6. Memorandum from the Children's
Rights Alliance for England
ABOUT CRAE
The Children's Rights Alliance for England ("CRAE")
is an alliance of over 380 voluntary and statutory organisations
committed to the full implementation of the United Nations Convention
on the Rights of the Child ("CRC").
Our mission is to transform the lives and status
of childreni in England by lobbying for laws and policies to be
fully compliant with children's human rights, monitoring Government
action on implementing the CRC and other human rights instruments,
and disseminating children's rights information to the public.
Our response to this inquiry focuses on the
crucial importance of a British Bill of Rights which addresses
children's distinct need for rights protection by incorporating
the CRC.
INCORPORATION OF
THE CRC—OVERVIEW
We very much welcomed the 2002-03 examination
by the Joint Committee on Human Rights ("JCHR") of the
Concluding Observations made by the UN Committee on the Rights
of the Child in October 2002 on the UK Government's 1999 periodic
report.
We submitted written and oral evidence to that
inquiry, and welcomed your expression of support for incorporation
of the Convention into UK law in your Tenth Report of that session.
Your comments followed the UN Committee's recommendation in its
2002 Concluding Observations for full incorporation of the CRC
into UK law. ii
Responding to comments made by the then Minister
for Children and Young People that the Government was "not
looking to incorporate the Convention or, indeed, individual elements
of it" and that it "is really framed, virtually all
of it, in very aspirational language and not in the sort of language
that seems easy to put into primary legislation ...", iii
the JCHR stated:
"... We do not accept that the goal of incorporation
of the Convention into UK law is unrealisable. We believe the
Government should be careful not to dismiss all the provisions
of the Convention on the Rights of the Child as purely `aspirational'
and ... we firmly believe that children will be better protected
by incorporation of at least some of the rights, principles and
provisions of the Convention into UK law.
In view of the general importance of this issue,
we intend to examine further the possibilities for incorporation
of the CRC and other unincorporated human rights instruments.
We believe that the assent of Parliament to these rights and principles,
which could be secured by incorporation, would be a positive step
towards enlarging and reinforcing the `culture of respect for
human rights' which we wish to see in the UK, as well as enhancing
their democratic legitimacy".iv
We welcomed the above comments, including your
commitment to examine incorporation further. The Government's
response indicated a willingness to consider the merits of incorporation:
"... we look forward to seeing practical
suggestions for how this might be achieved".v
Less than six months after the JCHR's report,
the All-Party Parliamentary Group for Primary Care and Public
Health issued a report on children's policy that advocated full
incorporation of the CRC. This group of MPs and Peers argued that
incorporation "would provide a means for children, young
people and their advocates to challenge any failures to consider
their needs or respect their rights within the British courts".vi
We would also draw your attention to the UN
Committee's "general measures general comment",vii quoted
in response to question 2(f) below, in which practical suggestions
for the full incorporation of the CRC are set out. It seems highly
likely that the UN Committee will make similar recommendations
to the UK Government following its forthcoming examination in
autumn 2008.
We believe incorporation of the CRC is long
overdue, and that a British Bill of Rights that enhances current
UK rights protection would create an ideal opportunity for incorporation
of the CRC in order to address the distinct needs of children.
We urge the JCHR to develop its position in this light.
We would welcome the opportunity to expand upon
our submissions in oral evidence, as we did in the JCHR's earlier
inquiry into the CRC.
1. IS A
BRITISH BILL
OF RIGHTS
NEEDED?
(a) Do you think there should be a British
Bill of Rights? Please explain the reasons for your view?
The development of a British Bill of Rights
presents a unique and very welcome opportunity for increasing
the protection of children's fundamental rights and freedoms by
incorporating them into UK law in the strongest possible way—entrenched,
so that they cannot be undone by future governments, and enforceable
by UK courts.
It is 16 years since the CRC was ratified by
the UK. However, there is a continuing and unacceptable failure
by the UK Government to uphold the rights and freedoms contained
within it, and to withdraw the reservations it has made in relation
to child immigrants and children in detention. Despite an increasing
political commitment to children, there is continuing resistance
to a rights-based approach. Courts are not making sufficient use
of the CRC in their decision-making, and many children, parents
and professionals are unaware of the Convention's existence.
