minister for Social Justice said Welsh Government is
“committed to a detailed plan of action which will explore incorporating UN Conventions into Welsh law which could potentially lead to a Welsh Bill of Rights”
This contrasts with the UK Government’s regressive proposal for human rights.
Full incorporation of the UNCRC in Wales
What does this all this mean for children’s rights in Wales? Wales already has the Rights of Children and Young Person’s Wales (Measure) 2011 which places a duty on Welsh Government Ministers to have due regard to the UNCRC and its optional protocols in the exercise of all its functions. There is now a desire to go further than this to incorporate the UNCRC into Welsh Law, so that it can be relied on directly in court – in much the same way as the HRA 1998 does for the ECHR.
The UK Government proposes to take a backwards step to reduce the protection given by the HRA 1998. We feel this unwelcome development should not slow down progress in Wales, but the reality is it has potential to have a ‘chilling effect’ if Welsh Ministers decide to take a cautious approach, in case their actions are challenged by the UK Government.
Fortunately, there is no suggestion that Welsh Ministers are stepping away from their commitment to human rights – in fact, as we note above, quite the reverse. It is very welcome that the Welsh Government is standing firm in its commitment to strengthen human rights legislation in Wales.
[i] The UK legislation that enshrines the rights contained in the European Convention on Human Rights (ECHR) into UK law.
[ii] Simon Hoffman (2019), ‘The UN convention on the rights of the child, decentralisation and legislative integration: a case study from Wales’ The International Journal of Human Rights, 23:3, 374-391, see discussion and references at footnote 23, DOI: 10.1080/13642987.2018.1558978
By Dr Rhian Croke: Advocacy, Information and Strategic Litigation Lead, Children’s Legal Centre for Wales and Affiliate of the Observatory on the Human Rights of Children