Joint Committee On Human Rights Written Evidence


4. Memorandum from the Northern Ireland Human Rights Commission

Summary

  The Northern Ireland Human Rights Commission believes that the United Kingdom is failing fully to meet some of its obligations under the International Covenant on Economic, Social and Cultural Rights, and that the Covenant rights should be made enforceable in the domestic courts as has been done with the major provisions of the European Convention on Human Rights.

  Specific problem areas in the realisation of Covenant rights are identified below in relation to primary, secondary and third-level education; in equality of access to rights, particularly for ethnic minorities, refugees and asylum seekers, and people with disabilities; in the employment field, particularly (in Northern Ireland) for Catholic men; in housing rights; in relation to the right to just and favourable conditions of work, and in relation to the right to an adequate standard of living.

  We believe that there are serious deficiencies in the way that Government currently manages the reporting process under the Covenant, as under several other human rights treaties, but that in principle the monitoring of treaty compliance provides excellent opportunities for constructive engagement between Government, statutory bodies such as this Commission, civil society and the international systems of human rights protection.

Introduction

  1.  The Northern Ireland Human Rights Commission is a statutory body established on 1 March 1999 as a result of the Belfast (Good Friday) Agreement of 10 April 1998. The Commission is recognised in the United Nations system and elsewhere as a "national human rights institution" (NHRI), that is, a statutory body independent of government, upholding the internationally agreed human rights standards. We have observer status with the International Co-ordinating Committee of NHRIs (not full membership because our jurisdiction is limited to one legal system within the United Kingdom). The activities of the Commission include reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to human rights, advising on the compatibility of legislation and policy with human rights, and promoting understanding and awareness of human rights. We also assist individuals in legal proceedings where human rights issues arise, bring proceedings in our own name involving law or practice concerning the protection of human rights, and conduct research and investigations.

  2.  All NHRIs seek to ground their activities in the international human rights instruments, and they have certain key responsibilities in this area set out in the UN Paris Principles, to which the UK Government subscribes. The Commission therefore sees as an important part of its work liaison with international treaty-monitoring bodies on the state of human rights in Northern Ireland. We seek to inform the monitoring bodies of any deficiency in the realisation within our jurisdiction of the rights defined and protected by each treaty, and to use the monitoring process to increase awareness of human rights issues. To that end we have made a number submissions to, and/or appeared before, the UN Human Rights Committee, the UN Committee on the Elimination of Discrimination Against Women, the UN Committee on the Elimination of Racial Discrimination, the UN Committee on the Rights of the Child, the Council of Europe's Committee on Economic and Social Rights and other monitoring bodies.

  3.  In April 2002, The Northern Ireland Human Rights Commission made its own submission to the Committee on Economic, Social and Cultural Rights on the UK's fourth periodic report under the International Covenant on Economic, Social and Cultural Rights. Some of the comments and concerns stated in our own submission are reflected in the Concluding Observations and where appropriate this will be highlighted below.

  4.  In line with its statutory duty to review the adequacy and effectiveness in Northern Ireland of law and practice relating to human rights and to advise on the compatibility of legislation and policy with human rights, this Commission will be conducting its own follow-up process to the Concluding Observations of the Committee on Economic, Social and Cultural Rights, in so far as they relate to legislation, policy and conditions within Northern Ireland. The Commission has been concerned that, in the past, rather more attention has been given to the reporting process than to implementing policy and legislative responses to the views of the treaty bodies, and has decided to follow up each treaty examination by contacting the relevant departments within the UK and devolved administrations to seek concrete commitments on key issues. We have already begun this process in relation to the Concluding Observations of the Committee on the Rights of the Child, and (having learned from that pilot exercise) will do so in relation to the other treaties on which we have commented, and as other treaty examinations arise.

  5.  We appreciate this opportunity to give evidence in the Joint Committee's inquiry and welcome the steps being taken by the Joint Committee to monitor the Government's response. Our own efforts in relation to treaty monitoring, and our detailed remarks below, naturally concentrate on Northern Ireland issues and, in the absence of NHRIs for the other UK jurisdictions, the Joint Committee is the obvious forum for engaging with Government on those comments and observations that relate to the rest of the state. We also, of course, recognise the Joint Committee's right to inquire into and comment on Northern Ireland-specific issues quite independently of our own work, although we hope that in most matters we would have similar concerns and would be saying essentially the same things.

  6.  As a final general point, we would expect the Joint Committee not to address the Concluding Observations in isolation but to read them against the authoritative guidance provided by General Comments from the UN Committee, and the Observations and Comments of the bodies that monitor other UN treaties that guarantee economic, social and cultural rights. Some of our remarks below will refer to these additional sources.

Is there a case for incorporation of guarantees of economic, social and cultural rights in UK law? Can the Covenant rights be adequately protected without incorporation?