We are deeply concerned about current media
and political hostility to UK human rights legislation, particularly
as it relates to children. Within the human rights community itself,
concerns have been raised by some that the Human Rights Act 1998
("HRA") has not had enough time to bed down, and that
efforts should be focused on championing the HRA before embarking
on a discussion about a Bill of Rights which may be dominated
by media and political pressure to weaken the protection currently
provided by the HRA. We understand these concerns but believe
the opportunity should be seized to strengthen the human rights
of everyone living in Britain, especially children.
Concerns about the potential dilution of existing
justiciable human rights are to some extent borne out by the Government's
proposal, in its recent Green Paper The Governance of Britain
for a "Bill of Rights and Duties" and its focus on citizenship.
The Government proposes, for example, that young people may be
required to undergo "citizenship ceremonies" upon reaching
18 years, implying that under 18 year olds are not citizens.
We are fundamentally opposed to this proposal
and seek a British Bill of Rights giving rights protection that
is not contingent on compliance with responsibilities, and is
available to all from birth, regardless of immigration status.
The process of creating a British Bill of Rights
presents the opportunity for a wide-ranging, well-informed and
positive public debate on human rights.
(b) What would be the purpose of a British
Bill of Rights?
The creation of a British Bill of Rights that
incorporates the CRC is crucial to provide adequate protection
to children's rights in the UK. While the CRC has important influence,
the UK's 11 million children currently have no mechanism to enforce
their rights under this treaty. Many of those rights go beyond
protection provided by the HRA and at common law which, in any
event, are not entrenched rights and are of limited effect (the
Courts do not presently have the power to strike down incompatible
legislation).
Incorporating the CRC into a British Bill of
Rights would give children entrenched, inalienable and enforceable
rights, with the potential to effect real change for the better.
As with other British residents, these rights would belong to
the child, rather than be reliant upon their circumstances or
the setting they are in. Children are especially vulnerable to
their rights being dependent upon their circumstances rather than
belonging to them, be they at home, school, looked after by the
state or in custody or immigration detention. For example, children
have full legal protection from corporal punishment in school,
in care and in health settings but not in the family home and,
since the recent changes to secure training centre rules, viii
not in all custodial settings. The right to participate is embedded
in health, social care and local government legislation but not
in education. Children in care have rights in relation to family
contact that children detained in custody do not. A Bill of Rights
would make children's rights portable—travelling with them
at all times.
(c) What would a British Bill of Rights add
to the protection for human rights already provided by the Human
Rights Act?
The HRA provides some protection to children's
rights as its provisions apply to children and adults equally.
However, it fails to address many of children's distinctive needs.
Further, it does not adequately protect individuals" social,
economic or cultural rights.
As well as providing "mainstream"
protection for the rights of children together with adults (as
in the HRA), a British Bill of Rights must provide distinct protection
for children's rights by incorporating the CRC. To the extent
that the Convention's provisions overlap with those of the HRA,
ix children's rights should be "levelled up" in the
Bill of Rights, to provide the maximum protection.
The CRC confirms that children are people with
an equal right to that of adults to express their views and be
heard. Lacking the right to vote, children merit special attention
to their right to participate in other ways in the democratic
process.x Increasing weight has been given by the UK Government
to children's right to participate in decision-making on matters
that affect them, through Every Child Matters and other initiatives,
as well as through legislation. A British Bill of Rights incorporating
the CRC would elevate children's right to participate in decision-making
as being central to our national values.
Children's vulnerability and crucial stage of
development also mean that they need distinct rights protection,
which is why they have their own human rights treaty. The CRC
grants children a comprehensive set of economic, social, cultural
and civil and political rights. Adopted by the UN in November
1989, many of the rights in the CRC are transposed from other
human rights instruments but the treaty was tailor-made for children
and introduces distinctive human rights necessary to ensure for
the world's two billion children a childhood characterised by
dignity, respect and maximum fulfillment.
The UN Committee on the Rights of the Child
has selected four articles in the CRC as general principles: article
2, which guarantees all children all the rights in the treaty
without discrimination; article 3, which requires that children's
best interests be a primary consideration in all actions concerning
them; article 6, the child's right to life and maximum development;
and article 12, children's right to express their views and have
these views given due weight in all matters affecting them, having
regard to their age and maturity. In all, there are more than
40 substantive rights in the Convention, which the UN Committee
on the Rights of the Child has grouped together (stressing the
rights are indivisible) as general measures of implementation,
definition of the child, general principles, civil rights and
freedoms, basic health and welfare, education, culture and leisure
and special measures of protection.
