Jamie-lee Hawkes - Liverpool John Moores University
This essay will discuss whether proposals to reform the Human Rights Act 1998(HRA) will weaken children’s rights. It will be argued that the reforms will weaken children’s rights through the discussion of the proposed reform of a permission stage and how that differentiates from the HRA, and how the reforms would result in the UK being isolated from the European convention on Human Rights(ECHR) and the implications that could have on children’s rights. The HRA is legislation that applies the convention rights, set out in the ECHR, into British domestic law. This enables individuals to take action in UK courts when their rights have been breached, as it places legal duties on public authorities. The HRA is primary legislation that protects everyone’s rights, including children. The proposed reform concerned is ‘The Bill of Rights Bill.’ It would repeal and replace the HRA, whilst retaining the ECHR “convention rights” but it will add new provisions.7
Permission stage
Under the current HRA, an individual can bring their case where they are a ‘victim’ of a human rights(HR) breach and they must show that they have legal merits where they have been personally affected by a decision or act. Whereas, the permission stage would mean that no proceedings can be brought by an individual in relation to an act of a public authority, unless the court has provided permission.
The Government’s intent for this proposal is to filter out “frivolous cases" to protect the value of HR’s. Similarly, the ‘permission stage’ and the HRA both hold that the court may only permit proceedings if it considers, “the person is (or would be) a victim of the act (or proposed act), and... the person has suffered (or would suffer) a significant disadvantage in relation to the act (or proposed act).” This essay argues that this test of ‘victim’ and ‘significant damage’ is already an attempt to distinguish cases, so it is considered that additional means to do so would be unnecessary. This provides that the ’permission stage’ incorporates additional complex means that would prevent accessibility to justice which has a negative impact on Article 6 ‘right to a fair trial’ as it contradicts the convention right.
Within law, there is the need to make a change for children to be treated as owners of their own rights within access to justice. Under the HRA there are no conventions specific to children, but the act protects everyone within the jurisdiction, so children arguably should have the same extent of access to justice as adults. The HRA aims to protect children by hearing the own views of the children concerned, this is enforced through Gillick’s competence, where a child’s maturity is assessed to ensure they can make their own decisions and understand the implications of their decisions. The courts apply procedural rights for children in decisions that affect their family life. Re Mabon, it was held that as children got older, it became logical for the courts to allow them to express their views regarding decision making that effects their family life. Additionally, the courts consider the best interests of the child which includes hearing the child’s own views. Re ZH (Tanzania), it was held that it should be ensured that the child’s views are heard and that they are in the centre of decision making.
The ‘permission stage’ is interpreted to weaken children’s rights, due to the accompanying barrier of permission in a system that already lacks support and recognition for children in their access to justice. The protection of children’s rights is fundamental for the argument of vulnerability, as they are physically, socially and psychological more vulnerable, because they have not yet developed skills to understand the complex legal system and they lack access to resources that would aid them in pursuing legal action to the extent of adults.
Despite the attempt and achievements of the HRA in respect of children’s access to justice, it lacks progression as there is uncertainty as to how children hear about their rights and how they are introduced to the court. In favour of the Bill, difficult access to courts may result in alternative dispute resolution(ADR), which would be favourable in children’s cases. This is crucial for children as it protects them from hostility with a quicker resolution which supports their vulnerability where they require fewer skills to understand the process in a less intimidating environment.
The Bill would be means for the Government to improve the way HRs are applied, it is described to ensure that everyone’s rights should be respected and protected directly in the UK. Regarding the problems previously outlined in the essay about the HRA access to justice, the Bill does nothing to improve the flaws in the system but instead contributes to present difficulties, due to the additional and unavoidable barrier that adds a layer of complexity, additional time and cost. As children already struggle to navigate the court system, the gatekeeping of HR cases may result in their case not being considered where it previously would have been. This would result in more cases ending up in the European Court of Human Rights(ECtHR) which would further negatively impact children’s accessibility to the courts as this hold additional cost and is an increasingly longer process.
To summarise, the ‘permission stage’ proposed under the Bill would weaken children’s rights. This is evident through the failure to consider the support needed for children when they require access to justice. It creates additional barriers that will have an impact on everyone, but it will have a deeper impact on children as they already have difficulties when trying to get justice due to their vulnerability.
Removal of requirement to consider ECtHR judgements
Under the HRA, the UK courts must consider the decisions made by the ECtHR. However, the Bill removes the requirement for the judgements of the ECtHR to be considered in HR cases, despite the decision to remain a party to the ECtHR. This does not mean that the courts must diverge from ECtHR case law. This is interpreted in a way that would discourage the UK from relying on it so that they can apply the law in their own manner.
