UK government fails to take opportunity to enhance children’s rights protections

In May 2002 the UK Government, led by the Department of Constitutional Affairs, established a review of its position on international human rights instruments. This review was to be conducted in the light of experience of the operation of the Human Rights Act, the availability of existing remedies within the UK and law and practice in other EU member states. The review encompassed –
• UK reservations to and derogations from UN and Council of Europe human rights instruments and whether they should be maintained
• ratification of additional human rights instruments;
• ratification of additional protocols;
• acceptance of the individual complaint procedures under the UN instruments.

The most positive decisions arising from the review were those to ratify 1) the Optional Protocol to the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), allowing individuals or groups of individuals to complain to the UN Committee on the Elimination of Discrimination Against Women 2) the Optional Protocol to the Convention on the Rights of the Child relating to children in armed conflict and 3) the Optional Protocol to the UN Convention Against Torture allowing for a system of inspection of places of detention.

Aside however from these and a small number of more minor decisions, the review disappointingly concluded that the UK government should maintain its current position in relation to a wide range of instruments, reservations and interpretive declarations. This meant deciding not to ratify the following: Protocol 12 ECHR which guarantees a free-standing right to equality, Protocol 4 ECHR which guarantees freedom of movement and protects against arbitrary and collective expulsions and the Revised European Social Charter which extends and adds to the rights in the Social Charter of 1961. It also decided, most discouragingly, to maintain its two major reservations to the UNCRC. While some of the review decisions may appear to be of technical or legal significance only, a number have the effect of significantly lessening the degree of protection afforded to vulnerable people, and in particular to vulnerable children and young people such as refugee and asylum seeking children and children in detention.

Following the government’s report the Joint Committee on Human Rights conducted a short inquiry into its findings. The Children’s Law Centre and Save the Children UK in Northern Ireland, along with CAJ, submitted written evidence to this inquiry. The Joint Committee’s report is intended to provide an evaluation of the Review, scrutinising as it does decisions reached, including the Government’s reasons for not signing or ratifying certain human rights instruments and its decision maintain existing qualifications to the UK’s obligations under certain instruments.

By way of an initial general comment, the Joint Committee expressed dissatisfaction at the brevity and the generality of the conclusions provided in the Review report. It noted that the report failed to provide any analysis of the arguments put by those who were consulted, arguments that were clearly dismissed in the conclusions reached.

The Joint Committee devoted a sizeable section of its report to the right of individual petition. While welcoming the ratification of the Optional Protocol to CEDAW, allowing for individual petition under that Convention, the Joint Committee expressed disappointment that the Government failed to accept the right of individual petition provided for under a number of other human rights treaties (the UNCRC does not have such a mechanism at present). It challenged the Government, in view of the broad acceptance of the right of individual petition by comparable states to present more compelling reasons for not extending individual petition, something it plainly failed to do in its report.

While most if not all of the decisions reached in the Government’s Review have relevance for children’s rights protecIn May 2002 the UK Government, led by the Department of Constitutional Affairs, established a review of its position on international human rights instruments. This review was to be conducted in the light of experience of the operation of the Human Rights Act, the availability of existing remedies within the UK and law and practice in other EU member states. The review encompassed –
• UK reservations to and derogations from UN and Council of Europe human rights instruments and whether they should be maintained
• ratification of additional human rights instruments;
• ratification of additional protocols;
• acceptance of the individual complaint procedures under the UN instruments.

The most positive decisions arising from the review were those to ratify 1) the Optional Protocol to the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), allowing individuals or groups of individuals to complain to the UN Committee on the Elimination of Discrimination Against Women 2) the Optional Protocol to the Convention on the Rights of the Child relating to children in armed conflict and 3) the Optional Protocol to the UN Convention Against Torture allowing for a system of inspection of places of detention.

Aside however from these and a small number of more minor decisions, the review disappointingly concluded that the UK government should maintain its current position in relation to a wide range of instruments, reservations and interpretive declarations. This meant deciding not to ratify the following: Protocol 12 ECHR which guarantees a free-standing right to equality, Protocol 4 ECHR which guarantees freedom of movement and protects against arbitrary and collective expulsions and the Revised European Social Charter which extends and adds to the rights in the Social Charter of 1961. It also decided, most discouragingly, to maintain its two major reservations to the UNCRC. While some of the review decisions may appear to be of technical or legal significance only, a number have the effect of significantly lessening the degree of protection afforded to vulnerable people, and in particular to vulnerable children and young people such as refugee and asylum seeking children and children in detention.

Following the government’s report the Joint Committee on Human Rights conducted a short inquiry into its findings. The Children’s Law Centre and Save the Children UK in Northern Ireland, along with CAJ, submitted written evidence to this inquiry. The Joint Committee’s report is intended to provide an evaluation of the Review, scrutinising as it does decisions reached, including the Government’s reasons for not signing or ratifying certain human rights instruments and its decision maintain existing qualifications to the UK’s obligations under certain instruments.