The potential is also there for a positive shift
in the public's understanding of rights culture as it relates
to children, although the method of introduction of the Bill of
Rights, and education about its effect, would be crucial to ensuring
this.
2. WHAT SHOULD
BE IN
A BRITISH
BILL OF
RIGHTS?
(a) If there were to be a British Bill of Rights,
what rights and freedoms should it contain?
A British Bill of Rights should build on the
HRA by incorporating the CRC and its Optional Protocols in full,
as well as all other treaties the UK has ratified (see below).
xi To the extent that the Convention's provisions overlap with
those of the HRA, protection for children's rights should be "levelled
up" in the Bill of Rights to provide maximum protection (see
above and Appendix 1). Further, the organic development of human
rights means that, for example, the UN Convention on the Rights
of Persons with Disabilities, which opened for signature in March
2007, is in many respects a superior treaty for disabled children
than the CRC. The UN Committee on the Rights of the Child, with
its concluding observations, general comments and discussion days,
has extensively developed the interpretation of most aspects of
children's rights in the CRC and this must be reflected in the
British Bill of Rights. Some rights in UK legislation, such as
protection from discrimination on the grounds of sexual orientation
are not explicit in the CRC (though article 2 provides this protection
in its reference to "other status").
There is a strong case for many (if not most)
of the CRC rights and freedoms, once incorporated, to become non-derogable
rights. This would mean, in practice, that these rights would
be much more difficult for Parliament to amend, and they would
be subject to even greater protection during any public consultation.
Similar arguments can be made for other groups in society who
experience high levels of rights violations, for example disabled
people.
(b) Should it include any rights currently
recognized as common law rights and freedoms, and if so which?
With the above provisos, the CRC contains the
most comprehensive set of children's rights and we consider it
to be the best source of content for children's rights and freedoms
in a British Bill of Rights.
(c) Should it include any rights and freedoms
currently contained only in legislation, such as rights not to
be discriminated against, of data protection and freedom of information,
and if so which?
We want all of children's rights and freedoms
in the CRC to be incorporated in a British Bill of Rights. This
would include, and improve for children, the three examples of
domestic legislation cited by the JCHR.
(d) Should it include social and economic rights,
such as health and education, and if so which?
The inclusion of social and economic rights
in a British Bill of Rights is essential for the creation of a
more equal and just society. The incorporation of the CRC will
provide the UK's children with enforceable socio-economic rights
relating to matters such as their health and welfare, social security
and standard of living. Children are at a unique and crucial stage
of development and particularly vulnerable to the damaging effects
of inequality.
The ways in which inequality manifests itself
for children in the UK today are too many and wide-ranging to
cover adequately in this paper. By way of example:
— Figures released by the Department
for Work and Pensions in March 2007 show that in 2005-06 3.8 million
children in the UK lived in poverty. xii
— A consultation paper published by
the Department for Communities and Local Government in 2006 estimates
that there are between 350,000 and 410,000 families with dependent
children in England living in overcrowded conditions. xiii High
rates of overcrowding persist among lone parent families. xiv
— The Local Government Association
has reported that local councils and charities are picking up
the pieces of families refused help from the Social Fund in order
to avoid children going into care as a result of destitution.
xv One hundred children in England started to be looked after
in the year ending 31 March 2006 because of poverty: this is unacceptable
in a rich country like ours. xvi
— Health inequalities are growing.
In a Parliamentary answer (October 2006), Health Minister Caroline
Flint MP explained that the gap in life expectancy for babies
under one year had increased by 6% between families on lower incomes
("routine and manual" groups) and average income families
between the periods 1997-99 and 2002-04. xvii
— A British Medical Association report
shows that children from poorer families are at risk of developing
mental health problems and that mental health disorders are on
the increase for children and young people. xviii
We seek an open, national debate on the inclusion
of socio-economic rights in a British Bill of Rights, and believe
that this could be of particular benefit to children. Indeed,
we think this would greatly assist the End Child Poverty campaign,
which has cross-party support.
While concerns are sometimes raised as to the
justiciability of socio-economic rights, and their impact on Parliamentary
sovereignty in public spending decisions, many modern national
human rights instruments have incorporated socio-economic rights,
including nine CEE states (Belarus, Croatia, Czech Republic, Moldova,
Poland, Romania, Russia, Slovakia and Ukraine).
(e) Should it include rights and freedoms currently
contained in international treaties but not yet part of our law,
and if so which?