  7.  The Commission is aware that in relation to a number of international human rights treaties, the UK has consistently argued that the instruments themselves do not require that they be incorporated into domestic law. This has certainly been the case in response to Concluding Observations issued by the Committee on the Rights of the Child and the Committee on the Elimination of All Forms of Racial Discrimination. However, its seems that in terms of interpreting precisely what is best practice under the international treaties and how best rights-compliance can be achieved, it is entirely appropriate that Government, and where appropriate the courts, should recognise the authority of the relevant Committees.

  8.  The Joint Committee will be aware that, since the two fundamental UN Covenants were drawn up, there has been a tendency to view the provisions of the International Covenant on Civil and Political Rights as being more clearly binding on states, and justiciable, than those of the sister Covenant on Economic, Social and Cultural Rights, since the latter are largely expressed in terms of programmatic responses to ensure the realisation of rights over a period of time. To the extent that the ICESCR did not impose immediate and uniform requirements on States Parties, that was intended to reflect the vast differentials in the resources of nations and their institutional capacity to deliver rights. The expectations of the UN in relation to developed industrial economies were rather different from those in relation to the so-called Third World. When the United Kingdom became party to the ICESCR, it committed itself "to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means" (Article 2(1)). That is in no sense a get-out clause; the United Kingdom had at the time, and still has, sufficient resources to deliver all the Covenant rights to all of its people, and it is legally obliged to do so. The ICESCR is not an aspirational document to be implemented piecemeal and at leisure, but an imperative, inescapable and enforceable set of human rights. Progressive realisation, in the context of this particular State Party, means ensuring immediate, general and equal access to every Covenant right, and continuing work to raise the standard of access to each right and to prevent and redress any regression or inequality in the enjoyment of rights.

  9.  It will be clear that the Commission does not agree with the position of successive UK Governments that tend to regard the Covenant provisions as merely setting objectives for public policy, rather than giving legal entitlements to citizens. The Commission's position is to advocate an approach that will give effective access for individuals at national level to all rights under any human rights treaty, including those enshrined in the Covenant. The Commission is of the view that incorporation of treaty rights in national law is of fundamental importance, whether that be done through the domestication of treaty texts (the Human Rights Act model) or through the enactment of fully treaty-compliant ordinary legislation. The former approach is, in principle, preferable in so far as it avoids the ambiguity and uncertainty of scope that can arise in, for example, debating whether the concept of "welfare" in children's law is equivalent to the "best interests" principle in the UN Convention on the Rights of the Child.

  10.  In an ideal setting one might envisage a situation where all the rights acknowledged at international level are respected at national level simply because governments recognise that they have a moral duty to make such provisions for those living within their borders. In reality however, there remains a need to entrench rights in a legal setting, in order to place an obligation firmly with governments to make certain minimum provisions for individuals and to provide an avenue of redress for those individuals whose rights have been or may be violated as a result of government action or inaction. Consecutive Concluding Observations of the Committee relating to the UK indicate that certain rights are not being protected adequately, and this in itself indicates that the current situation is not sufficient in guaranteeing rights for all.

  11.  An important precedent was established when the UK incorporated the European Convention on Human Rights (ECHR) into domestic legislation, so that most of the rights in that Convention are now enforceable through domestic courts. This incorporation constituted an important step in guaranteeing rights and redress for individuals in the UK. That process indicates that Government is aware that incorporation of international standards can help to secure rights to individuals. However, under the ECHR individuals are guaranteed a range of civil and political rights, not the range of economic, social and cultural rights that they have under the Covenant. The UN Committee in its General Comment on the Domestic Application of the Covenant (General Comment No. 9) stated: "Account should be taken of the means which have proved most effective in ensuring the protection of other human rights in the jurisdiction (and any departure from these means with regard to economic, social and cultural rights should be clearly justified)".

  12.  The passage of the Human Rights Act 1998, and its thorough implementation through the courts and through changes in legislation, policy and practice, clearly indicates that the United Kingdom has found domestic enactment and justiciability to be the most effective means of securing Convention rights. These rights had hitherto been available notionally through the state's adherence to the Convention, but in practice only by bringing alleged violations before the European Court of Human Rights in Strasbourg, an expensive, difficult, tedious and often diplomatically embarrassing process. Experience had shown that in the absence of the domestic enactment, Convention rights were being violated with exceptional frequency by the UK authorities (as shown by the number of Strasbourg judgments against this country compared to most other States Parties).

  13.  Given that domestication has been accorded to the Convention rights and has been found to have a very positive effect on protection (through the legal, legislative and systemic or "cultural" impact of the Human Rights Act), and given the basic principle of the indivisibility and interdependence of human rights, the United Kingdom should not differentiate between civil and political rights and economic, social and cultural rights and should follow a similar model of incorporation for the Covenant rights. The analogy with the European Convention might suggest that some of the substantive rights in any such enactment (whether by a new Act or an amendment to the 1998 Act) could be phrased in terms of the rights defined in the European Social Charter, which has the same relationship to the ECHR as the ICESCR has to the ICCPR; but there is nothing in the two Covenants that contradicts either the Charter or the ECHR, so it should not be too difficult to find an approach to incorporation that satisfied both the European and the UN formulations.