By way of an initial general comment, the Joint Committee expressed dissatisfaction at the brevity and the generality of the conclusions provided in the Review report. It noted that the report failed to provide any analysis of the arguments put by those who were consulted, arguments that were clearly dismissed in the conclusions reached.

The Joint Committee devoted a sizeable section of its report to the right of individual petition. While welcoming the ratification of the Optional Protocol to CEDAW, allowing for individual petition under that Convention, the Joint Committee expressed disappointment that the Government failed to accept the right of individual petition provided for under a number of other human rights treaties (the UNCRC does not have such a mechanism at present). It challenged the Government, in view of the broad acceptance of the right of individual petition by comparable states to present more compelling reasons for not extending individual petition, something it plainly failed to do in its report.

While most if not all of the decisions reached in the Government’s Review have relevance for children’s rights protections, the remainder of this article confines itself to examining those decisions that have particularly significant implications for children and young people.


Ratification of the Optional Protocol to the Convention on the Rights of the Child on Children in Armed Conflict.

The UK ratified this Protocol in June 2003 during the course of the Review, a move that was welcomed by the Joint Committee. The Protocol commits states to taking all feasible measures to ensure that members of their armed forces under 18 years of age do not take a direct part in hostilities. On ratifying the Protocol however, the UK government made an interpretive declaration that lists a number of extenuating circumstances in which military commanders would in effect be permitted to deploy under 18s. Included in these ‘special circumstances’ are situations ‘where there is a genuine military need to deploy their unit or ship to an area where hostilities are taking place’ and situations when by not deploying them it would ‘undermine the operational effectiveness of their ship or unit’.

The Joint Committee, as previously stated in their report on the UNCRC considered that this declaration was “overly broad” and that it undermined the UK’s commitment, taken in the Protocol, not to deploy under 18s in conflict zones.


Reservation to the Convention on the Rights of the Child: Immigration and Nationality

Article 22 of the UN Convention on the Rights of the Child guarantees the protection of children seeking refugee status, while more generally the rights protected by the Convention apply to all children without discrimination. The UK has entered a general reservation to the UNCRC as regards the entry, stay in and departure from the UK, of those children subject to immigration control, and the acquisition and possession of citizenship, claiming that is it necessary in the interests of effective immigration control.

The UN Committee on the Rights of the Child, in its concluding observations in 2002, criticised the UK government for maintaining this reservation, noting that it was against the object and purpose of the Convention , something which is impermissible and invalid under international law. The Joint Committee, which had also previously criticised the UK government for maintaining this reservation, expressed disappointment that the UK government had failed to act on its earlier recommendation that it withdraw this reservation to the UNCRC. It stated that its principal concern was that “the practical impact of the reservation goes far beyond the determination of immigration and leaves children subject to immigration control with a lower level of protection in relation to a range of rights which are unrelated to their immigration status”. The Joint Committee concluded that the maintenance of this reservation “calls into question the UK’s commitment to a Convention central to international human rights protection” and strongly recommended to the Government to withdraw it.


Reservation to Article 37 (c) of the Convention on the Rights of the Child – detention of children with adults (also article 10(2) (b) UN International Covenant on Civil and Political Rights)

The UK has entered reservations to Article 37 (c) UNCRC and Article 10 of the International Covenant on Civil and Political Rights regarding the provisions that require under 18s to be detained separately to adults, citing ‘ resource constraints or operational reasons’ as justification for detaining under 18s with adults. The UN CRC Committee in 2002 criticized the government for its failure to withdraw this reservation, noting that it appeared that “only resource considerations now prevent the withdrawal of the reservation”. In its Review report government stated that in Northern Ireland it is not always possible to hold children separately due to ‘operational reasons’.

The Joint Committee, having previously expressed concern at the detention of juveniles alongside adults, and in particular at the number of girls under 18 years of age detained alongside adult women, reiterated these concerns and noted that neither resource nor security considerations provided sufficient justification for the maintenance of this reservation. It recommended that the Government establish a timescale for the provision of separate accommodation for all children in custody and for withdrawal of the reservations.

CONCLUSION

The Government review, with the exception of the ratification of the Optional Protocol to the UNCRC on Children in Armed Conflict, notwithstanding the interpretative declaration made, and the acceptance of the right of individual petition under CEDAW, singularly failed to bring about changes that had the potential to significantly improve the lives of children and young people. Given the comprehensive nature of the review coupled with its lengthy time frame, the reasonable expectation was that something more substantive would emerge. The justifications given by the Government for maintaining its reservations to the UNCRC had previously been characterised as unacceptable and rejected by both the Joint Committee and the UN Committee on the Rights of the Child, yet the Government, rather than seriously reviewing its position with a view to removing these reservations, seems to have chosen to simply rehearse the same groundless arguments.

The report by the Joint Committee represents a very valuable aid for the UK parliament in scrutinising the outcomes of the Government’s review. Given our own continuing lack of any political mechanisms to hold Government to account it should also make very valuable reading for political parties and all those in civic society concerned with children’s rights protections.