We want all of the international treaties and
Optional Protocols that the UK has ratified to be incorporated
into the British Bill of Rights.
The incorporation of the CRC is critical for
children. Already ratified by the UK together with most countries
in the world, the CRC presents the most universally recognised
standards for children's rights. Article 4 of the Convention requires
the UK to "undertake all appropriate legislative, administrative,
and other measures for the implementation" of the Convention.
While the Government's recent Green Paper The
Governance of Britain acknowledges the crucial importance of the
ECHR and HRA, it fails to mention any other international treaty,
including the CRC. However, the Government has previously indicated
its willingness to consider incorporation of the Convention (see
above) and it may find it easier to include so-called "aspirational"
language in a Bill of Rights than in a conventional Act of Parliament.
The JCHR has previously recommended incorporation
of "at least some" of the CRC into domestic law, and
we urge the Committee to develop its position in line with the
UN Committee's repeated recommendations for full incorporation,
as well as those of the APPG for Primary Care and Public Health
(see above).
METHODS OF
INCORPORATION
The general principles of the CRC as well as
other distinct rights for children could be expressed within the
Bill of Rights in a dedicated children's section. Alternatively,
the Convention could be incorporated by a single provision making
reference to it (the approach adopted by Norway when it amended
its Human Rights Act). A further possibility would be for both
these methods to be used together—this is our current preference.
The "incorporation plus" method reflects the approach
being advocated by children's rights organisations for Northern
Ireland's Bill of Rights. As described above, the incorporation
process must accommodate the developing nature of human rights
and, in relation to the CRC, the UN Committee of the Rights of
the Child's "jurisprudence".
South Africa is a good example of a Bill of
Rights that protects children generally but also specifically:
article 28 of its Bill of Rights grants children additional rights
relating to name and nationality, family life and alternative
care, adequate standard of living and health and social care,
protection from maltreatment and exploitation, juvenile justice
and armed conflict. Significantly, it requires that the child's
best interests be accorded paramount importance in every matter
concerning the child.
WHY THE
CRC MUST BE
INCORPORATED
The CRC can and should be used in judicial decision
making to a greater degree than presently occurs. However, it
will always be of limited effect until it is incorporated into
our domestic law.
The Declaration of the Rights of the Child was
adopted by the League of Nations in 1924. This set out for the
first time adult obligations towards children: its preamble urged,
"mankind owes to the child the best that it has to give".
Nearly 80 years later, Gordon Brown, as Chancellor of the Exchequer,
announced:
"Our country's future lies with the hopes,
dreams and potential of our children".xix
The CRC is the second most widely ratified international
treatyxx and the most far-reaching and comprehensive of all human
rights treaties. Just after the UN voted to adopt the Convention
in 1989 the then head of UNICEF said at a press conference in
New York:
"For children, [the CRC] is the Magna Carta.
To get one common doctrine is a near miracle in its own right
| It creates a new international norm".xxi
Some years later, Nelson Mandela described the
Convention as:
"that luminous living document that enshrines
the rights of every child without exception to a life of dignity
and self-fulfillment".xxii
At the UN General Assembly Special Session on
Children, in May 2002, member states emphasised the centrality
of human rights and the CRC in particular in transforming children's
lives. The "World Fit for Children" outcomes document
declared:
"We reaffirm our obligation to take action
to promote and protect the rights of each child ... We are determined
to respect the dignity and to secure the well-being of all children.
We acknowledge that the Convention on the Rights of the Child...
and its Optional Protocols contain a compehensive set of international
legal standards for the protection and well-being of children.
We also recognise the importance of other international instruments
relevant for children".xxiii
John Denham MP, then Minister for Young People,
in his speech to the UN General Assembly explained:
"The way to ensure children's well-being
is to take full account of their rights".xxiv
The CRC is not enforceable in its own right
though it can—and should—inform judicial decision-making.
There are some very good examples of UK courts applying the CRC,
for example in Mabon and Mabon, which concerned the rights of
three brothers to have separate representation in proceedings
relating to their parents' separation and who the boys should
live with. Lord Justice Thorpe considered the obligations under
article 8 of the ECHR and article 12 of the CRC. He ruled that
the boys should have separate representation, emphasizing that:
"Unless we in this jurisdiction are to fall
out of step with similar societies as they safeguard Article 12
[of the CRC] rights, we must, in the case of articulate teenagers,
accept that the right to freedom of expression and participation
outweighs the paternalistic judgment of welfare".xxv
The House of Lords applied many aspects of the
CRC when considering a case relating to the prohibition of corporal
punishment in private schools. Corporal punishment was outlawed
in state schools in 1987 but it was not until 1998 that it was
prohibited in private schools.