  14.  The Commission would also point out that public opinion surveys and our own consultation exercise on a Bill of Rights for Northern Ireland reveal that there is widespread support in Northern Ireland for entrenchment and enforceability of Covenant-type rights. Incorporation would therefore be welcomed on two fronts. First, it would be in conformity with the international consensus that all human rights are interdependent and indivisible, and that poverty and social exclusion represent a fundamental denial of human dignity. Second, it would be responding positively to widespread public opinion, which is in itself an important attribute of any liberal democracy.

Can you provide evidence of areas where you believe the lack of such guarantees leads to lesser or unsatisfactory protection of economic, social and cultural rights, such as to breach the UK's obligations under the Covenant?

  15.  The issues discussed below and indeed the Concluding Observations of the Committee indicate that the UK's protection of economic, social and cultural rights is less than satisfactory. Certain groups within UK society continue to experience serious disadvantage, social exclusion and poverty and clearly are not enjoying full access to the rights guaranteed by the Covenant. To give just one example, years of lobbying and/or consultation have resulted in little socio-economic progress for the Irish Traveller community. Incorporation would put a clear obligation on Government to guarantee the rights of such groups and, when Government fails, incorporation would provide the individual with recourse in the domestic courts, which would in turn set a precedent for future policy and legislation.

Unsatisfactory Protection of Covenant Rights

(a)   The right of everyone to education

The Traveller community

  16.  The Northern Ireland Human Rights Commission in its report to the UN Committee in April 2002 drew attention to the experiences of the Irish Traveller community. In terms of education, the Commission pointed out that 92% of Travellers leave education with no qualifications and that the majority of Traveller children do not attend school regularly after primary education.

  17.  In Northern Ireland, the Office of the First Minister and Deputy First Minister has recently published A Response to the Promoting Social Inclusion (PSI) Working Group Report on Travellers. The document sets out how Government intends to respond to the recommendations of the Working Group and which Government Department will take the lead in responding to each of the areas.

  18.  The response acknowledges: "Few young Travellers stay in education much beyond primary school. Low levels of education, together with the decline of the Traveller economy have contributed to high levels of worklessness and poverty." The PSI report made a number of recommendations to Government on action it ought to take to meet the needs of the Traveller community in a number of areas including health, accommodation and education. The Government's response to the recommendations has not been particularly positive. While in several areas the response states "The Government accepts the thrust of the recommendations" there is no explicit commitment to making extra funding available to support the recommendations.

  19.  The response also refers to the race forum, which is being set up in response to recommendations made by the PSI Working Groups on Minority Ethnic People and on Travellers and which will monitor and review Government's plans as laid out in the response. The forum may identify further action which it believes needs to be taken forward. However, the response also states: "any recommendations it makes will be subject to the normal decision-making, budgetary and planning procedures." It continues: "Departmental Ministers will need to consider the likely costs of implementing any recommendations and whether these can be met from within available resources." Given that Government has consistently failed to secure the rights of the Traveller community for so many years, and that the response itself recognises the "particularly severe disadvantages encountered by members of the Traveller community", it is difficult to see how the problems can be addressed without making additional funding available. A rights-based approach stresses that access to employment, housing and education must be guaranteed by Government. In its Concluding Observations, the UN Committee stated that it "does not find any factors or particular difficulties that impede full implementation of the Covenant in the United Kingdom." This observation, along with the recognition that Travellers have rights to employment, housing and education, puts a clear onus on Government to make the necessary funding available.

Asylum seekers and refugees

  20.  The Commission is also concerned about the lack of access of asylum seekers and refugees to the rights defined in the ICESCR. As is the case for many Covenant rights, some of these issues arise also in the examination of UK compliance with other human rights treaties that touch on economic, social and cultural themes, and the UN Committee on the Rights of the Child has expressed certain relevant concerns. That Committee noted the high rate of temporary and permanent exclusions from school affecting mainly children from ethnic minorities, children with disabilities and asylum seeker and refugee children. This Commission wrote to the Department of Education in Northern Ireland on 5 March 2003 seeking clarification on its strategy for meeting the needs of asylum seeker children in education. A reply from the Department in April explained that Education and Library Boards:

    . . . have been advised that information about the ethnic background of pupils will be required when they move to a computerised system of recording suspensions and expulsions, which is to be installed during 2003-04. This will provide the information to enable us to monitor the ethnic background of pupils who have been expelled.

