Memorandum submitted by 11 Million
1. Who are we?
11 MILLION is a national organisation led
by the Children's Commissioner for England, Professor Sir Al Aynsley-Green.
The Children's Commissioner is a position created by the Children
Act 2004.
2. Summary
11 MILLION believes that provisions in
the forthcoming Equality Bill should be extended beyond the current
proposals and ban the unjustifiable discrimination against under
18s, solely on the basis of their age, in the provision of goods,
facilities and services. The proposed public sector duty to promote
age equality should also apply to under 18s, which would mandate
public sector organisations to promote age equality and good relations,
which may help redress the current negative view of children in
society.
Children of different ages require different
treatment according to their varying needs and stages of development.
This age-appropriate treatment is entirely correct and justifiable
and it is not our intention in calling for this legislation to
undermine the provision of age appropriate services. Protection
from unjustifiable age discrimination would ensure that children
are protected from discrimination which is not evidence based,
cannot be shown to be reasonable or justified and has a negative
impact on their lives.
3. Introduction
3.1 The Minister for Equality, the Rt Hon
Harriet Harman QC MP, has promised of the forthcoming Equality
Bill: "The agenda is for everyone because fairness is the
foundation for individual rights".[127]
It is however Government's intention to exclude children and young
people below the age of 18 from some of the key age equality
provisions of the proposed Bill on grounds that the notion of
unjustified age discrimination rarely applies to under 18s and,
even in cases of less favourable treatment, that anti-discrimination
legislation would not be the most effective solution.[128]
3.2 This submission outlines 11 MILLION's
preliminary analysis of the Equality Bill, which we intend to
supplement as we build our evidence base of children's views and
experiences over the coming months.
4. Government proposals
4.1 In the June 2007 consultation paper
"A Framework for Fairness: Proposals for a Single Equality
Bill for Great Britain", the Government outlined measures
for tackling age discrimination in relation to goods, facilities
and services, including a new age anti-discrimination law. The
Government was clear however that these proposals would not extend
to children and young people under 18 years of age, following
the rationale that:
"it is almost always appropriate to treat
children of different ages in ways which meet their particular
needs and stage of development";[129]
and that
"The basic principle of age discrimination
legislation, that people should not be treated differently on
the basis of their age, is therefore rarely appropriate to the
treatment of children."[130]
4.2 These sentiments were reiterated in
the recent White Paper which confirmed that the Government's plans
to ban age discrimination in relation to the provision of goods,
facilities and services would not apply to children under the
age of 18.
4.3 The Government has also proposed a new,
single public equality duty covering race, gender, disability,
sexual orientation, religion and age to replace the three existing
public duties (race, gender and disability). Consistent with the
plans to exclude children from the scope of the age anti-discrimination
law, the Government has made clear its intention that "children's
services" will not be covered by the age strand of the proposed
single equality duty. Given the structure of the current public
equality duties—in particular, the fact that their functioning
depends on the pre-existence of specific anti-discrimination legislation—it
appears that the intention to exclude children's services from
the age strand of the single duty is directly related to the exclusion
of under 18s from the age anti-discrimination proposal.
5. 11 MILLION's assessment
5.1 11 MILLION wholeheartedly agrees
with the Government's view that children of different ages will
require different treatment according to their varying needs and
stages of development. However, we believe that unjustifiable,
less favourable age discrimination does arise, and age discrimination
legislation for under 18s is necessary.
5.2 To extract from the line quoted above,
Government contends that the "basic principle" of age
discrimination legislation is "that people should not be
treated differently on the basis of their age".[131]
In 11 MILLION's view, this misrepresents the nature and purpose
of age discrimination legislation: rather than preventing different
treatment on the basis of age, the idea of age discrimination
law, as with any other type of anti-discrimination law, is to
prevent behaviour that may result in less favourable treatment
which cannot be justified objectively.
5.3 "Different" treatment—in
this context, age-appropriate treatment—is not only something
that 11 MILLION welcomes but something that we have actively
pursued, especially in relation to children in the youth justice
system, asylum seeking children and children with mental health
needs. Disability anti-discrimination legislation, for example,
does not deny the different needs and capabilities of people with
disabilities, rather it operates to ensure that disabled individuals
do not receive less favourable treatment on account of their disability.
A parallel argument may be made in respect of children: age discrimination
legislation would not deny different treatment for children based
on their varying needs and capabilities, but would outlaw unjustified
discrimination or less favourable treatment based on age. Equality
is not achieved by treating everyone the same but by recognising
difference and responding to individuals' different needs.[132]
5.4 This is an argument which the Government
accepts in relation to older people, to whom the proposed age
discrimination prohibitions will apply. In its recent White Paper,
the Government stated:
"It [the proposed age discrimination prohibition]
will not affect the differential provision of products of services
for older people where this is justified—for example, free
bus passes….. We want to make sure we only outlaw unjustified
discrimination without unintentionally stopping things that are
beneficial to particular age groups."[133]
5.5 Failing to extend this logic to children
and young people not only has the consequence of excluding under
18s from the proposed discrimination law, but also denies the
same population the benefits of a public duty to promote age equality
that would otherwise apply. The Government Equalities Office has
emphasised the high value of the public duty both in affecting
cultural change and in ensuring that public services are designed
and delivered with regard to the need to promote equality and
prevent discrimination.[134]
The way in which the public duty is tied to anti-discrimination
legislation means that children will lose out twice because of
the Government view that age discrimination is not appropriate
in relation to children.