In the Williamson case, a group of Christian
head teachers, teachers and parents of four independent schools
argued that the corporal punishment of children is central to
their religious beliefs and to prohibit this in private schools
is to violate their right to practise their religion under article
9 of the ECHR. The law lords found the ban on corporal punishment
to be legitimate and proportionate. Citing the obligations of
articles 3, 37, 19 and 28, Baroness Hale of Richmond used the
CRC as her framework. She explained:.
"... the state has a positive obligation
to protect children from inhuman or degrading punishment which
violates their rights under article 3 [of the ECHR]. But prohibiting
only such punishment as would violate their rights under article
3 (or possibly article 8) would bring difficult problems of definition,
demarcation and enforcement. It would not meet the authoritative
international view of what the CRC requires".xxvi.
In the Axon case, a mother of five children
claimed that Department of Health guidance for doctors and other
health professionals on advice and treatment to young people under
16 on contraception, sexual and reproductive health was unlawful.
Mr Justice Silber referred to articles 12, 16 and 18 of the CRC
and stated:
"It is appropriate to bear in mind that
the ECHR attaches great value to the rights of children ... Furthermore
the ratification by the United Kingdom of the United Nations Convention
on the Rights of the Child (UNC) in November 1989 was significant
as showing a desire to give children greater rights. The ECHR
and the UNC show why the duty of confidence owed by a medical
professional to a competent young person is a high one, and which
therefore should not be overridden except for a very powerful
reason. In my view, although family factors are significant and
cogent, they should not override the duty of confidentiality owed
to the child".xxvii
Clearly, when the courts apply the CRC there
can be significant gains for affected children. Yet, too few cases
concerning children make use of the CRC, despite the very strong
ECHR Chamber judgement in the Sahin case:
"The human rights of children and the standards
to which all governments must aspire in realising these rights
for all children are set out in the Convention on the Rights of
the Child".xxviii
If the CRC largely remains locked out of the
courtroom, children themselves are not far behind. Of almost 430
HRA cases analysed by the Human Rights Research Project at Doughty
Street Chambers, children initiated less than 20. xxix This by
no means reflects a positive picture of children's human rights
in Britain today. UNICEF reported this year that the UK ranks
overall bottom of 21 industrialised countries for children's well
being.xxx In 2002, the UN Committee on the Rights of the Child
examined the UK and made more than 80 recommendations for improvements
in law, policy and practice. xxxi
The UN Committee criticised the lack of UK Government
engagement with even the concept of children's rights and urged
a national implementation plan for the CRC, together with the
creation of an independent human rights institution for children,
compatible with the Paris Principles, in each of the four jurisdictions
of the UK.
In some areas of policy, the UN Committee's
observations were justifiably harsh—in relation to the very
high level of child poverty and inequalities in education and
health, lack of legal protection from violence in the home, the
treatment of children in trouble with the law and the discriminatory
treatment of asylum-seekers and Roma and Gypsy Traveller children.
The UN Committee welcomed the HRA whilst stressing
the broader obligations of the CRC. Since 2002, other human rights
bodies—the Committee against Torture, the European Social
Rights Committee, the Council of Europe's Human Rights Commissioner
and the JCHR itself—have criticised the UK's children's
human rights record. Government policy is not the only target:
the practices of public authorities have also been put under the
spotlight.
The Audit Commission found that 58% of public
bodies had "not adopted a strategy for human rights"
and had "no clear corporate approach" and concluded,
"in many local authorities the Act has not left the desk
of the lawyers". It reported that 73% of the health trusts
surveyed were "not taking any action".xxxii
Introducing his first annual report, Professor
Sir Al Aynsley-Green, Children's Commissioner for England, said,
"It is incredible that in one of the world's richest economies
children and young people continue to live in poverty, suffer
abuse and be denied their human rights".xxxiii CRAE, in its
preparations for the next UK examination by the UN Committee on
the Rights of the Child, has identified at least 40 examples of
outright breaches of the CRC. xxxiv
An opinion poll carried out for the Northern
Ireland Human Rights Commission found overwhelming support for
"special rights for children"xxxv in that country's
emerging Bill of Rights, and similar support can be anticipated
across the rest of Britain.
