Joint Committee On Human Rights Written Evidence


6. Memorandum from Children's Law Centre and Save the Children UK in Northern Ireland

Introduction

  1.  The Children's Law Centre (CLC) and Save the Children UK (SC) in Northern Ireland are the two main Northern Ireland based children's rights non-governmental organisations (NGOs). We lead NGOs in the children's and young people's sector in advocating for the implementation by Government of international human rights standards as they apply to children and young people in Northern Ireland. We employ a dedicated Children's Human Rights Advisor whose role is to engage with the human rights systems and instruments, both at a UN and a European level, with a view to securing the mainstreaming of children and young people's rights domestically.

  2.  Accordingly we sincerely welcome the decision of the Joint Committee on Human Rights (hereinafter the Joint Committee) to conduct an inquiry into the concluding observations on the UN Committee on Economic, Social and Cultural Rights. We believe that such inquiries act as a very valuable mechanism for parliamentary scrutiny in respect of the UK Government's compliance with its international human rights obligations. This is all the more essential given that the periodic examination process provides so far the only external scrutiny of the government's compliance with the obligations stipulated in the Covenant on Economic, Social and Cultural Rights (hereinafter the Covenant)

  3.  Both CLC and SC have considerable experience of working with the UN treaties and the treaty monitoring bodies which we hope might usefully inform the Committee's examination of the UK Government in respect of its compliance with the Economic, Social and Cultural Covenant.

Mainstreaming of Children's Rights in the Covenant

  4.  While CLC and SC have prioritised engagement with the Committee on the Rights of the Child[27]we view the mainstreaming of children and young people's rights across all treaties and the work of the treaty monitoring bodies as a crucial tool to ensure the State's accountability for all human rights of children and young people. To this end we are also currently engaging with a number of other treaty bodies and special procedures including CEDAW, CERD and recently with the UN Special Rapporteur on the Right to Education. We contributed to the alternative NGO report to the Committee on Economic, Social and Cultural Rights compiled by the Committee on the Administration of Justice (CAJ) in 2002.

  5.  In relation to social, economic and cultural rights we believe that for children, rights such as the right to adequate housing, health care, education, social security and an adequate standard of living rank as very important in the category of rights. After the UN Convention on the Rights of the Child the UN Covenant on Economic Social and Cultural Rights is a crucial UN treaty in terms of the potential it holds to positively impact on the lives of those children and young people most disadvantaged. We were very interested therefore to read the most recent concluding observations on the UK from the Committee on Social, Economic and Cultural Rights. We have incorporated reference to a number of the recommendations into our children's rights advocacy work, particularly those on the inclusion of effective protections for social, economic and cultural rights in a Bill of Rights for Northern Ireland (para 29), physical punishment (para 36) [28]human rights education training (para 30), discrimination (para 31), minimum wage (33) poverty (37) and integrated education (42).

  6.  It was encouraging to see that a number of recommendations made by the Committee on Economic, Social and Cultural Rights have also been made previously by the Committee on the Rights of the Child (concluding observations 2002) in respect of children and young people's enjoyment of the particular rights concerned. [29]These include recommendations in relation to discrimination, accommodation, minimum wage, poverty, human rights education and integrated education (see below). We very much welcome the reinforcing of these issues by two separate UN committees and we believe such attention gives an added imperative to government to fully recognise the serious denial of rights involved and respond accordingly.

  7.  There is a real danger that in considering its obligations under the Covenant the government will overlook children and young people as rights holders in relation to the rights contained in the Covenant. Evidence of this conceptual approach by Government can be discerned in the reports submitted to treaty monitoring bodies, including the Committee on Economic, Social and Cultural Rights. These government reports contain very little data on the situation of children and young people in relation to the various rights and their practical effect. There is a very definite sense in which children and young people's rights are compartmentalised under the Convention on the Rights of the Child. It would be very helpful for the Joint Committee to explore with government the extent to which it has considered both the application of Covenant rights as well as the implementation of the concluding observations in relation to children and young people. This would seem to be particularly important given that children and young people constitute almost one third of the population in Northern Ireland.