  21.  This reply, however, does not address the concerns of the UN Committee on the Rights of the Child as it simply refers to a strategy of monitoring the ethnicity of excluded pupils and not a strategy of ensuring that a right to education as enshrined in the Convention on the Rights of the Child and the Covenant is guaranteed to all without discrimination. Furthermore, the problems experienced by asylum seeker and refugee children and the reasons for their exclusion may not be identical to those affecting children from ethnic minority backgrounds with full UK citizenship. The Department's response to this question does not appear to have taken note of this possibility. It is in this area that a rights-based approach is needed with great urgency. There appears to be a need for Government to recognise that, by providing housing and education for those seeking asylum and those with refugee status, the UK is not bestowing special favours on these groups but meeting its obligations under international law. Asylum-seeker and refugee children have very specific rights under Article 22(1) of the CRC, which are of course endorsed by the Committee on Economic, Social and Cultural Rights:

    States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

People with disabilities

  22.  In the Commission's report to the UN Committee it was pointed out that existing legislation in Northern Ireland did not protect people with disabilities from discrimination in education. There has been some progress in this area. In 2002, the Department of Education in Northern Ireland launched a consultation process on Special Educational Needs and Disability. The legislation, once passed, will extend the provisions of the existing Disability Discrimination Act to cover education.

  23.  This Commission, in its response to the Departmental consultation, stressed that under the Covenant all individuals have a right to education. It was also pointed out that in its 11th Session the Committee on Economic, Social and Cultural Rights commented: "School programmes in many countries today recognise that persons with disabilities can best be educated within the general education system". To ensure that this process of inclusion is a successful one, and that in line with the Concluding Observations of the Committee persons with disabilities are not discriminated against, the Commission stressed the need for the legislation to be backed with appropriate budget allocations. The Commission referred the Department of Education to the UN General Assembly Standard Rules on the Equalisation of Opportunities for Persons with Disabilities which state: "education in mainstream schools presupposes the provision of interpreter and other appropriate support services. Adequate accessibility and support services, designed to meet the needs of persons with different disabilities should be provided."

  24.  This Commission also stressed that the legislation needs to be extended to protect persons with disabilities from discrimination in work placements and by professional qualifying bodies such as the Royal College of Pharmacy.

  25.  It is important to ensure that the legislative process takes into full account the views and concerns expressed in that process and is therefore not rushed. It is equally a matter of urgency that individuals be protected from discrimination in the education sector. The Commission, of course, recognises that this is not an easy balance to strike. However, the Rights, Equality and Inclusion Unit at the Department of Education, which is responsible for considering the consultation responses, is seriously under-staffed at present. There is no indication of when vacant posts will be filled, and this may in turn have implications for when the Bill itself will be the subject of consultation and when the legislation will reach the statute book. Clearly it is important that such a Unit be staffed and resourced appropriately in order to ensure that this balance between the need for thoroughness and urgency is indeed struck. In the meantime, students and pupils in Northern Ireland fail to be protected by adequate legislation in the education sector. By acknowledging education as a right to which all individuals are entitled rather than a provision that is subject to budget allocations and political whims, there would be less scope for individuals to be left unprotected in this way.

Equal access to education

  26. The relationship between social class and educational achievement is well known in the UK, and Article 13 of the Covenant not only sets out a right to education and the social aims that education should serve, but requires States Parties to provide the conditions for the realisation of the right to education. The key issue is equality of access. Covenant compliance issues arise in relation to primary, secondary and third-level education.

  27.  The children of professionals are four times more likely to secure at least two A-level passes than those of semi-skilled or unskilled workers. Since it is known that students from the lower social groups are almost as likely as those in group I to go on to university if they secure two A-levels, it is clear that the key to redressing inequality of access to third level is to improve the performance of the under-represented groups at secondary level. That is unlikely to happen in the context of a selective system of secondary education that, while premised on selection for academic ability, operates in practice to select for social class. One might speculate as to what sort of shifts in education policy would be capable of redressing the current imbalance in access to the third level and maximising equality of educational opportunity; it can at least be said that there is little evidence that the present approach is driven by a sense of urgency about the progressive realisation of equal access.

  28.   The Education and Child Poverty Report was published in March 2003 by End Child Poverty (a coalition including the TUC, the Local Government Association, Barnardos, the NSPCC and the National Council for One Parent Families). It reveals that the attainment gap between poor and better-off children is evident at just under two years of age and widens at primary and secondary school, so that poorer children are one-third as likely to get five or more good GCSEs as their wealthier counterparts. The report shows that the rate at which the performance of children from different social classes diverges during secondary schooling is faster in areas where the 11-plus system is retained. Certainly in Northern Ireland there is substantial research evidence to show that the 11-plus system continues to perpetuate rather than bridge the gap between poor and better-off children.

  29.  Post-primary education in Northern Ireland is currently under review and, if this process is to address the concerns raised in the ICESCR examination, the Commission would urge that it take full account of the international standards including those in Article 2(2) of the Covenant. The adverse effects that the selective system has on children from less privileged backgrounds currently compromise the rights of such children under the Covenant, and the persistence over many decades of a strong correlation between social class and educational participation and attainment demonstrates the state's failure to secure progressive realisation of the right to education.

  30.  Some 72% of university students come from social group I, and only 13% from group V. If there is to be any meaningful progress towards equalising access to universities on the basis of capacity (as required by the Covenant), it is obvious that two of the most important considerations will be the student support system and whether tuition fees are charged. The UN Committee explicitly stated that the introduction of tuition fees and student loans was not only "inconsistent with article 13(2)(c)" (which commits States Parties to "the progressive introduction of free education"), but had in fact "tended to worsen the position of students from less privileged backgrounds". It is therefore incumbent on Government to demonstrate that the social impact of loans and so-called "top-up fees" will be addressed, and that further changes to student support, such as the reintroduction of maintenance grants, will be directed at increasing third-level participation by disadvantaged students.