The law solely focused on children’s rights within the UK is arguably inadequate and it lacks effective protection to cover their vulnerability, as the requirement to follow ECtHR judgment creates a sense of consistency that will be lost. The HRA solidifies the fundamental convention rights into UK law with set precedent and strong influence, so without this, there becomes uncertainty within law which has a strong impact on children as there is minimal legislation that protects children’s rights directly under UK law. Within the UK, the legislation regarding children is the Children’s Act(CA). It is arguable that this is not effective enough for children, as the Act has higher regard for the safeguarding of children rather than the sole provision of providing children with specific rights to allow then to develop through their childhood, to be free from violence and exploitation. This leads to the importance of integrating EU legislation where relying on their judgements will create further security for children under provisions that hold children as the holder of their own rights to the same extent as adults because they should be treated as people, with additional protected measures to help them succeed.
The essential piece of legislation under EU law that protects children’s rights is the Convention on the Rights of the child(CRC). The indicated legislation is significant as it targets children rights specifically, rather than putting them within the same category as adults, which is beneficial as it will address the need for extra protection of children due to their vulnerability. It recognises that specific provisions are needed for children to reach their full potential whilst holding the child’s welfare to absolute paramount. It is evident that the reliance on the CRC is effective, re R(W) v Secretary of State, where the CRC enforced there objective that the best interest and dignity of children must be protected and it worked in the best favour of the child. Therefore, the willingness to refer to ECtHR judgements is vital for children’s rights from the certainty it creates and the coherence of policies that will continue to adapt with the times and provide the necessary means for children’s right’s protection. In spite of that, the CRC is not directly implemented into UK domestic law but it is a crucial element to be relied on when UK legislation fails to make appropriate provisions, so it should not be treated as dispensable.
‘The Bill of Rights’ becomes problematic through the proposal to release the requirement to follow ECtHR judgements which infers the right for UK courts to diverge from EU legislation regarding HR. This has the potential to discourage the UK courts from interpreting Convention Rights in a way that aligns with the ECtHR interpretation, which results in isolation from the European Convention.
In relation to children, this isolation would weaken their rights as it raises the issue as to how far this isolation could expand. The statutory provisions in the UK are arguably not efficient enough to support their ownership of rights and the judgements of previous ECtHR cases are essential to ensure that children have the extensive protection.
Furthermore, HR are held to be for everyone, which endorses a sense of equality. The CRC made the point where there are too many children who face exclusion, so it is arguable that the Bill would encourage this, putting children within the UK at a disadvantage where their rights are interpreted in an inequal manner than those who are also part of the European Convention in other countries. This essay recognises that this is significant weakness, as it diminishes the extent of protection that they possibly had under the ECtHR by limiting this to the UK courts discretion. This idea that isolation will negatively impact children is supported by Stephanie Boyce, where she made a reference to children and stated that “the bill would grant the state greater unfettered power over the people, power which would then belong to all future governments.”
The current war overseas provides that there is a strong need for special protection of children’s rights in regard to armed conflict. There are enforceable mechanism under EU legislation for this protection, but the issue of political will has become apparent where the appropriate protection has not been enforced. This leads on to the point that where there already is a significant unwillingness to enforce mechanisms to protect children, the lack of requirement under The Bill increases the regularity and acceptance of unjust children HR violations.
However, this essay offers the following counter argument that there may be opportunity for growth under the flexibility of the UK courts interpretation, where there is still the possibility to pull judgements from the ECtHR. As previously outlined in this essay, this level of uncertainty and lack of framework would weaken children’s rights.
The HRA and other UK legislation referring to children does not provide enough support alone to account for their vulnerability. A sense of inequality is present when discussing the diverge from the ECtHR, which provides ideology that there will be further lack of support for children when they are subjected to a less diverse interpretation of their rights. This is problematic in consideration of making children’s rights their own. The idea of flexibility can be appealing but the decisions made under this ultimately have the strongest impact on children as they grow up with uncertainty of their rights. Regarding current global issues, it is extremely significant to unite through the European Convention to protect children that are suffering where they lack access to get the justice that they need.
Conclusion
To conclude, the Bill of Rights Bill would weaken children’s rights regarding access to justice and the removal of requirement to follow ECtHR judgements.
Access to justice is fundamental right for children within the UK. However, the permission stage introduces additional barriers, further complicating the already difficult court process for a child and there is no support provided to them in this circumstance. As previously discussed, it is encouraged within law for a child’s rights to be their own but there are strong constraints to this under current law and the permission stage enhances these difficulties, as it does not only fail to reform the current law in favour of children’s rights, but it disregards them all together.
Regarding the removal of requirement to look to ECtHR judgements, it is evident that this is a disadvantage, through the lack of support for children under the UK’s direct legislation. It is not expansive enough to be relied on solely, so the requirement to look to additional guidance is vital for ensuring that the child’s best interests are paramount. Although there are beneficial factors such as flexibility, this proves to not be effective in relation to children. Evidently, the current conflict of war, children are not receiving protection of their rights as they should be due to lack of enforcement. Consequently, the Bill impliedly weakens the extent of support to children.
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