(f) Should it include rights and freedoms contained
in other countries" bills of rights and if so which?
It is clear from international comparisons that
any obstacles to the incorporation of the CRC in the UK can be
overcome.
In November 2003, the UN Committee on the Rights
of the Child published guidance on what states must do to ensure
the full implementation of the CRC (its "general measures
general comment"). Paragraphs 18 to 23 explore the different
legislative measures that can be taken to realise children's human
rights, from the specific inclusion of children and/or children's
rights in national constitutions to amendments to sectoral laws
relating to juvenile justice, education, health and so on. On
incorporation the Committee says:.
"The Committee welcomes the incorporation
of the Convention into domestic law, which is the traditional
approach to the implementation of international human rights instruments
in some but not all States. Incorporation should mean that the
provisions of the Convention can be directly invoked before the
courts and applied by national authorities and that the Convention
will prevail where there is a conflict with domestic legislation
or common practice. Incorporation by itself does not avoid the
need to ensure that all relevant domestic law, including any local
or customary law, is brought into compliance with the Convention.
In case of any conflict in legislation, predominance should always
be given to the Convention, in the light of article 27 of the
Vienna Convention on the Law of Treaties. Where a State delegates
powers to legislate to federated regional or territorial governments,
it must also require these subsidiary governments to legislate
within the framework of the Convention and to ensure effective
implementation".xxxvi
A study carried out by the UNICEF Innocenti
Research Centrexxxvii examined the status of the CRC in 29 countriesxxxviii
and reported that:
"... the CRC has been incorporated directly
into the national law of most of the countries whose legislation
was reviewed| Many of the new constitutions adopted by countries
in Central and Eastern Europe over the last 15 years contain relatively
generous provisions concerning the rights of the child. In contrast,
only two of the Western European countries covered by this study
[Belgium and Iceland] have amended their constitutions to enhance
the rights of the child| All of the countries have made substantial
changes in their legislation to better protect the rights of children".xxxix
Further useful international comparative research
and analysis was reported in another Innocenti study, Laying the
Foundation for Children's Rights: An independent study of some
key legal and institutional aspects of the impact of the Convention
on the Rights of the Child. xl
(g) Should it include responsibilities as well
as rights and freedoms, and if so, what sorts?
CRAE recognises the important role the state
has in encouraging positive behaviour. However, we are deeply
concerned at the erosion of civil liberties and welfare rights
which has occurred in the UK over the last 10 years, particularly
under the auspices of tackling terrorism and anti-social behaviour.
We strongly oppose the erosion of fundamental rights and freedoms
as a response to these challenges.
We believe that respect for the fundamental
rights and freedoms of individuals continue to be crucial to the
long-term well-being of UK society as a whole. This is particularly
important for children, who are at a crucial stage of development
and potential, and for whom it is essential to understand that
they have innate rights that do not have to be "earned".xli
Linking rights to responsibilities is especially dangerous for
children, because it exposes them to disproportionately harmful
penalties and does not recognise their particular needs. For example,
benefit reduction and the eviction of families where an individual
has behaved in an anti-social way and not accepted support will
inevitably have a serious and disproportionately harmful impact
on any children in that family, as the JCHR has pointed out. xlii
The recent announcement by the Secretary of State for Children
that ASBOs are a sign of policy failure in relation to children
is a prime example of the (unintended) consequences of the rights
and responsibilities discourse being played out in some of our
most deprived communities. xliii To avoid harm to children (and
others who are vulnerable) responsibilities would have to be so
tightly qualified in any Bill of Rights to make them meaningless.
Helping to create and sustain a socially responsible
society is a vital task of any government but, in this context,
we would oppose any linking between individual rights and responsibilities,
particularly any move to make rights contingent upon individuals'
compliance with duties or obligations. We believe this would be
seriously detrimental to UK society and would disproportionately
harm children and other vulnerable people.
3. WHAT SHOULD
BE THE
RELATIONSHIP WITH
THE HUMAN
RIGHTS ACT
AND INTERNATIONAL
HUMAN RIGHTS
OBLIGATIONS?
(a) What should be the relationship between
a British Bill of Rights and the Human Rights Act?
The rights and freedoms protected by the HRA
should be afforded the same status as those covered by the British
Bill of Rights. The best solution may be to incorporate them all
within one instrument, "levelling up" rights protection.