Provisions of the Covenant and Domestic Law

  8.  The CLC and SC believe very firmly that the rights enshrined in the Covenant should be explicitly implemented in domestic law, should be applicable to children and young people and should be justiciable. While civil and political rights, as articulated in the European Convention on Fundamental Rights and Freedoms, have been incorporated into domestic law through the Human Rights Act, economic, social and cultural rights, as provided for in the European Social Charter and the Covenant on Economic Social and Cultural Rights, have not been incorporated. This represents a gap in ensuring justiciability of these rights in domestic courts and in stipulating clearly the range of State obligations for these rights in national law. We would echo the Committee's concerns about the approach of the UK Government to economic, social and cultural rights which views them as "aspirational" principles and programmatic objectives rather than legal obligations that include undertaking immediate steps and are justiciable. The Committee has clearly stated that "there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions".[30]

  9.  The duty of governments to give effect to the Covenant in the domestic legal order is clearly stipulated in Art. 2.1 of the Covenant. "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures" (emphasis added). It is understood that other appropriate means for the purposes of article 2 (1) may include administrative, financial, educational and social measures.

  10.  In interpreting the nature of State Parties obligations under the Covenant, the Committee has affirmed that "while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect". One of this is the above obligation to "take steps" in Article 2 (1). The Committee expressly states that "Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the Covenant".[31]

  11.  Moreover, the Committee in its General Comment No 9 states that: [32]while the Committee recognises that the precise method for achieving this is a matter for each state party, it attaches to such flexibility "an obligation upon each state party to use all the means at its disposal to give effect to the rights recognised in the Covenant. The means of implementation chosen must be adequate to ensure fulfillment of the obligations under the Covenant".

  12.  The huge body of evidence available to CLC and SC irrefutably demonstrates that the programmatic aspirational approach adopted by government has patently failed to secure Covenant rights for children and young people living in Northern Ireland. A cursory glance at this data is demonstrates this failure more than adequately:

    —  Every second child in Northern Ireland is living in poverty, or at risk of poverty. [33]

    —  Infant mortality rates for Traveller children are three times higher than for the general population. [34]

    —  Physical punishment of children is still totally legal within families.

    —  The 11 plus examination perpetuates an education system whereby 33% of children go to grammar school, receiving a first rate education, whereas the remainder are effectively "written off" academically by the education system at 11 years of age.

    —  There is no minimum wage for young people under 18 years of age.

  13.  We believe that the rights enshrined in the Covenant should be explicitly implemented in domestic law thus ensuring that the rights of children and young people under the Covenant are legally enforceable.

  14.  We are conscious that under the terms of this inquiry the Committee does not intend to investigate the scope of the Bill of Rights for Northern Ireland to provide protection for socio-economic rights. However, given the Government's failure to incorporate and make justiciable the rights in the Covenant it would seem vital that they are included in the Bill of Rights for Northern Ireland. We would urge the Joint Committee to endorse the UN Committee's recommendation to this effect (para 29).

Discrimination

  15.  There are serious anomalies in terms of how the protections of the Covenant are applied to vulnerable groups of children and young people. This unequal enjoyment of social, economic and cultural rights amongst children was addressed by the Committee on the Rights of the Child[35]in its concluding observations to the UK in 2002, which pointed in particular to children with disabilities, children from poor families, Traveller children, asylum seeker and refugee children, children belonging to minority groups, children in care, detained children.

  16.  The Committee on the Rights of the Child also highlighted the discrimination against 16 to18 year olds in their enjoyment of social, economic and cultural rights. It is evident that this age group experience lesser enjoyment of a whole range of rights under the Covenant on the basis of their age alone. As documented below such rights include minimum wage and the right to accommodation.

  17.  There has been a failure as yet of Section 75 of the Northern Ireland Act to deliver on protection from discrimination for children and young people. [36]There appears to be a reluctance among some public bodies to recognise children and young people as a specific and unique category and to pro-actively use Section 75 in relation to this constituency. Another factor has been the almost total lack of baseline data imperative to assessing the impact on children and young people.

  18.  In this regard we also regret the fact that the Single Equality Act which would give effect to the Committee's recommendation on comprehensive equality legislation, has now been deferred. We trust that the direct rule Ministers will not dilute the vision that Northern Ireland Ministers had in relation to the Single Equality Act. It is imperative that this legislation covers the age ground and extends protection to goods, facilities and services. It would be very valuable if the Joint Committee could impress upon Government the need for work to proceed on the introduction of comprehensive equality legislation for Northern Ireland which covers the age ground.

