What a privilege it was to listen to Lady Hale deliver our Observatory on Human Rights of Children Annual Lecture (online, 10th November). In her 2013 inaugural Annual Lecture for the Observatory she asked the question: Who’s afraid of Children’s Rights? This year the lecture title was equally thought-provoking, as Lady Hale asked the question: ‘What’s wrong with children’s rights?’
Lady Hale, has had a long and distinguished legal career, and has often used her position as a senior judge to champion children’s rights. Professor Elwen Evans QC, Head of the Faculty of Humanities and Social Sciences at Swansea University, introduced Lady Hale and expressed our gratitude that she was willing to share insights on children’s rights, based on her wealth and depth of experience.
Lady Hale’s ‘disappointment’ at recent UK Supreme Court decisions
Lady Hale began her lecture with the powerful and worrying observation that the ‘UNCRC has not faired well this year in the highest court in the land’ before embarking on a whistle stop tour of UK Supreme Court judgments in cases which raised children’s rights issues. Lady Hale referred to the case of ZH(Tanzania) (2011) in which she gave the leading judgment. That judgment carefully analyses how a court deciding a case involving a child should take the child’s best interests into account (in accordance with Article 3.1 of the UNCRC).
Lady Hale went on to say that having spent a career ‘gently pushing for recognition’ of children’s rights in the courts, she now has to confess ‘some disappointment’ at recent UK Supreme Court decisions. Contrasting the careful approach taken in ZH (Tanzania) with recent UK Supreme Court judgements, Lady Hale then went on to suggest that the consideration given to the issue of the child’s ‘best interests’ might have been different if she, and other past members of the Supreme Court had been involved (a particular mention was given to the late Lord Kerr).
Some cause for optimism
Last year, said Lady Hale in her lecture, ‘we celebrated the introduction of the bill to incorporate the UNCRC and its two optional protocols into Scots law.’ Noting that the Scottish Bill is modelled closely on the Human Rights Act 1998 (HRA 1998), Lady Hale commented that it gives children all the rights of the HRA 1998 but also extra rights of special protection, as it includes provisions to secure social, cultural and economic rights, and to place duties in relation to children’s rights on Scottish Ministers and public authorities exercising functions in Scotland.
However, as Lady Hale explained, after the Bill was agreed by the Scottish Parliament the UK Government asked the Supreme Court to rule on whether parts of it are unlawful. The UK Government argued that the Scottish Parliament over-stepped its powers when enacting the legislation. The Supreme Court agreed with the UK Government and declared some parts of the Scottish Bill unlawful. Lady Hale did not dwell on this, but instead pointed out that the Supreme Court justices did not raise any objection in principle to incorporation of the UNCRC into Scots law, and added that it should not be ‘beyond the wit’ of legislative drafters in Scotland to ‘cure all of the defects’ identified by the Supreme Court.
Lady Hale noted that many of the Scottish Bill’s provisions – which were not challenged by the UK Government – would encourage the sort of proactive approach to children’s rights that we see in Wales. However, the legislation in Scotland, Lady Hale commented, is much more ambitious than the Welsh law and when the drafting problems are solved it will be very exciting to observe developments in Scotland.
Despite the Supreme Court decision on the Scottish Bill, Lady Hale said ‘we are in really interesting times’ and her lecture was generally optimistic for the future of children’s rights in Scotland. Lady Hale suggested that England and Northern Ireland should both watch developments in Scotland closely. Lady Hale expressed the hope that the Bill now makes progress to provide a ‘template for what can be done to make the UNCRC a reality in UK law’. In concluding the lecture, Lady Hale emphasised:
‘So what is wrong with children’s rights at present? It is that their best interests are not yet a primary consideration in all decisions concerning them, and they should be!”
In closing: Ongoing attention to Children’s Rights in Wales
We were privileged to have Jayne Bryant MS, Chair of the Senedd Children and Young People Committee, close the annual lecture and give the vote of thanks to Lady Hale. It was very pleasing to hear Jayne confirm that the Committee will continue their strong focus on children’s rights, and will seek to listen and engage with children and young people in their work scrutinising Welsh Government policy and proposals for legislation.
Author: Dr Rhian Croke
You can access a video recording of Lady Hale’s 2021 lecture here