Children's Rights and the Influence of Lord Sales in the UKSC's Political Constitutionalist Turn

On 9 July 2021, the Supreme Court (UKSC) handed down two judgments relating to children's rights – R (AB) v Secretary of State for Justice (‘AB’)¹ and R (SC, CB and 8 children) v Secretary of State for Work and Pensions (‘SC’)² – in which it signified, both to the legal and human rights word but also to other branches of government, a distinctly political constitutionalist worldview.

In short, political constitutionalism is the view that constraints on governmental power are ultimately political, not legal. On this view, international law, unless expressly incorporated, does not represent the polity's sovereign will and should be treated with caution vis-à-vis domestic law.³ Important decisions – especially those concerning human rights – should be taken primarily by politicians, not judges. Judges should accordingly show deference when reviewing such decisions.⁴ It sits in contrast to legal constitutionalism, which considers law to be an important constraint on governmental power.

Whilst some commentators have identified Lord Reed – the Court's President – as being the driving force,⁵ this note will suggest that the impetus behind the UKSC's political constitutionalist “turn” is Lord Sales' legal philosophy. This will be demonstrated by showing that the Court's findings on the four general issues of importance addressed – one in AB and three in SC – all reflect views which can be attributed to Lord Sales either explicitly or implicitly through his extrajudicial writings. In this way, Lord Sales' – in his own words – “thumbprint”⁶ can be identified on these judgments' pages. This article will conclude by recommending that, in light of Lord Sales' young age and the likely longevity of his judicial career, public lawyers wanting success in the UKSC should engage with his writings.

AB was a challenge against a 15-year-old offender's solitary confinement in a young offenders' institution. Two arguments were advanced: first, that the solitary confinement of anyone under 18 automatically violates article 3 of the European Convention on Human Rights (the primary argument); alternatively, that such treatment could only be compatible with Article 3 where it is “strictly necessary” (the alternative argument).⁷

The general issue of importance, which was contained within the primary argument, asked: under the Human Rights Act (HRA), could domestic courts not merely “go beyond” the ECtHR jurisprudence, but do so in a manner which required adopting a position premised on an unincorporated international treaty, here the United Nations Convention on the Rights of the Child (UNCRC)?⁸ This issue relates to the HRA's proper ambit and is thus of constitutional importance, as Lord Sales has previously recognised.⁹

Counsel argued in summary that: Article 3 should be interpreted harmoniously with the UNCRC; the UNCRC should in turn be interpreted in accordance with the views of the UN Committee on the Rights of the Child (the Committee), as expressed in General Comments (GCs) and country reports, which are to be regarded as “authoritative”; two GCs and the Committee's 2016 UK country report had authoritatively established that the UNCRC absolutely prohibits solitary confinement of persons aged under 18.¹⁰

As can be seen, the primary argument was not premised on the ECtHR's jurisprudence, but instead wished the domestic court to “go beyond” that and rely on provisions of the UNCRC. According to the Court, such a course was “not open” under the HRA.¹¹ “Parliament can… legislate to provide for rights more generous than those guaranteed by the Convention, but it did not do so when it enacted the [HRA]”.¹² With respect to prior references to GCs as “authoritative”,¹³ the Court clarified that the CRC has no power to make binding decisions on the CRC, nor the ECHR's interpretation.¹⁴ The primary argument was thus rejected.

Turning to the alternative argument, there was no support in the European jurisprudence for ‘strict necessity’ being the test applied for solitary confinement.¹⁵ Whilst the ECtHR may adopt this in future, it is not within the domestic court's function to anticipate such significant development in the ECHR's application.¹⁶ The alternative argument was thus also rejected.

Although Lord Sales has not previously directly addressed the general issue of importance here – on whether the HRA can be used as a conduit...