Minimum Wage

  19.  On the issue of minimum wage the Committee specifically recommended that the national minimum wage be extended to people under the age of 18 years (para 33) A similar recommendation to the UK Government was made by the Committee on the Rights of the Child in its concluding observations in October 2002. (paras 55 and 56). The Committee acknowledged that while policies with regard to minimum wage reflected a government commitment to maintain young people in schools it nonetheless expressed concern that such policies may discriminate against children who have to work and urged the Committee to reconsider its policies. This is a clear example of discrimination against young people under 18 years of age in the government's application of the Covenant rights (Arts 2.2 and 7) and should be addressed without delay.

Homelessness

  20.  Sixteen to eighteen year olds experience discrimination in obtaining accommodation, a right guaranteed under Article 11 of the Covenant. There are increasing numbers of 16 and 17 year olds becoming homeless in Northern Ireland. However the rules under which housing is allocated do not enable young people under 18 years to become tenants without a guarantor. In addition organisational responsibility for provision of accommodation for this age group is constantly shunted between Social Services and the Housing Executive, often leaving the young people concerned in a bureaucratic limbo.

Housing Conditions

  21. The human right to adequate housing is expressly recognised in Article 11 of the Covenant. The lack of decent, culturally appropriate accommodation for Travellers is inextricably linked to the appalling health status of this community. In particular it can be seen as a contributory factor to the shockingly high infant mortality rates amongst Traveller children. For this reason we were pleased to note that the recommendation from the Committee on Social, Economic and Cultural Rights vis-a"-vis poor housing conditions (para 39) was framed in urgent terms and reinforced similar concerns expressed by the Committee on the Rights of the Child (paras 51 and 52). As a case in point, the fact that this recommendation had also been raised by the Committee on the Rights of the Child on previous occasions and remained unaddressed reinforces the need for Covenant rights to be explicitly included in domestic law.

Domestic Violence

  22.  There has been insufficient attention paid by the Government to the impact of domestic violence on children and young people. Under the Family Homes and Domestic Violence (NI) Order 1998 the courts are now required to look at the impact on children and young people of domestic violence. However the article within that Order which provides for separate representation for children in domestic violence cases has not been commenced.

  In addition to assessing the impact of domestic violence on children and young people this provision would give effect to one of the fundamental rights in the Convention on the Rights of the Child, the child's right to be heard in all judicial and administrative proceedings affecting them (Article 12). Coupled with this there is also a need for the provision of counselling for children who have experienced domestic violence as well as research into the trans-generational impact of domestic violence on children.

Poverty

  23.  In addressing the issue of poverty the Committee highlighted both the persistence of considerable levels of poverty in Northern Ireland and of child poverty among certain groups. According to research carried out for the Office of First and Deputy First Minister (OFMDFM) one in every two children in Northern Ireland is at the risk of living in poverty, compared to one in three in the rest of the UK. [37]While acknowledging the UK Government's commitment to eliminate child poverty and the initiatives taken, the Committee on the Rights of the Child, in its concluding observations pointed to the lack of an effective and co-ordinated poverty eradication strategy across the state party. We view the continued existence of child poverty as a fundamental barrier to children enjoying a wide range of other rights under the Covenant including adequate food, clothing and housing, health and education. In giving effect to the Committee's recommendation on poverty, particularly with respect to children and young people, the development of an effective and co-ordinated poverty eradication strategy would seem to be a pre-requisite. [38]We would also encourage the Joint Committee to question Government on whether and how they "child impact proof" and monitor a range of poverty reduction instruments in Northern Ireland such as the budget, social welfare provision and new TSN.

The Reporting Process

  24.  In relation to the reporting process for the Covenant we believe that there are important transferable lessons to be learnt from our experience of monitoring and advocacy work on the Convention on the Rights of the Child. The Committee on the Rights of the Child is generally recognised as the most progressive of all the treaty monitoring bodies in its valuing and facilitation of participation by NGOs in the reporting process. Mechanisms to facilitate NGO participation include a private pre-sessional working group for NGOs and a separate session between Committee members and young people prior to the examination. The Committee on Economic, Social and Cultural Rights has proved a strong interest in NGOs participation, holding public sessions for a dialogue with NGOs before the session. Participation of young people though has not yet been encouraged.

  25.  In its most recent report to the Committee on the Rights of the Child in September 2002, the Government delegation, led by Ms Althea Efunshile, Director of the recently established Children's and Young People's Unit at Westminster impressed the Committee with their openness, their inclusion of representatives from the devolved administrations and their expressed commitment to developing a co-ordinated response across Government. This Unit operates as a dedicated Government body to focus on Government obligations under the Convention on the Rights of the Child and enables the interests of children and young people to be located at the centre of government policy.

