Contents (click on title to access full document)

Children and Young People's Sector Bill of Rights Group

Briefing Guide on the Bill of Rights for the Children and Young People's Sector

Supporters of Children

Sheri Chamberlain's speech Bill of Rights Event 20 Aug 2003

Briefing Note for Politicians 6 March 2003

Michael Leatham's speech Bill of Rights Event 20 Aug 2003

Roisin Bradley's speech Bill of Rights Event 20 Aug 2003

Thinking of the Children in Northern Ireland’s Bill of Rights

Proposals for a Bill of Rights could see Northern Ireland lead the way in these jurisdictions in the introduction of a comprehensive set of children’s rights protections that go far beyond protections offered by the Human Rights Act 1998. Following its establishment as the first Human Rights Commission in the UK, and in response to a commitment made in the Belfast (Good Friday) Agreement, reflected in section 69 (7) of the Northern Ireland Act 1998, the Northern Ireland Human Rights Commission has been consulting on a Bill of Rights for Northern Ireland over the past three years. It has now set itself mid 2004 as the target date for delivering advice on the Bill of Rights to the British Secretary of State. The potential benefits from this Bill of Rights in formation for children and young people living in Northern Ireland are huge. However, both the process of consultation and the final product should also help to elevate the debate and developments around rights protections for children and young people in Northern Ireland and more generally across the rest of the UK.

UK Wide Debate on Human Rights Protections
Already there is a serious debate underway in England about what kind of institutions and frameworks for rights protections are needed; among the options being considered are a Human Rights Commission, a merged Human Rights and Equality Commission as well as a separate Office of Children’s Commissioner. While some Westminster politicians are clearly nervous of the read-across implications of a strong and inclusive Bill of Rights for Northern Ireland, children’s rights campaigners are approaching it more positively and are seeing the potential to harmonise upwards in terms of protections established for children through a Bill of Rights for Northern Ireland.

This article commences with a look at the particularity of children’s lives in Northern Ireland and the ongoing denial of children’s rights, it then examines the proposals for a Bill of Rights for Northern Ireland from a children’s rights perspective, outlines some of the main debates surrounding the Bill of Rights and concludes by identifying the key requirements of a Bill of Rights needed to ensure maximum children’s rights protections for all children living in Northern Ireland.

Developments with devolution
With the introduction of devolution and following decades of official invisibility within the political, legislative and policy arenas, it seemed as if the pleas of the Simpson’s cartoon character, the Reverend Lovejoy’s wife, “Won’t somebody please think of the children”, had finally been heard in Northern Ireland. Despite the frustrating stop-start nature of the devolved administration, significant advances have been made in the protection of children’s rights. Key developments have included the setting up of Children and Young People’s Unit in the Office of the First and Deputy First Minister, establishment of the Office of Commissioner for Children and Young People, the imposition of an equality duty on public authorities and the current development of an overarching ten year children’s strategy.

These developments, while long overdue, have been greatly welcomed by those working with or for children in Northern Ireland. All embody the commitment made both in the Belfast (Good Friday) Agreement and the Programme for Government to prioritise and improve children’s lives. However one essential element continues to be lacking. There is no comprehensive code of children’s rights protections in Northern Ireland.

Non-incorporation on the UN Convention on the Rights of the Child
The UN Convention on the Rights of the Child, as in other parts of the UK, is not directly enforceable in Northern Ireland due to its non-incorporation into domestic law. This is despite repeated criticism by the UN Committee on the Rights of the Child of the UK government’s failure to do this. Most recently in October 2003 the UN Committee urged the UK government to “incorporate into domestic law the rights, principles and provisions of the Convention to ensure compliance of all legislation with the Convention”. While it has been encouraging to witness the Northern Irish courts draw upon the UN Convention as an interpretive tool from time to time, this still remains a long way off from it being used as the legal framework within which children’s rights issues are decided upon. Coupled with that is the fact that the methods of review and monitoring available to the UN Committee are limited in what they can achieve and they operate, as noted by Spencer “ at a political and diplomatic level but not judicially”. This particular point is not lost on children and young people in discussions with them on the relevance and value of the UN Convention to their lives.