  31.  Since the Concluding Observations of June 2002, the UK Government has of course published its White Paper, The Future of Higher Education, and more recently a paper entitled Widening Participation in Higher Education. While the White Paper sets out a strategy only for higher education in England, it will undoubtedly impact upon students in Northern Ireland wishing to apply to English universities.

  32.  One of the central themes of that White Paper is amending financial support in order to increase access to higher education for students from less privileged backgrounds. This in itself indicates that Government acknowledges that the existing student support system is failing potential students from less privileged backgrounds. Indeed the Paper states: "The social class gap in entry to higher education remains unacceptably wide. While many more people from all backgrounds benefit from higher education, the proportion coming from lower-income families has not substantially increased. It means a waste of potential for individuals and for the country as a whole".

  33.  The White Paper as it stands could potentially introduce a number of anomalies. First, students resident in Northern Ireland wishing to apply to an English university that has decided to introduce a system of top-up fees will be expected to pay these. However, such students will not necessarily have access to the same financial assistance as students from England, since that would require equivalent legislation in Northern Ireland. Given that the amendments in financial support in England are intended to increase the numbers of students from less privileged backgrounds one can assume, by the Government's own logic, that the absence of such amendments in Northern Ireland will fail to increase the number of Northern Irish students in English universities. This is a significant problem given that Northern Ireland only has two universities[14] Students from Northern Ireland therefore have less choice of courses within their home jurisdiction, and this is particularly important for those wishing to apply for courses such as medicine or dentistry, which are only offered by one of the universities here. The Commission is concerned that unless the Department for Employment and Learning gives due consideration to this issue there is the possibility that students from Northern Ireland will be discouraged from applying to English universities, that their choices will be further restricted and that this will in particular have an adverse impact on students from low-income families.

  34.  A related issue is highlighted by research that shows that Northern Ireland students face discrimination in securing a university place at an English university. Research undertaken by Tariq Modood and Michael Shiner on university selection practices reveals:

    The ethnic bias . . . did not only affect non-white minority groups. Applications made by candidates from Northern Ireland to institutions in England, Scotland and Wales were considerably less likely to yield an initial offer than those from residents of any other UK region. This remained the case even when other differences, including academic ones, were taken into account and appeared to be equally applicable to applications made to old and new universities[15]

  35.  The likely effects of the new system on students from Northern Ireland wishing to study at an English university need to be examined thoroughly and publicised widely by the relevant Departments. In the particular context of the Covenant, they require a detailed assessment in terms of the progressive realisation of equality of educational opportunity.

  36.  This Commission is also concerned that nowhere in the White Paper is it stated that Government recognises education as a human right. This is particularly surprising when one considers that, in addition to the Covenant provisions, the right to education has already been enshrined in domestic law (albeit in a less extensive manner) through Article 2 of the First Protocol to the ECHR, as part of the Human Rights Act 1998. The Paper appears to give most weight to pointing out that by accessing higher education individuals are able to make a greater economic contribution to the State, and that access should be widened for that reason. While this is indeed the case, such a crude calculus is not appropriate in human rights terms as it implies that should a university education become less economically advantageous for the state it will cease to strive to provide it in line with the Convention.

  37.  The White Paper refers to Agreement to Access arrangements, which universities must commit to should they decide to introduce the system of top-up fees. It is difficult to comment on this arrangement without further information on exactly what steps universities will be expected to take to encourage applications from groups currently under-represented in English universities. Will this extend to outreach initiatives for students outside England? The Commission would urge that it is vital that Government publicises and consults on this process widely.

  38.  The Commission is of course aware that the process for reforming higher education is still at a very early stage and is still subject to consultation and debate. The current system, as already indicated, is far from satisfactory and Government has indeed acknowledged this problem.

  39.  The National Union of Students-Union of Students in Ireland (NUS-USI) has consistently argued that the student loan system deters individuals from lower income families from applying for higher and further education. In March 2003, the NUS released preliminary figures from a report into the attitudes of Year 10 pupils and their parents to higher education. The research found that 85% of students who wanted to go to university would change their minds if they could expect to accumulate a debt of £20,000 on graduation. A third said they would not go to university if fees were raised to £2,000 a year and this figure jumped to 60% if the fee was £5,000 a year[16] NUS-USI has commented: "This is the first time debt tolerance amongst young people has been tested and proves that the fear of debt is very real".