(b) What should be the relationship between
a British Bill of Rights and the ECHR/other international human
rights treaties?
The British Bill of Rights should draw on relevant
international human rights treaties for its content—including
the CRC. There should be a commitment to review and "evolve"
the Bill in recognition of the organic nature of human rights.
We note there have been 27 amendments to the Irish constitution
since 1939, the most recent, in June 2004, to accord citizenship
rights to children of non-nationals. A further amendment to entrench
some other CRC rights is now being considered, following the commitment
given by the Irish Children's Minister after the 2006 state party
examination by the UN Committee on the Rights of the Child. The
Ombudsman for Children in Ireland has criticised the proposals
as being "a restricted application of the principles of the
CRC to the position of children in the Constitution. They do not
appear to meet the specific recommendations of the UN Committee
on the Rights of the Child set out in its Concluding Observations
on Ireland's Second Report issued in September 2006".xliv
(c) Are there any other relevant issues not
covered by the above questions?
The Prime Minister has urged widespread public
consultation on a Bill of Rights, xlv and children must be part
of this. Article 42 of the CRC requires the state to widely disseminate
information about children's rights to the public, including children
and parents, and professionals. Clearly, if this is to be an informed
debate, public consultation must be coupled with measures to raise
awareness of the UK's existing human rights obligations. We welcome
the work of the Ministry of Justice in tackling misinformation
about the HRA but urge much stronger, consistent and cross-Government
activity to tackle the smear tactics of our largely human rights
hostile media.
As in Northern Ireland, debates about protecting
children's rights must extend to implementation and enforceability,
inviting creative solutions to deal with the particular challenges
faced by children in claiming and defending their rights. In this
respect alone, children's own views and reflections could lead
us towards a truly progressive Bill of Rights.
4. WHAT SHOULD
BE THE
IMPACT OF
A BRITISH
BILL OF
RIGHTS ON
THE RELATIONSHIP
BETWEEN THE
EXECUTIVE, PARLIAMENT
AND THE
COURTS?
The Courts must have at least the same powers
in relation to the Bill of Rights as they hold in relation to
the HRA. However, particularly given recent threats by the opposition
to abolish the HRA, we believe it is crucial that the Bill of
Rights has a more entrenched status.
We recognise the need to choose a model that
fits the UK, and this will clearly depend to a large extent on
the outcome of current proposals for constitutional reform.
As part of the consultation on constitutional
reforms, we therefore seek an open, well-informed national debate
as to the appropriate model for the British Bill of Rights. This
should include consideration of a US-style system, xlvi under
which the Courts would have the ultimate power to interpret legislation
and would be entitled to strike down laws which were incompatible
with the Bill of Rights, and comparison with systems such as that
in Canada where the "not-withstanding" clause allows
Parliamentary sovereignty and judicial supremacy to co-exist.
The aim must be to obtain consensus on a model that would allow
the British Bill of Rights to be a meaningful and powerful instrument
for positive change for all, especially for the most vulnerable.
REFERENCES
i We use the CRC definition of children—any
person below the age of 18 years.
ii Para. 9, Concluding Observations of the UN
Committee on the Rights of the Child: United Kingdom, October
2002.
iii Evidence given to the Joint Committee on
Human Rights, Tenth Report, 2002-03, Question 51.
iv Joint Committee on Human Rights, Tenth Report,
2002-03, paras. 22-23.
v Joint Committee on Human Rights (November
2003) Government's Response to the Committee's Tenth Report of
Session 2002-03 on the UN Convention on the Rights of the Child.
vi All Party Parliamentary Group for Primary
Care and Public Health (November 2003) Do we need a more conventional
nanny? Report of an inquiry into effective cross-departmental
policy on children's issues.
vii Committee on the Rights of the Child General
Comment No 5 (2003) General Measures of Implementation of The
Convention on the Rights of the Child (Arts 4, 42 And 44, Para
6).
viii The Secure Training Centre (Amendment)
Rules 2007 (SI 2007/1709) permit restraint to be used for the
purposes of good order and discipline. Nose, rib and thumb "distraction"
techniques have been approved for use in these centres—these
methods involve the infliction of severe pain on children.
ix See Appendix 1 for a list of overlapping
provisions.
x CRAE is a founder member of the Votes at 16
campaign and strongly believes the franchise should be extended
to 16 and 17 year-olds. This has wide-ranging support and was
a key recommendation of the Power Inquiry chaired by Baroness
Helena Kennedy and reporting in February 2006.