Failure of the Human Rights Act 1998 to bring rights home for children
The Human Rights Act 1998 whilst recognised as a useful tool provides only minimal express recognition of children’s rights. The government’s project of ‘bringing rights home’, envisioned through the Human Rights Act, has certainly not delivered adequately on that objective for children and young people. Indeed it was hoped that the Human Rights Act, in addition to provide a legal remedy to those whose rights had been breached, would help to nurture a culture of understanding of rights and responsibilities, one that would bring positive benefit to children and young people included. In its recent report on the case for a Human Rights Commission the influential UK Parliamentary Committee on Human Rights commented that it had ‘not found evidence of the rapid development of awareness of a culture of respect for human rights and its implications throughout society’ If this reflection was made at a societal level the point hardly needs to be made that awareness of and respect for children’s rights must lag further behind again. Yet it would seem self-evident that without a widespread recognition of children as rights holders our fledging culture of rights will be weakened; “if children do not enjoy human rights, experience what it means to be a rights holder and see adults taking their human rights seriously, there can be no serious prospect of developing a culture of human rights for our future.”

Denial of Children’s Rights in Northern Ireland
The lack of respect for or the outright denial of children’s rights in Northern Ireland can be readily observed by just a cursory look at some of the key statistics and features of their lives. There is a higher percentage of children and young people, 26.6% living in Northern Ireland than anywhere else in the UK. While many of these children undoubtedly have happy childhoods and are enabled to develop to their maximum potential as individuals and as members of their communities, the particular circumstances of Northern Ireland have meant that very many children’s experience of growing up is marred by violence, inequality and exclusion.

Throughout the decades of conflict children and young people in Northern Ireland have suffered immeasurably. 557 children and young people under 20 years of age have been killed in the conflict. Seven children under 18 years of age have been killed by plastic bullets with hundreds of other being injured and maimed. 32% of young people aged between 14-18 years have witnessed someone being killed or seriously injured.

Northern Ireland has a very high proportion of children living in poverty. While the statistic of one in three children living in poverty in the UK is well known, research by the devolved administration’s Office of the First and Deputy First Minister indicates that every second child in Northern Ireland is living in poverty, or at risk of poverty. There is also a significant correlation between levels of poverty and the number of conflict related deaths, with areas of high deprivation also suffering the greatest impact of the conflict.

The education system remains a largely segregated one, with a mere 5% of all school children attending integrated education. It is recognised that in general, legislative and policy developments lag behind the rest of the UK; this results in the less equal treatment of children living in Northern Ireland than that of their counterparts in the rest of the UK.

Transition from conflict
The Bill of Rights emerged from the Belfast (Good Friday) Agreement and as such represents a key element in the transition from conflict within Northern Ireland. Just as in South Africa, where their new constitution was conceptualised as a constitution of transformation and was intended to convey a powerful symbolic message that a new, inclusive and shared beginning was occurring in South African society, so too in Northern Ireland should the Bill of Rights succeed in conveying a similarly powerful message. It should represent a fresh start and should embody the collective vision for the future. The needs and concerns of children from all communities must be central to creating this vision. This point was referred to by Olara Otunnu, the UN Special Rapporteur on Children in Armed Conflict following his visit to Northern Ireland; “children’s concern’s must remain priority concerns through the process of building peace and the voices of young people should be heard throughout the peace processes”. He specifically stated that children’s rights should be incorporated into the new Northern Ireland Bill of Rights.

Making a Bill of Rights for Northern Ireland
The consultation document issued by the Northern Ireland Human Rights Commission in September 2001 ‘Making a Bill of Rights for Northern Ireland’ included a separate chapter on children’s rights. This responds to the needs of children and young people for special protection measures as identified by the UN Committee on the Rights of the Child in its General Comment No 2. As with other sections of the consultation document this chapter suggested a number of clauses for inclusion and poses a series of questions around structure and content.