  40.  It seems that the UK has been regressive rather than progressive in its obligation to achieve free third-level education in line with Article 13(2)(c) of the Covenant. Previously the Education and Library Boards in Northern Ireland paid a student's full fees to universities along with providing a maintenance grant. Now many students are expected to contribute towards their fees and to take out a student loan in order to meet basic living costs for food and accommodation. It appears disingenuous that the UK, despite being the fourth richest country in the world in terms of GDP, claims that it is unable to continue providing free tertiary education to students when the Covenant firmly expresses that as the objective even for states much poorer than the UK. (While the Article refers to "progressive introduction of free education", this is to be read with the Article 2 commitment to apply "the maximum . . . available resources".)

  41.  Another problem regarding the student loan system has been brought to the attention of this Commission. Islamic law forbids the giving and taking of interest and a number of Muslim students accordingly feel unable to take out a student loan because of its interest bearing element. The Department for Employment and Learning in its report of April 2001 admitted:

    The present loan scheme, with its interest bearing loan element, has an adverse impact on students of the Moslem faith since some Moslems believe that it is against Islamic law to take out a loan where there is an interest element, notwithstanding its index linked nature.

  42.  The Commission has written to the Department for Employment and Learning in Northern Ireland asking that it engage in dialogue with Muslim students and scholars of Islamic law in order to reach a satisfactory solution to this problem. The Department has replied stating that the Department for Education and Skills (in England and Wales) is in regular contact with Muslim students, but it did not tell us whether the matter of student loans has been discussed.

  43. The letter also stated that in any case this is a problem that affects only a small number of students. However, such a stance does not appear to comply with the international standards that accord every individual a right to education regardless of (among other things) their religion. It is difficult to see how those Muslims who feel they would compromise their religious beliefs by taking out a student loan could enjoy a university education without doing so. Muslim students are more likely to come from lower-income families than any other ethnic group. More than 80% of Pakistanis and Bangladeshis (these groups being the majority of Muslims in the UK) live in households whose income is below the national average. That the current system could be deterring Muslims from entering higher education on religious grounds, quite apart from the correlation we have already noted between poverty and access, is surely a matter that under the Covenant requires specific attention from Government[17] Once education is acknowledged as a right that must be guaranteed to all, Government must seek to remove the obstacles that prevent enjoyment of that right.

Integrated education in Northern Ireland

  44.  The Joint Committee will be well aware that, in Northern Ireland, most schools are de facto Protestant or Catholic, with a small integrated sector. The relatively limited opportunities for integrated education were noted by the Committee on Economic, Social and Cultural Rights in 1997 and have also been noted by the Committee on the Rights of the Child in its Concluding Observations of 2002. However, this Commission stands by its position that, in Northern Ireland, religious separation is not a segregation imposed by the state but rather one that answers to parental preference, and that it would not be desirable for the state to impose, rather than facilitate, integration. The international human rights standards (notably the Covenant itself, Article 13(3)) require that parents should be free to send their children to schools that are in conformity with their own beliefs, and on a strict reading of the standards this makes it rather easier to discern a case for separate schools than for integrated schooling.

  45.  The Commission does however acknowledge that integrated education can be a matter of "belief" in the broader sense of the value system that impels some parents to seek to have their children educated together with those of different faiths. We also acknowledge that human rights principles require the state to make available in Northern Ireland education through the medium of Irish, and that those who favour integration contribute to the financing of the education system in the same way as others. In principle a system that can sustain Protestant, Catholic and Irish-medium education ought also to be able to meet the demand that exists for integrated education.

  46.  The Commission therefore believes that public funding should be made available on an equitable basis, subject to reasonable criteria of viability, to schools in all sectors. We would wish to see a situation where every family that wanted to avail of integrated education (and Irish-medium or either of the main sectors) was able to do so. We suggest that the Department of Education in Northern Ireland should produce a concise statement of how it intends to address the demand for integrated education, referring to its understanding of the obligations that arise from the ICESCR, and other human rights principles that it is taking into account. This should deal carefully with the resources issue that has to date (as we understand it) been the main factor limiting supply, because, where human rights principles are engaged, the UN tends to have little patience with resource arguments coming from one of the wealthiest countries in the world.

(b)   Employment

Irish Travellers

  47. The rate of employment amongst the Irish Traveller community is 70% and this is undoubtedly linked to low levels of educational achievement within that community, combined with the effects of racial prejudice amongst the general population in Northern Ireland.

Catholic unemployment

  48. The 2001 Northern Ireland Census shows that the unemployment rate for Catholic men is 10.8%, compared with 5.9% for Protestants. Thus, Catholic men are almost twice as likely to be unemployed as their Protestant counterparts. This, of course, is not a new phenomenon. In a previous set of Concluding Observations, in 1997, the Committee expressed alarm that the rate of unemployment among Catholics was approximately twice that of Protestants. That year, the Committee identified Catholics as a group requiring particular social assistance. From the latest figures it can be seen that the situation has not improved since 1997; in fact the religious differential in unemployment has changed little over the past 30 years (the 1971 Census reported the Catholic rate at two-and-a-half times that of Protestants).

