My Lords, I will speak to Amendment 70, in my name, supported by the noble Lords, Lord Storey and Lord Russell, and the noble Earl, Lord Dundee, to whom I am grateful. However, my remarks are also relevant to other children’s rights amendments in this group, some of which I have signed. I am grateful, too, to the Children’s Society for its assistance, and to all the children’s organisations that have worked so hard to ensure that children’s interests are not forgotten as we debate the Bill.
I have already made clear my strong opposition to the removal of the Charter of Fundamental Rights from retained EU law, and colleagues have made clear the damaging impact this is likely to have on children. Amendment 70, which is a probing amendment, goes further than other amendments in this group in that it provides for the full incorporation of those parts of the UN Convention on the Rights of the Child ratified by the UK. The convention covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights to which all children are entitled. Key principles include the best interests of the child being a primary consideration in all actions concerning children, and children being able to express their voices in all matters affecting them.
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The amendment was inspired in part by a recent Coram statement that:
“As the UK prepares to leave the rights framework of the EU, it is an opportunity for parliament to ensure that vital rights for children are protected and continue to be promoted across a diverse range of areas ... now is the time to align the commitments of the UK nations and incorporate the provisions of the UNCRC into domestic law to ensure that the UK shows clear and unambiguous leadership as a champion for children in the world”.
Now is the time, because the EU has an overarching constitutional objective to promote and protect children’s rights, which will be lost. However well individual pieces of domestic legislation such as the Children Act
1989 may do so, they do not provide comprehensive protection, as my noble friend Lady Massey has already said.
By the same token, the amendment was also prompted by the way in which the Government have used the convention to counter arguments that the removal of the charter will damage children’s rights. For example, at Second Reading the Minister stated that,
“children’s rights … will of course continue to be protected under the Children Act 1989 and through our remaining party to the United Nations Convention on the Rights of the Child”.—[Official Report, 31/1/18; col. 1694.]
He hoped that that would provide reassurance—but I am afraid that it does not. As I said, the Children Act is just one piece of legislation. Protection within domestic law is partial and piecemeal, although it is better in the devolved nations. As Ministers know full well, because, as has already been pointed out, it is unincorporated, the convention cannot normally be used to defend children’s rights other than by means of the charter when within the scope of EU law.
The legal opinion provided to the EHRC makes it clear that such international treaties have force in domestic law only in limited circumstances and to limited effect. That is, in effect, recognised in the introduction to the Government’s own right-by-right analysis, and it is exemplified by the case of R(SG) v Secretary of State for Work and Pensions, in which three out of five Supreme Court judges found that the benefit cap was in breach of the UNCRC. However, because the convention is not incorporated, it was left to Parliament to address the issue—which of course it did not. The key argument was that the cap is not in the best interests of the child—as I noted, a key tenet of the convention. The UN Committee on the Rights of the Child has expressed regret that in the UK the right of a child to have his or her best interests taken as a primary consideration is still not reflected in all legislation and policy matters, and children’s views are not systematically heard in policy-making on issues that affect them—as I said, another key tenet.
The Joint Committee on Human Rights, of which I was then a member, in its report on the UK’s compliance with the convention reached a similar conclusion and expressed support for incorporation, as did all the children’s NGOs giving evidence. Although the then Children’s Commissioner preferred an incremental approach, this was on purely pragmatic grounds and on the assumption that we would not be moving in the opposite direction with the removal of the charter of children’s rights protections.
The European Network of Ombudspersons for Children issued a statement on Brexit last October in which it expressed concern at the lack of regard for the voice and position of children and their fundamental human rights in the Brexit process. It called on the UK Government and the EU to conduct a children’s rights impact assessment and to conduct meaningful engagement with children so as to take account of their views. This is particularly important as they did not have a vote in the referendum and may feel powerless in the face of a process that will shape their futures. Indeed, in a consultation held by the Children’s Law Centre in Belfast, the children, we were told, felt angry and frustrated that a decision that will impact on their lives
was taken without them. Earlier today, some of us met some of the children from Northern Ireland. When I told them about the amendment in my name today, they cheered and wished it godspeed.
The ombudspersons network asked each EU Government to communicate to their children’s commissioner or ombudsperson how they would pay due regard to the rights of children during the negotiations. Echoing what my noble friend Lady Massey asked, will the Minister tell your Lordships’ House whether the Government have done that and how they have paid due regard to children’s views and rights since the referendum? I am afraid that, in the Commons, the network’s plea fell on deaf ears. Apart from the valiant efforts of my honourable friend Kate Green, no attention was paid to children’s rights, which were bracketed with animal rights in the Committee debate.
The Minister Dominic Raab assured MPs that,
“the UK’s commitment to children’s rights and the UN convention … is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by UK withdrawal from the EU”.—[Official Report, Commons, 17/11/17; col. 504.]
But, as we have already heard, it will. Children have so far been bystanders in the Brexit process, yet it is their future that we are determining. We have an opportunity in this House to put that right. If the Government’s commitment to children’s rights is really so “unwavering”, I can see no justification for refusing to use this opportunity, as Coram argued, to incorporate the convention that safeguards those rights. I believe that we have a duty to do so.