Human Rights Act 1998: Exploring lessons learned & it’s impact on children’s rights

This summer, Together was joined by Siti Zaleha Binti Mohd Ali, an LLM in Human Rights candidate at the University of Edinburgh. Over the course of her placement, Siti researched the impact of the Human Rights Act 1998 on children’s lives and the lessons learned for incorporation of the UNCRC into Scots law. We are delighted to share Siti’s key findings in this blog and congratulate her on achieving a distinction for this research.

INTRODUCTION

Today, on Human Rights Day, we are reflecting on what the last year has had in store for the Human Rights Act 1998. On 7 December 2020, as promised in the Conservative Party’s manifesto, the UK Government launched the Independent Human Rights Act Review aimed to update the Human Rights Act 1998 (‘HRA’). However, the Scottish Government has made its position clear that the HRA functions efficiently in protecting and enhancing human rights in Scotland. This was evident when the Scottish Government introduced the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill on 1 September 2020. The Bill intentionally replicates the HRA model, key features and approach while at the same time, builds upon the HRA with the aim of ensuring the strongest protection for children’s rights in Scotland. On 16 March 2021, the Bill was passed unanimously by the Scottish Parliament demonstrating the Scottish Government’s, Parliament’s, public services’ and civil society’s commitment towards championing children’s rights and making their rights real.

WHAT IS THE RESEARCH ABOUT?

The research began with analysis on the legal protections for children’s rights in the UK prior to the HRA. Then, the research explored the progression and gaps in children’s rights protection in the UK after the HRA. Finally, the research drew out the learning to inform Scotland’s implementation of the UNCRC Bill and plans to incorporate international human rights treaties in the future.

WHAT WERE THE LEGAL PROTECTIONS FOR CHILDREN’S RIGHTS IN THE UNITED KINGDOM BEFORE THE HUMAN RIGHTS ACT 1998?

The nature of the UK system meant courts were unable to fully use the European Convention on Human Rights (ECHR) before the HRA. Courts tended to refer only to domestic legislations. In some cases, this meant the courts upheld a public authority’s interests over children’s rights. However, shortly before the HRA came into the picture, the courts started to embrace a limited role of the ECHR. This included looking to the ECHR if domestic law was unclear.

Throughout the years, the UK courts continued to evolve in terms of children’s rights. Nevertheless, the ECHR remained unincorporated so it was not binding on the courts or other public authorities before the HRA.

HOW THE HUMAN RIGHTS ACT 1998 HAS IMPACTED CHILDREN’S RIGHTS IN THE UNITED KINGDOM?

The HRA marked the ECHR’s incorporation into UK domestic law. The ECHR guarantees, irrespective of age, the human rights of all people in the Council of Europe’s Member States. The HRA incorporates those rights set out in Articles 2-14, 16, 18, Articles 1, 2 and 3 of the First Protocol and Article 1 of Protocol 13. The HRA also bolstered the protection and furtherance of the Convention rights in Scotland wherein the Scotland Act 1998 elevates the HRA’s function in Scotland. The HRA and the Scotland Act can be said to encourage the development of a human rights’ culture in Scotland, in particular, the Scottish courts started to adopt a rights-based approach in their decisions.

Through studying case reports and interviewing practitioners, it is clear the HRA has impacted children’s rights in three different areas; legislative, administrative and procedural. Whilst this progression must be celebrated, the research also brought to light gaps within the HRA in the same areas. To place children’s rights on a par with those of adults, a holistic reform to address these gaps is crucial and inevitable.

A NEW DAWN FOR SCOTLAND?

Despite the progression in children’s rights protection achieved by the HRA, the in-depth analysis shows a plethora of gaps that need to be addressed in order to fully realise children’s rights. Also, in October 2021, IHRAR has delivered its independent report to the Lord Chancellor. Whilst we anticipate the publication of the independent report and the UK Government’s response, Together hopes to demonstrate the value of the HRA and to bring attention the urgent need to incorporate the UNCRC into Scotland’s domestic law to address these gaps. Also, it must be borne in mind that direct incorporation of the UNCRC serves as a floor and not a ceiling. Going forward, Together hopes the recommendations in this research may serve as a point of reference on how the Scottish Government, Scottish Parliament, judiciary, Together and other civil society organisations may support the implementation of the HRA, the UNCRC Bill and future incorporation of international human rights treaties in Scotland.

  • Read the full report here.

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