Incorporation of the UN Convention
It highlighted the grounds for special protections for children and young people within a Bill of Rights and suggested three approaches to providing this:

a) The direct incorporation of the provisions of the UN Convention on the Rights of the Child
b) The inclusion in the Bill of separately formulated rights reflecting those in the UN Convention but providing a higher level of protection on some issues
c) A general provision requiring state authorities to comply with the provisions of the UN Convention in addition to including a list of more specific rights (with equivalent status to Convention rights)

Interpretive Clauses
It proposed the inclusion of a number of interpretive clauses to be included in the section of the Bill dealing with interpretation, including the definition of a child, the best interests of the child being the paramount consideration in all actions concerning children and a general duty on all public bodies dealing with children to adhere to the terms of the UN Convention as well as ensuring that children can enforce any additional rights included. The proposed best interests provision combines the wording of Article 3 on the UN Convention with s3 of the Children (NI) Order 1995 ( s3 while concerned with welfare rather than best interests does state that it should be the ‘paramount consideration’ rather than ‘a primary consideration’)

Participation rights proposed reflected Article 12 of the UN Convention but also included proposals to strengthen the current statutory requirement on public authorities to consult with children.

Other clauses
In addition to these general rights the consultation document also suggested a number of other clauses dealing with the family, protection rights, children in conflict with the law, children with disabilities, the right to play, health care, children’s economic rights and awareness of rights. It is also worth noting that the provisions in other chapters would apply equally to children.

While it is beyond the scope of this article to comment in detail on proposals under each theme, a few observations are worth making. Protection rights are framed as a positive right for each child rather than an obligation on state authorities and build on Article 19 of the UN Convention by making specific reference to the widespread problem of bullying and to the need for independent monitoring.

Rights for children in conflict with the law
The substantial section on children in conflict with the law reflects the serious issues that exist around treatment of children and young people in Northern Ireland within the juvenile justice system. This section is based on Articles 37 and 40 of the UN Convention and includes proposals to raise the age of criminal responsibility to 12 years of age, although the Commission does pose the question as to whether 12 is the appropriate age or indeed whether an age should be specified or an obligation simply placed on the state to keep the age under review in line with developing international standards.

Education Rights
The proposed clauses on education are intended to supplement those in the education section by focusing on rights which are of particular importance to children, notably expulsions, protection from bullying and participation.

Key Debates
Large numbers of groups and organisations working with and for children and young people, as well as children and young people themselves , have responded in detail to the specific proposals on children’s rights contained in the consultation document. However, in addition to the task of framing specific children’s rights there are bigger, more political issues at stake in the Bill of Rights debate which will critically affect the level of protection ultimately afforded to children and young people through the Bill of Rights.

What is meant by the particular circumstances of Northern Ireland?
According to Paragraph 4 of the Good Friday Agreement the Northern Ireland Human Rights Commission was to advise on the scope for defining rights supplementary to those in the European Convention on Human Rights Bill of Rights to ‘reflect the particular circumstances of Northern Ireland’. Significantly different interpretations of what this phrase means exist, with interpretations being predicated on a deeper analysis of the causes and consequences of the conflict as well as of what is now needed for Northern Ireland to move forward as a society.

A narrow interpretation of the phrase is that the Bill of Rights should only address those issues that can be directly related to the conflict and constitutional matters. Such issues would include discrimination, equality, parity of esteem between the majority and minority communities, language, criminal justice, flags, emblems and parades. This interpretation would exclude a focus on issues affecting other communities or groups such as the Chinese community, Irish Travellers, older people and most importantly in this context, children. Children’s rights, as a category, would be entirely excluded from the Bill. While children from the two main nationalist and unionist communities would certainly enjoy the right to mutual respect for their identity and ethos, they would not, as children, be provided with any specific rights. In addition, the rights of those children who do not come from the two main communities would be completely ignored.

A broader view of what constitutes the particular circumstances of Northern Ireland would have more positive implications for children’s rights protections. A full reading of the Belfast (Good Friday) Agreement clearly points to recognition of the need to address the human rights concerns of all communities, not just the two main communities. It also specifically recognises that young people from areas affected by the conflict face particular difficulties.