  26.  The Joint Committee should suggest that this model of working could be analysed by Government with a view to integrating elements of best practice into its reporting to the Committee on Economic, Social and Cultural Rights.

Preparation of the UK Report

  27.  A key concern for CLC and SC in relation to all treaty monitoring bodies is the extent of involvement of the devolved administration in Northern Ireland in the preparation for (and follow up to) the Committee's examination of the State report under the Covenant.

  28.  The recent establishment of a Children and Young People's Unit under OFMDFM, mirroring the central Children and Young People's Unit in Westminster, has clarified which department has lead responsibility in relation to the Convention on the Rights of the Child. However in relation to the Covenant we are not clear which department, if any, has lead responsibility for preparation of information for the report in this jurisdiction.

  29.  As with all UK reports to UN treaty bodies there was a serious lack of jurisdiction specific disaggregated data in the report on the Covenant. (There was also only a single paragraph on children in Northern Ireland (para 10.39) which significantly failed to mention the imminent establishment of a Commissioner for Children and Young People in Northern Ireland).

  30.  Recent discussions across the four jurisdictions between Children and Young People's Units, government departments and NGO's on the implementation of the concluding observations of the Committee on the Rights of the Child have raised the possibility of four separate reports being written, drawn together with an over-arching UK wide report. The Committee should explore the merits of such an approach to reporting on the Covenant with the Government. [39]

Dissemination

  31.  We are disappointed to inform the Joint Committee that we didn't officially receive a single copy of the Committee's concluding observations from any Government department or other statutory body. Again it is not clear which department would have responsibility for dissemination. As illustrated already the Covenant has significant implications for the protection of children and young people's rights. As the two leading children's rights NGOs in Northern Ireland therefore we would have expected to at least be sent a copy of the concluding observations. We are not aware either of any other children's and young people's organisations in Northern Ireland that were circulated with the concluding observations. This runs contrary both to the important role envisaged by the Committee for NGO's in relation to the Covenant generally and specifically in relation to Recommendation 44 on dissemination. The Committee should inquire from the Government why there has been this lack of action on dissemination and how it intends to rectify it. It may also be worth enquiring about the extent of dissemination and awareness raising (of the concluding observations) among relevant Government departments.

Implementation of the Concluding Observations

  32.  We have no concrete information at our disposal on what steps the devolved administration or more recently the direct rule Ministers have taken to implement the concluding observations since they were issued in June 2002. As a result we are not in a position to comment on how effective any such actions undertaken may have been. However, we would like to make a number of suggestions on the implementation of the concluding observations that the Joint Committee might wish to raise with the Government:

  33.  One Government department in each jurisdiction needs to be given lead responsibility for taking forward the implementation of the concluding observations. This information should be communicated to all relevant players in society including other Government departments, non-departmental public bodies, political parties, the NGO sector and the trade unions.

  34.  The lead department should have responsibility for the development of a co-ordinated, integrated plan of action, involving all relevant departments, to give effect to the concluding observations. Such a plan of action should include training, dissemination, consultation with stakeholders, data collection, monitoring mechanisms and most importantly targets and time frames.

  35.  This plan of action should include the development of a mechanism for proofing of new legislation and policy against the provisions of the Covenant (para 25)

  36.  Government should also ensure that all measures, whether legislative, policy or administrative, taken to implement the Committee's recommendations should be "child impact proofed" to ensure that the needs of children and young people are fully considered. The Children and Young People's Unit has a role to play here.

  37.  Concluding observations should be disseminated to all relevant Government departments, the Northern Ireland Office and other non-departmental public bodies in Northern Ireland as well as to all relevant organisations outside of Government.

  38.  All relevant Government officials and staff should receive training on the Covenant, the reporting process and the concluding observations.

Role of Independent Human Rights and Equality Institutions

  39.  Independent human rights and equality institutions clearly have a very important and unique statutory role to play in relation to Government's compliance, or otherwise, with all of its treaty obligations. Their principal role is to inform, promote, monitor and review compliance by Government with treaty obligations, as well as raising awareness of Government obligations under the various human rights treaties within wider society. The importance of the involvement of both the Northern Ireland Human Rights Commission and the Equality Commission in the reporting process by government to all human rights treaty monitoring bodies cannot be over emphasised. It is fully expected that an independent monitoring and scrutinizing role around action by Government on rights protections for children and young people will also be played by the Commissioner for Children and Young People once they take up post.

