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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