xi See Appendix 2 for a summary of the CRC's
provisions.
xii Department for Work and Pensions (2007)
Households below average income.
xiii Department for Communities and Local Government
(2006) Tackling overcrowding in England: A discussion paper.
xiv Ibid.
xv Local Government Association (January 2006)
The Social Fund and local government.
xvi Children looked after by local authorities,
year ending 31 March 2006. Table 10 children looked after by category
of need.
xvii Written answer to Parliamentary question,
25 October 2006: Column 1962W.
xviii British Medical Association (2006) Child
and adolescent mental health—a guide for healthcare professionals.
xix Chancellor of the Exchequer to the Children
And Young People's Unit conference at the Design Centre, Islington,
15 November 2001.
xx There are now 192 States Parties to the CRC.
The CRC is surpassed by only the Geneva (1949) Conventions, which
achieved universality in August 2006.
xxi "Assembly adopts new Convention ...
for the children of the world...—international Convention
on the Rights of the Child', UN Chronicle, March 1990.
xxii Statement by Nelson Mandela on Building
a Global Partnership for Children Johannesburg, 6 May 2000.
xxiii A World Fit for Children, adopted by the
UN General Assembly at the twenty-seventh special session, 10
May 2002.
xxiv Statement by John Denham MP, Minister for
children and young people to the United Nations General Assembly
special session on children, New York, 10 May 2002.
xxv [2005] EWCA CIV 634.
xxvi [2005] UKHL 15.
xxvii [2006] EWHC 37 (Administrative).
xxviii Extract from Sahin v Germany, Chamber
judgment of the ECtHR, 8 July 2003.
xxix O'Brien, C and Arkinstall, J (2002) Human
Rights Act Project Database of Cases under the Human Rights Act
1998: http://www.doughtystreet.co.uk/hrarp/summary/index.cfm
xxx UNICEF Innocenti Research Centre (2007)
Child well-being in rich countries. A comprehensive assessment
of the lives and well-being of children and adolescents in the
economically advanced nations.
xxxi Committee on The Rights of the Child Thirty-first
session Concluding Observations of the Committee on the Rights
of the Child: United Kingdom of Great Britain & Northern Ireland,
4 October 2002.
xxxii Audit Commission (2003) Human rights:
improving public service delivery.
xxxiii http://www.childrenscommissioner.org/annualreport.htm
xxxiv Independent on Sunday "What happened
to childhood? How we are failing the young", 10 June 2007
xxxv Northern Ireland Human Rights Commission
(October 2001) A Bill of Rights for Northern Ireland. Summary
of opinion poll findings.
xxxvi Committee on the Rights of the Child General
Comment No 5 (2003) General Measures of Implementation of The
Convention on the Rights of the Child (Arts 4, 42 And 44, Para.
6).
xxxvii The General Measures of the Convention
on the Rights of the Child: The Process in Europe and Central
Asia (UNICEF Innocenti Research Centre, 2006).
xxxviii Austria, Belarus, Belgium, Bosnia and
Herzegovina, Croatia, Cyprus, the Czech Republic, Denmark, Finland,
France, Georgia, Germany, Greece, Iceland, Italy, Latvia, Lithuania,
Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation,
Slovenia, Spain, Sweden, the Former Republic of Macedonia, Ukraine
and the UK.
xxxix The General Measures of the Convention
on the Rights of the Child: The Process in Europe and Central
Asia (UNICEF Innocenti Research Centre, 2006).
xl UNICEF Innocenti Research Centre, 2005.
xli See: How the Bill of Rights can best protect
and promote the rights of children and young people in Northern
Ireland: Learning from international law and the experience of
other jurisdictions (Dr Ursula Kilkelly, November 2005), para
10.
xlii JCHR (January 2007) Legislative Scrutiny:
First Progress Report. Second Report of Session 2006-07 Report,
together with formal minutes and appendices.
xliii Ed Balls quoted in Daily Mirror article
"Asbos are a failure" 27 July 2007.
xliv Ombudsman for Children (March 2007) Report
to the Oireachtas on the Twenty-Eighth Amendment of the Constitution
Bill 2007.
xlv House of Commons debate on Constitutional
Reform, Hansard, 3 July 2007: Column 815.
xlvi This would involve the new UK Supreme Court
which is due to start work in October 2009.
30 August 2007
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