Furthermore it is clear that the decades of conflict have had a much wider impact at economic and social levels, with higher levels of poverty, disadvantage and stunted policy development than anywhere else in the UK. This reality was recognised and action promised in the Northern Ireland Executive’s Programme for Government 2001 -2004 “ We recognise the inequalities in the life experiences of our citizens in terms of poverty, health, housing, educational and economic opportunity and disability and we are determined to tackle them”. This poverty and inequality has undoubtedly affected children the most.

Inclusion of socio-economic rights
There is some significant resistance among some political parties to the inclusion of effective socio-economic rights in a Bill of Rights. While approaching the issue of children’s rights protections in purely economic terms may not be particularly palatable, it is nonetheless instructive to consider the cost-benefit argument for not providing children with such fundamental rights as a basic standard of living, accommodation, health and education. Without the inclusion of such basic socio-economic rights the relevance of a Bill of Rights to children’s lives would be very limited indeed.

The non-inclusion of socio-economic rights would also have the effect of undermining children’s civil and political rights. One of the key principles enshrined in the UN Convention on the Rights of the Child is the child’s right to participate (Article 12). Yet how can a child living in poverty, a child being bullied, a child being excluded from school, a disabled child denied support services, genuinely participate in society?

It is worth noting that the UK government has already committed itself to the provision of socio-economic rights through its ratification of the UN Convention on the Rights of the Child, the UN Covenant on Social, Economic and Cultural Rights, amongst other treaties. The Bill of Rights would simply, in the words of the government, bring these rights home to children.

Special rights protections for children in Northern Ireland
Des Browne, MP, Minister of State for Northern Ireland is on record as asking why children from Newcastle Co. Down need any rights different to children from Newcastle, England. The answer is simple. Nobody can deny, as illustrated earlier that children’s experience in Northern Ireland has been and continues to be different to children living in others parts of the UK. While children everywhere are entitled to have their rights secured, children living in a society emerging from a long conflict need extra protection and special priority to be accorded to their rights.

Inclusive process essential
With all of these and more debates ongoing the Bill of Rights still has a longer gestation before it sees the light of day. Civic society in all its various strands has been engaged in these debates with the Human Rights Commission over the past few years. More recently the body politic has begun to apply itself to the question of a Bill of Rights for Northern Ireland. This is both positive and encouraging, as in the words of the former High Commissioner for Human Rights Mary Robison, in relation to the Bill of Rights for Northern Ireland “the process of debate is almost as important as the eventual product”.

Key requirements
Further down the line the ultimate test of the ‘product’ from a children’s rights perspective will be whether it effectively delivers children’s rights protections for all children living in Northern Ireland. For this to happen there are a number of key requirements:
• the incorporation of the UN Convention on the Rights of the Child, plus inclusion of separately formulated rights, providing a higher level of protection on some issues
• the inclusion of a separate chapter or section on children’s rights
• the inclusion of basic socio-economic rights
• the provision of strong, effective and accessible enforcement mechanisms
• the provision of awareness raising of children’s rights among children and young people, on the education and training curricula and for all those working with, for or on behalf of children.



Conclusions
A Bill of Rights for Northern Ireland will ultimately be legislated for by Westminster politicians rather than by the devolved government in Northern Ireland. This makes it all the more important that groups and organisations concerned with children’s rights across the four jurisdictions closely monitor the debate and lend their support to the need for maximum children’s rights protections in a Bill of Rights for Northern Ireland. A Bill of Rights for Northern Ireland should succeed in not only improving the lives of children and young people from Northern Ireland but should also bolster arguments for similar protections for all children and young people across the UK.

For more information contact Sara Boyce, Children’s Human Rights Advisor, Children’s Law Centre/Save the Children, Philip House, 123-137 York Street, Belfast BT 15 1AB. Tel 028 90 245704 e-mail saraboyce@childrenslawcentre.org


This article first appeared in Childright in May 2003 ( issue no 196)