  49. It is hard to counter the propositions that years of equal opportunities policy and anti-discrimination legislation have failed to redress the disadvantage suffered by the Catholic community in Northern Ireland, and that there is an urgent need for Government to take stock of this failure and embark on a concerted effort to address the situation. The current process of developing a Single Equality Bill for Northern Ireland may address some of the shortcomings in protection against discrimination. For example, while it seems likely that Catholic males are discriminated against in ways that men in general, or Catholics in general, are not, the present legislation requires proof of discrimination on gender grounds or on religious grounds, failing to take account of the existence of this combined category. (Similar considerations arise in Great Britain in relation to black male unemployment.) In order to demonstrate its commitment to the progressive realisation of equality of opportunity in the labour market, as required by Article 2(2) read with Articles 6 and 7, the UK may need to explore approaches, in Northern Ireland and in Britain, that go beyond the prohibition of discrimination and effectively promote affirmative action. There is, in fact, already some scope for positive measures within the present law, such as training targeted on the unemployed, but this has not had a significant impact on the scale of the differential.

(c)   Housing

Overcrowding

  50.  The 2001 Northern Ireland Census also revealed that 65% of people living in overcrowded households are Catholics, 33% are Protestants. While the Commission would stress that there is no acceptable level (for any community) of overcrowding within the terms of the Covenant, it is evident that Catholics face particular disadvantage in housing and therefore the UK is failing in its duties under Articles 2(2) and 11 of the Covenant.

Housing conditions

  51.  The Commission pointed out in its report to the UN Committee the high level of unfit dwellings in Northern Ireland, especially in the west of the region; the unmet demand for social housing, especially in certain areas of Belfast; and the social impact of requiring the Housing Executive (a statutory agency and the largest social landlord) to sell off around a third of its housing stock while preventing it from building any new social housing. To date, the Commission is not aware of any of these problems having been addressed.

Irish Travellers

  52.  Initiatives intended to meet the needs of Travellers have not been successful. Irish Travellers, like all other groups and individuals in the UK, have a right to adequate accommodation and an adequate standard of living under Article 11 of the Covenant. However Government has not responded appropriately to the needs of Irish Travellers in this area. Sanitation is often seriously lacking on serviced and "side of the road" sites. The Northern Ireland Housing Executive, which is responsible for meeting the accommodation needs of Irish Travellers, has recently launched a report outlining the situation facing the community and a strategy for meeting needs. However, again, it is difficult to see how this situation can be resolved without Government providing the necessary funding and there has been no explicit commitment to do so.

(d)   Just and favourable conditions of work

  53.  Concerns raised in the Covenant examination over minimum wage policy in the UK have also been expressed by the UN Committee on the Rights of the Child. The Committee noted that policies with regard to minimum wage reflect schemes implemented by the UK that are aimed at encouraging young people to study and improve their skills. However, it was noted with concern that the national minimum wage does not apply to young workers above the minimum age of employment on these schemes. The Committee noted that these schemes may discriminate against children who must work, and that therefore the UK ought to reconsider its policies regarding the minimum wage so as not to discriminate against the most vulnerable children who must work.

  54.  In addition, the fact that no minimum wage applies to children under the age of 18 has led to situations where children are paid alarmingly low wages for their work.

  55.  National minimum wage policy continues to be criticised by the trade union movement in the UK, which has argued that the current rates are still too low to guarantee an adequate standard of living. The Northern Ireland Human Rights Commission, while supportive of the principle of a minimum wage as being consistent with human rights principles, has not yet taken a position on the appropriate level, but it may wish to address that question in the future. The current policy does have a disproportionate effect on women and people from ethnic minorities-as groups that are substantially more likely to be employed in industries that pay minimum rates. In turn these are also the groups within society that are most likely to live in poverty. If, as is often argued, the current minimum wage is not sufficient for ensuring an adequate standard of living, Government would be failing to address its obligations under Articles 2, 6 and 11 of the Covenant.

  56.  Child poverty remains a very serious problem in the UK and Government has failed to meet its own targets for reducing its incidence. Child poverty can be linked to minimum wage policy, first to the extent that the level set for the wage may not be sufficient to enable working parents to provide for their children, and second because those children who are economically obliged to work are not at present entitled to the minimum wage. Of course, while the persistence of child poverty may present arguments for raising the minimum wage rate and for extending it to child workers, this does not absolve Government of its responsibility for providing adequate tax relief and welfare support to low-income families, and for ensuring that children are not being forced to work in order to contribute to household income.

(e)   An adequate standard of living

  57.  The Commission recognises the inextricable link between, on the one hand, housing, education and employment practices and policies in a state and, on the other, the poverty and social exclusion experienced by individuals and groups. There is therefore a need for Government to take a holistic approach to tackling poverty and social exclusion. For example, broad programmatic approaches to poverty reduction need to be accompanied by special measures to address the discrimination experienced by minority ethnic communities, certain religious groups and people with disabilities in areas such as education and employment, since patterns of prejudice not only threaten their rights to education and employment enshrined in the Covenant but also undoubtedly impact upon their right to an adequate standard of living. A particularly high level of poverty remains in Northern Ireland and Government has responded by introducing a Targeting Social Need strategy, to which all Government Departments must adhere to in legislative and policy initiatives. There is a need to monitor closely the impact of that strategy on those it is intended to aid.