  40.  Given the failure of the Government to fully respect the role of the Northern Ireland Human Rights Commission in advising it in relation to consistency of all relevant legislation and policy with international human rights treaties ratified by the UK, it is imperative that Government actively seeks and acts on the advice of the Commissioner for Children and Young People in relation to its compliance with international human rights standards as they apply to children and young people.[40] Reinforcing of this point by the Joint Committee to the Government would be very timely.

Summary

  41.  The Children's Law Centre and Save the Children UK in Northern Ireland welcome the decision of the Joint Committee on Human Rights to conduct an inquiry into the concluding observations of the UN Committee on Economic, Social and Cultural Rights. We believe that such inquiries act as a very valuable mechanism for parliamentary scrutiny in respect of the UK Government's compliance with its international human rights obligations.

  42.  We see the mainstreaming of children and young people's rights across all treaties and the work of all treaty monitoring bodies as crucial to ensure to ensure the State's accountability for all human rights of children and young people.

  43.  There is a real danger that in considering its obligations under the International Covenant on Economic, Social and Cultural rights the Government will overlook children and young people as rights holders in relation to Covenant rights. The Joint Committee should consider questioning Government on the extent to which it has considered both the application of Covenant Rights as well as the implementation of the concluding observations in relation to children and young people.

  44.  We would urge the Joint Committee to recommend that the rights enshrined in the Covenant should be explicitly implemented in domestic law. Evidence in this short submission alone on the reality of children's lives in Northern Ireland clearly demonstrates that the programmatic approach adopted by Government to Covenant rights has failed to ensure these rights are enforceable and with a particular focus on children and young people.

  45.  Two of the most important ways in which the rights provisions inherent in the Covenant could be made legally enforceable for children and young people are through the inclusion of social and economic rights in a Bill of Rights and specific inclusion of non discrimination on grounds of age in a comprehensive Single Equality Act. We would suggest that the Joint Committee lends its important weight to the need for progress on both of these developments.

  46.  The new structures and mechanisms developed by the Children and Young People's Unit in Westminster around compliance with the Convention on the Rights of the Child should be examined by Government and elements of best practice incorporated into its work, not only on the Covenant but also on other treaties.

  47.  Recommendations on implementation of the concluding observations on the Covenant included in this report should be suggested to Government (paras 29 to 35).

  48.  It is imperative that Government actively seeks and acts on the advice of the Commissioner for Children and Young People in relation to its compliance with international human rights treaties as they apply to children and young people. A reinforcing of this point by the Joint Committee to Government would be extremely timely.





27   See Appendices A and B for copies of submissiones to UN Committee on the Rights of the Child. Back

28   We understand that the Joint Committee has excluded this issue from the remit of the current inquiry on the basis that it has been addressed in the earlier inquiry into the UK Government's implementation of the UN Convention on the Rights of the Child. We await with interest the Joint Committee's conclusions on the issue of physical punishment. Back

29   CRC/C/15/Add.188. Back

30   The domestic application of the Covenant: 03/12/98. E/C.12/1998/24, CESCR General comment 9, at para 10. Back

31   The nature of States parties obligations (Art 2, par 1): 14/12/90. CESCR General comment 3. Back

32   Op cited at note 5. Back

33   Save the Children Poverty Pack 2002. Back

34   North & West Belfast Health Action Zone 1999. Back

35   Op cited at Note 2. Back

36   Section 75 of the Northern Ireland Act 1998 requires public authorities, in carrying out their functions relating to Northern Ireland, to have due regard to the need to promote equality of opportunity between certain different individuals and groups including between persons of a different age. Back

37   Op cited at note 3. Back

38   Para 37 of concluding observations states "The Committee urges the State party to continue to address the problem of poverty and social exclusion as a matter of high priority, with special focus on the needs of marginalised and vulnerable groups, and particular regions, such as Northern Ireland. While formulating its anti-poverty policies and programmes, the State party is urged to give the most careful attention to the Committee's statement on poverty and the Covenant" (E/C.12/2001/10). Back

39   These seminars were jointly organised by the Children and Young People's Unit in Westminster and the Children's Rights Alliance England (CRAE). Two seminars were held, the first focusing on developing a process for monitoring our implementation of the Convention across government, with the devolved administrations, and with the NGO sector ; and the second to look at the dissemination of the Convention to officials, those working with children, and children themselves. Back

40   This issue was highlighted by the Northern Ireland Human Rights Commission in its submission to the UN Committee on Economic, Social and Cultural Rights in April 2002 ; see paragraphs 5 (h) and 5 (i). Back


 
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