Let there be no future doubt about it? Children's rights in the UKSC

When the unanimous judgment in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 was handed down, it felt like a bit of a sea change had occurred. We had seen indications that the Supreme Court were becoming increasingly concerned with the perception that they were interfering in political matters in the Begum [2021] UKSC 7 case. However, the decision in SC and in R (AB) v Secretary of State for Justice [2021] UKSC 28 (handed down on the same day) gave a warning from the President of the Supreme Court about "campaigning organisations" litigating what Lord Reed perceived to be failed political campaigning for the rights of children. His concern was that this, coupled with the wide discretion left to courts when considering ECHR obligations left courts vulnerable to undue interference in the sphere of political choices.

Last week, to guide us through this sea change, Doughty Street Chambers' Children's Rights Group organised the event "What Future for Children’s Rights before the Supreme Court?" chaired by Adam Straw QC. Jamie Burton QC, Shu Shin Luh and Professor Aoife Nolan took us through both SC and AB giving practitioners and professionals working with children a thorough breakdown of the cases, their impact and what was missing from the judicial analysis. If you were unable to join us for the illuminating talks this blog is to be a brief overview of what was discussed. However, I highly recommend watching the recording in full available here.

Adam Straw QC kicked off the event, building on his passle published last week, taking us through key aspects of the judgments. 

Jamie Burton QC took us through what he thought were "The Good, The Bad, and The Ugly" in the judgments. Jamie importantly reminded us that these were ambitious arguments advanced by those representing the claimants in SC and AB: SC concerning a challenge to primary legislation and AB  seeking to have a presumption of Article 3 ECHR breach for solitary confinement of children. Jamie highlighted that the good was the clarification about the manifestly without reasonable foundation test; despite Lord Wilson's now-infamous words in DA that there was to be no future doubt about the appropriate test for justification under Article 14 ECHR in the realm of social and economic policy, there was almost immediate doubt in JD v United Kingdom [2020] HLR 5. In SC, clarification was not only provided to this test being a flexible rule [SC, 152], but also that where suspect grounds are engaged (sex, race, disability) the public authority will need to show "very weighty reasons" to account for the difference in treatment [SC, 159]. The bad was the "unequivocal" confirmation that it is not open to the UK courts to determine whether or not the UK is acting in compliance with its human rights obligations insofar as unincorporated treaties are concerned - in this case the UN Convention on the Rights of the Child ("UNCRC"). This was a move away from the obiter in DA, Mathieson and SG (see Shu Shin's view on this below). Indeed, Lord Reed in AB even examined the General Comments of the UN Committee on the Rights of the Child. Lord Reed hamstrung the previous dicta that these comments were "authoritative". The ugly was the move away from the principle (supported by many authorities) that it is not up to the courts whether or not particular legislation is compatible based on the quality of the debates in Parliament [SC, 182]. Also ugly was the emphasis on so-called politically motivated challenges by campaigning organisations. This risks missing the difference between political advocacy and legal advocacy which require different intellectual rigours and consideration of who you are advocating to: Government departments versus courts.

Shu Shin Luh recentred the impact of SC and AB in the context of the decision not to implement the UNCRC. Shu Shin reminded us that the UK took the decision that implementation would only be necessary if there was "non-compliance". Considering where we are now, the case for incorporation is stronger. Shu Shin forensically examined the previous dicta in DA, Mathieson and SG that had been relied upon by lawyers and squared up to the possibility that maybe we had not come as far as we thought. In reality the case law concentrated on the procedural obligations under Article 3.1 UNCRC (best interests of the child) which is "just a fraction" of what the UNCRC guarantees. Indeed, Shu Shin, highlighted that divorcing Article 3.1 UNCRC from other rights under the UNCRC makes it all too easy or tempting when the tide changes to side line the UNCRC, particularly in the context of social and economic rights. While this makes the case for incorporation really strong, we will have to "wait and see" what happens with the UK Government's challenge to Scotland's incorporation of the UNCRC.

Prof Aoife Nolan opened by highlighting that SC is a child rights decision which engages very little with the lived experience and real life impacts of the policy on children. Prof Nolan focused her analysis on the primacy of democracy which featured throughout Lord Reed's judgment: were children and their rights abandoned to democracy? The Supreme Court emphasised that the appropriate forum for deciding issues of social and economic policy was the political process that can take into account the values and views of all members of society. However, Prof Nolan highlighted, children do not vote and so their values and views are not taken into account; this is exacerbated by demographic factors of who votes and who does not vote and the views that are important to the different demographics. There is a need, she said, for greater attention and scrutiny for when it comes to child rights impact outputs of democratic decision-making. This is recognised in other jurisdictions; for example in Germany and Colombia where it has been said that the position of children has been a ground for enhanced judicially enforced human rights protection for children. Indeed, when dealing with children, litigation is particularly important: the avenues open to those such as lobbying groups are not open to children. Prof Nolan's final remark was to keep an eye on Lord Reed's dicta concerning whether age could be a ground of discrimination [SC, 62]. 

When coming away from a thorough exposition of these judgments, it can be easy to feel despondent at the future state of children's rights in the UK courts. However, the hope impressed upon us by: (i) the recalibrating of the manifestly without reasonable foundation test; (ii) the case for the domestic incorporation of the UNCRC; and, (iii) the tools to remedy the displacement of children's rights for democracy, give us reason to persevere. Wrestling through these issues in the political or legal arenas is not a hopeless endeavour. Eventually the tide shifts, just as it has done here, and when it does, it is important (and comforting) to know that those who seek to protect vulnerable groups are well-equipped and ready to ensure that the human rights of all are protected.