5.6 11 MILLION believes that tailoring
services to meet children's different needs and capabilities is
fully compatible with the proposed law prohibiting age discrimination.
6. The case for extending Age Equality and
Anti-Discrimination proposals to children
6.1 We are currently building up a body
of evidence to demonstrate that age anti-discrimination legislation
would be not only logical but necessary for promoting and protecting
children's rights. Legislation would provide children affected
by age discrimination with an effective form of redress, as well
as playing the crucial proactive role of helping to improve children's
outcomes by encouraging greater societal awareness of age equality
issues in relation to children and young people.
7. Examples of age discrimination against
children in practice
7.1 Unjustified discrimination might arise
when other interests are deliberately and illegitimately put before
children's interests (eg cost saving; bureaucratic concerns, power
interests) or may arise unintentionally owing to lack of consideration.
Unjustified discrimination might also occur more subtly in situations
which, on the face of it, appear to be justified, but are only
so because societal norms lead us to believe that such treatment
is "fair". Given the slow evolution of age discrimination
as a concept,[135]
it is not yet possible to provide a complete list of practical
examples where children and young people face less favourable
treatment without justification. The following however provides
a flavour of the types of ways in which children and young people
may experience unjustified age discriminated in England today:
— Young people aged 14-18 who are
in need of mental health services often receive inferior or less
appropriate treatment than younger children;[136]
— 16 and 17 years olds receive
lower levels of certain benefits than adults despite paying the
same in social security contributions;
— mosquito devices installed in shops and
other public venues operate to deter children, young people and
parents with young babies from accessing certain local amenities
where the devices are in operation;[137]
— shopkeepers and businesses regularly
place restrictions on the number of children in stores at any
one time while no such restrictions apply to adults;
— 16 and 17 year olds in part-time
and full-time employment do not benefit from the minimum wage
which is guaranteed to adult members of the working population;
— services that purport to be universal
are often not accessible to children because of their design or
because of assumptions made on grounds of age by operating staff
(eg police complaints procedures).[138]
8. Implications for children's outcomes
8.1 Treating children less favourably, either
compared to other children close in age or to adults, is likely
to result in poorer outcomes for the affected children and young
people. Research undertaken by 11 MILLION on mental health
services has shown, for example, that older teenage children (particularly
16 and 17 year olds) are often cared for in adult psychiatric
wards and, on occasion, detained in police cells or hospital accident
and emergency facilities because of the lack of age-appropriate
care provision.[139]
8.2 11 MILLION's "Buzz Off"
campaign is a further example of our work which has highlighted
the detrimental effects of age-based discrimination on children's
rights and outcomes. We have received high volumes of correspondence
from children and young people explaining the exclusionary and
discriminatory effects of the mosquito on their participation
in community life and expressing concern about the effect of the
device in creating a negative image of children in society generally.[140]
8.3 Other issues such as the lower minimum
wage, lower levels of benefit and less favourable treatment of
16 and 17 year olds in the criminal justice system require
further research to determine their effects on children's outcomes
and their continued justification in light of updated evidence.
Such analysis is clearly needed given the large numbers of children
who allege being discriminated against on the basis of their age.
In a recent survey of 3,900 children, the Children's Rights
Alliance for England found that 43 per cent of children reported
that they had experienced age discrimination and that age was
the single largest ground on which children felt discriminated
against.[141]
9. Implications for children's rights of excluding
under-18s from Age Equality and Anti-Discrimination provisions
9.1 11 MILLION is concerned that excluding
under-18s from the proposed age anti-discrimination legislation
and consequent age strand of the public equality duty presents
a potential violation of Article 14 of the European Convention
on Human Rights, as incorporated by the Human Rights Act 1998.[142]
Article 14 prohibits discrimination "on any ground"
in regard to the enjoyment of the rights and freedoms set forth
in the Convention. Denying children the benefits of age anti-discrimination
legislation and of public duties to promote age equality which
apply to all other age groups of the population, could infringe
children's rights to enjoy, for example, their private and family
life (Article 8) or their right to education (Protocol 1, Article
2) free from discrimination.
Government may of course argue that a potential
Article 14 breach (on grounds of age discrimination) could
be justified if it were to satisfy the tests of necessity and
proportionality. Until this case is made however, the question
of compatibility with the Human Rights Act remains outstanding.
