“There are two ways of making the United Nations Convention on the Rights of the Child enforceable in UK courts. The first way is to incorporate the Convention as a whole into our law and the second way is to implement what the Convention does in piecemeal legislation, eventually trying to cover all the areas it covers.
Lady Joan Walmsley’s Children’s Rights Bill, introduced into the House of Lords in November 2009 would have incorporated the Children’s Rights Convention directly into our law, in the same way that our Human Rights Act incorporated the European Convention on Human Rights. So there would have been a binding obligation on public authorities to comply with the CRC and the courts could have made declarations that proposed or current legislation was incompatible with the CRC.
However, some of the CRC rights are too indefinite to express clearly in law. It would be straightforward to make Article 7 enforceable. It gives all children the right to a name and as far as possible to live with their parents. Article 17, on the other hand, entitles children to “reliable information from the media” That one would be difficult to set out as a legal right and hard to enforce.
Many of the European Convention Rights are conditional and require a balance between the individual and what is necessary in a democratic society for the prevention of crime, the promotion of public health and other reasons which are set out in the individual rights. There is only a trace of that need for balance in one or two of the Children’s Convention rights and so if they were made into enforceable legal rights there might be a fear that they could “trump” the rights of others or the needs of the community as a whole. That would not work.
Some of the rights are expressed in aspirational language which would be extremely difficult to put into law.
Further, if the government does not put right an incompatibility with the European Convention which a court has declared, the individual bringing the case can go to Strasbourg to get a further order. There is currently no international tribunal that hears international CRC cases, which could play that role of holding the government to its Convention obligations.
These are all arguments against direct incorporation but there is a way in which the Human Rights Act has made the Children’s Rights Convention enforceable already. The European Court of Human Rights in Strasbourg takes into account rights from international treaties and our courts are obliged, by the Act, to have regard to Strasbourg jurisprudence. They will therefore take into account points on the CRC which have been raised in Strasbourg. Quite separately the courts of England and Wales have said that the UK’s ratification of the Children’s Rights Convention implies that Parliament would not legislate incompatibly with our obligations under that Convention and that statute law should be interpreted in a way consistent with the Convention’s aims.
So, I leave a question mark over whether direct incorporation is the right way forward and turn to the question of piecemeal implementation.
In March, the Labour Government produced a document, for the Joint Committee on Human Rights, setting out how legislation has underpinned the implementation of the Children’s Rights Convention in our law. The document is 240 pages long and sets out in detail, cluster by cluster how the rights have been brought into UK law through separate policy statutes. The Child Poverty Bill is a case in point. It introduced a duty to alleviate child poverty on all public authorities, which strongly reflects requirements from the Convention. All discrimination is outlawed in the new Equalities Act, for children as well as for adults, again implementing aspects of the CRC. Although people under the age of eighteen are not enabled to bring a private law action for age discrimination under the Equalities Act, the duty on the public sector to reduce discrimination and promote equality does require that they exclude ageism and promote equality for the young. The Equalities Act is intended to change the culture around equalities. At present if there is discrimination, the burden is on an individual to take an case to rectify it. Far better to require the authorities to exclude it in the first place, a duty which will be enforcable through judicial review once the Act is brought fully into force, as I hope the Coalition will do.
Any campaign to incorporate the CRC in UK law would have to analyse the deficit between what has already been brought into law through legislation and what ought to become law in order fully to introduce the Convention Rights. The Labour Government felt that it had done a great deal to bring Children’s Rights home and intended to continue that process though it did not favour incorporating what it saw as the vague wording of the Convention.
The issue is really culture change, to recognise that children are entitled to rights. The next opportunity to press the case for incorporation is likely to be the establishment of the Coalition’s Commission on Human Rights which is due next April. The way to campaign is to highlight which rights are still not incorporated through piecemeal legislation and why they are nonetheless important.
The Rights of the Child – UNICEF London
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