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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