9.2 Article 2.1 of the UN Convention
on the Rights of the Child (UNCRC) requires State parties to ensure
for every child full enjoyment of the Convention rights "without
discrimination of any kind". Given the full range of civil,
political, economic and social rights contained in the Convention,
there is significant risk that excluding children from the age
equality and non-discrimination proposals in the forthcoming Equality
Bill will contravene the UK's international obligations or, at
the very least, present a missed opportunity to strengthen children's
rights.
9.3 The UN Committee on the Rights of the
Child, following its recent examination of the UK Government's
performance against the Convention, highlighted the lack of tolerance
and respect shown to children and young people in British society
and encouraged the Government to take measures to mainstream age
equality:
"The Committee welcomes the State party's
plans to consolidate and strengthen equality legislation, with
clear opportunities to mainstream children's right to non discrimination
into the UK anti-discrimination law (forthcoming Equality Bill)….The
Committee is also concerned at the general climate of intolerance
and negative public attitudes towards children, especially adolescents,
which appears to exist in the State party, including in the media,
and may be often the underlying cause of further infringements
of their rights."[143]
9.4 The Committee therefore recommended,
amongst other things, that the State party should ensure full
protection against discrimination on any grounds, including by:
"a) taking urgent measures to address
the intolerance and inappropriate characterization of children,
c) taking all necessary measures to ensure
that cases of discrimination against children in all sectors of
society are addressed effectively, including with disciplinary,
administrative or—if necessary—penal sanctions."[144]
10. Conclusions
10.1 The concept of age equality is at a
less advanced stage of evolution than other equality grounds such
as gender, race or disability. While views on the extent of children's
capacities and capabilities have evolved significantly over time
and continue to do so (eg the landmark "Gillick" judgment
in 1985[145]),
society is still deeply ambivalent in its views towards children
and young people.
10.2 Evidence shows that children and young
people suffer unjustified discrimination on the basis of their
age.
10.3 11 MILLION believes that there
are strong reasons, based on considerations of children's rights,
interests and outcomes, for including under 18s in the scope of
the proposed age anti-discrimination legislation and in the age
strand of the single equality duty in the forthcoming Equality
Bill.
10.4 The case for excluding children from
the proposed age anti-discrimination legislation and the age strand
of the single equality duty has not been satisfactorily made by
Government and exclusion risks potential violation of both domestic
and international human rights standards.
11. Recommendation
11.1 11 MILLION recommends that the
Government extend the proposed prohibition on unjustifiable age
discrimination in relation to goods, facilities and services to
children and young people below the age of 18. This would have
the double benefit of significantly strengthening anti-discrimination
measures in respect of children and would ensure that children's
services are captured by the age strand of the proposed single
equality duty.
127 Government Equalities Office (2008), pg 6, Framework
for a Fairer Future-The Equality Bill, The Stationery Office,
London, June 2008. Back
128
Ibid, pgs.35 and 48. Back
129
Department for Communities and Local Government (2007), Discrimination
Law Review-A Framework for Fairness: Proposals for a Single Equality
Bill for Great Britain, para.5.63, The Stationery Office, London,
June 2007. Back
130
Ibid, para.9.26. Back
131
Ibid, para.9.26. Back
132
Cabinet Office (2007), Fairness and Freedom-The Final Report of
the Equalities Review, The Stationery Office, London. Back
133
Government Equalities Office (2008), pg 16-17, Framework for
a Fairer Future-The Equality Bill, The Stationery Office,
London, June 2008. Back
134
Ibid. Back
135
See for example O'Cinneide, C. (2005) Age Discrimination and European
Law, Brussels, European Commission; and DeSchutter, O. (2005)
The Prohibition of Discrimination under European Human Rights
Law, Brussels, European Commission. Back
136
The Children's Commissioner for England (2007) Pushed into the
Shadows: Young People's Experiences of Adult Mental Health Facilities,
London, Children's Commissioner; and 11 MILLION (2008) Out
of the Shadows, London, 11 MILLION. Back
137
See evidence from 11 MILLION's "Buzz Off" campaign
at: http://www.11million.org.uk/adult/buzz_off_campaign/ Back
138
Hamilton, C. and Sherwood, S. (2007) Complaints from Children:
The New Police Complaints Procedure, Essex, The Children's Legal
Centre. Back
139
See n.10 above. Back
140
See n.11 above. Back
141
Willow, C., Franklin, A. and Shaw, C. (2007) Meeting the obligations
of the Convention on the Rights of the Child in England: Children
and young people's messages to Government, London, DCSF. Back
142
Human Rights Act, 1998, s.1. Back
143
UN Committee on the Rights of the Child (2008), para.24; Concluding
Observations-United Kingdom of Great Britain and Northern Ireland,
Geneva, United Nations. Back
144
Ibid, para.25. Back
145
Gillick v West Norfolk and Wisbech Area Health Authority [1985]
3 All ER 402 (HL). Back
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