The Reporting Process

What more could be done to increase awareness of the reporting process? What steps could be taken to make the reporting process more useful or relevant to government or wider civil society?

  58.  The view of this Commission is that there needs to be not only a general awareness of the reporting process but also a much more effective inclusion of civil society in that process. Government practice on both fronts has been lacking. This Commission, despite the UK's recognition of the Paris Principles which accord National Human Rights Institutions a very specific role in the reporting process, was not consulted during the drafting of the UK Fourth Report. In fact the Commission was not even provided with a copy of the UK's report.

  59.  We have identified a number of problems around the reporting process and are taking steps to deal with as many of these as are within our power to address. First, there has to date been a general lack of awareness within the Whitehall departments that co-ordinate UN reports, and even within the Northern Ireland administration, of the existence and functions of this Commission. We have made some advances in this area through persistent letters, e-mails and telephone calls to relevant Ministers and officials explaining our role. Some progress has been made with other treaties and to date we have received drafts of two UK Reports, to the Committee Against Torture and to the Committee on the Elimination of Discrimination Against Women. However, we were given very little time to comment on both drafts, particularly given our small staff and the many demands on our time. In any case, it is regrettable that these exchanges were necessary, and that the Departments had clearly not been briefed about the Commission's role and functions already.

  60.  Second, there appears to be a general problem of lack of timely consultation with civil society in preparation for the reporting process. Clearly, resolving this situation is beyond our control but we are aware that in Northern Ireland this has led to NGOs feeling that they have no real engagement with the UN system. We have noted in relation to a number of other treaties that drafting of the report tends to be a rushed process with information being gathered and verified just weeks before the report is due for submission. This has meant that relevant statutory agencies, such as our own, trade unions and employer organisations (which should have views on ESC matters) and the NGO sector have often not been consulted or kept informed of the drafting and reporting process, and/or have not been given sufficient time to be part of that process. Generally, the onus has been on the organisations themselves to find out when the report is due, when it has been submitted and when the examination is to take place. Government should keep interested parties informed of all this through regular mailings (electronic and postal) and by keeping relevant websites updated.

  61.  Ideally civil society needs to be included in the reporting process from an early stage, and between reporting cycles the interested groups need to be given an opportunity to relate their concerns and comments to Government through seminars and roundtable discussions at national and regional level. Civil society needs to be kept informed of exactly when the report is due, when interested groups will be provided with drafts to comment on and when the UN examination is to take place. Appropriate time needs to be given to all groups to comment on drafts, organise their own seminars/roundtables if need be and then prepare their own shadow reports. For all its imperfections to date, the approach taken by Government in developing a National Action Plan Against Racism (as part of the follow-up to the UN World Conference Against Racism) has actively reached out to the most affected sections of society.

  62.  Once the examination has taken place and Concluding Observations issue it is vital that Government responds. The Government and each of the devolved administrations might, for example, establish a cross-departmental group that will address the observations and recommendations and set out a national plan of action. Such a process would need to be informed by input from national and regional levels and again it is important that civil society is included in that process via national and regional seminars/roundtables and mailings.

  63.  In terms of making the reporting process more useful or relevant to Government, we respectfully suggest that the Joint Committee's question may be misplaced. The real issue is whether Government wishes to avail of the process so as to meet its commitments and obligations under the Covenant. If the will to use it is there, it seems to us that the process is already extremely useful and relevant, and needs only to be better disseminated so as to ensure:

    (a)  that compliance with human rights obligations is routinely assessed in the policy-making and legislative initiatives of Government;

    (b)  that the attention of Government is focussed on addressing, in particular, the needs of those groups whose rights it is failing to secure; and

    (c)  that civil society becomes more accustomed to holding Government to account against the international human rights standards.

  64.  The reporting process, from the drafting stage right through to the determination of necessary follow-up measures, provides Government with an excellent opportunity to engage fully with civil society, to listen to and respond to the views of interested parties, to engage constructively with the international experts in interpreting and applying the Covenant provisions, to learn from the Concluding Observations and consequently to show its commitment to international human rights standards. All of this can be achieved only if adequate time and resources are given to the process, but that again is entirely a matter of political will. Just as there is no economic justification for the United Kingdom failing to deliver the full range of Covenant rights, there is absolutely no reason why a Government sincere about the realisation of those rights could not make the modest additional investment required to secure an open, honest, participatory and productive reporting process.

April 2003





14   There is also, of course, an Open University presence. Back

15   Tariq Modood and Michael Shiner "Help or Hindrance? Higher education and the route to ethnic equality" in British Journal of Sociology, June 2002. Back

16   The study, undertaken by Professor Andrew Church and Judith Watson at the University of Brighton, questioned 1,000 pupils from comprehensive schools where achievement was around or below the national average. Back

17   "Race in Britain: The Facts", The Observer, 15 July 2001. Figures are from the Policy Studies Institute's national survey. Back


 
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