Bill of Rights
UNCRC and other international human rights standards
 

 





HOW THE BILL OF RIGHTS CAN BEST PROTECT AND PROMOTE THE RIGHTS OF CHILDREN AND YOUNG PEOPLE
IN NORTHERN IRELAND:

LEARNING FROM INTERNATIONAL LAW AND THE EXPERIENCE OF OTHER JURISDICTIONS


DR URSULA KILKELLY
NOVEMBER 2005


INTRODUCTION

This paper analyses how the potential of Bill of Rights for Northern Ireland can be maximised in order to best protect and promote the rights of children and young people. To this end, it presents the experience of other jurisdictions and the best practice reflected in international law with regard to the instruments and systems used for the protection of human rights and children’s rights. It considers what can be learned from these models and approaches with regard to how children’s rights can be best protected and promoted, and applies this experience to the proposed Bill of Rights for Northern Ireland.

The first section deals with the substantive content of the Bill of Rights and the second section concentrates on implementation and enforcement issues.

This research was undertaken at the request of the Children’s Sector Bill of Rights group, who work to support strong protections for children and young people in the Northern Ireland Bill of Rights. They have the support of 180 community groups and organisations across the community and political spectrum. The research was funded by a grant from the Community Foundation for Northern Ireland.



EXECUTIVE SUMMARY OF RECOMMENDATIONS

THE CONTENT OF THE BILL OF RIGHTS

1. The Bill of Rights must meet the standards set out in the Convention on the Rights of the Child.

2. The Bill of Rights should adapt CRC principles and provisions to ensure the highest standards of children’s rights are incorporated into law.

3. The enumeration of children’s rights should not be construed as a denial of children’s rights set out elsewhere.

4. CRC provisions should be tailored to special circumstances of Northern Ireland.

5. Full incorporation of children’s rights should take place at constitutional level/in the Bill of Rights.

6. The Bill of Rights should both mainstream children’s rights and contain a dedicated children’s rights provision with child specific rights.

7. The Bill of Rights should include both socio-economic and civil and political rights.

8. The Bill of Rights should make all children’s rights justiciable.

9. The Bill of Rights should place positive obligations on public authorities to prioritise the rights of children when taking decisions, including budgetary decisions.

10. The Bill of Rights should recognise rights rather than responsibilities.

11. The Bill of Rights should recognise the right of children to have their rights protected in the private sphere.

ENFORCEMENT AND THE IMPLEMENTATION OF THE BILL OF RIGHTS

12. Provision for enforcing and implementing the Bill of Rights is central to its potential to protect and promote Children’s rights.

13. A comprehensive and effective review procedure should be established to ensure that the protection and promotion of children’s rights is a continuous and comprehensive process.
14. A comprehensive and meaningful review of the extent to which the law and policy complies with the bill of rights should be undertaken before it comes into force.

15. A constitutional court should be established to hear complaints from individuals and groups regarding breaches of the Bill of Rights.

16. Children and those representing them must enjoy access to the court to have their rights vindicated. Support and advocacy programmes should be established to assist children in this regard.

17. The court should have the power to supervise the implementation of the Bill of Rights.

18. The court should have the power to strike down legislation that is inconsistent with the Bill of Rights, with individual access to the court for this purpose.

19. The Bill of Rights must contain a meaningful system for ensuring that all law and policy is compliant with the children’s rights principles and provisions in it.

20. The Bill of Rights must contain strong interpretive principles compelling those charged with interpreting its provisions to take children’s rights into account.

21. The Bill of Rights should be accompanied by a widespread campaign to educate and raise awareness among children and young people, and adults, about the rights protected.






SECTION 1: CONTENT OF THE BILL OF RIGHTS

1. THE BILL OF RIGHTS MUST MEET THE STANDARDS SET OUT IN THE CRC.

International instruments recognise the rights of children and young people in a wide variety of different ways and much can be learned from these instruments as to how to enforce and protect children’s rights effectively in Northern Ireland’s Bill of Rights. The Convention on the Rights of the Child (UNCRC, 1989) is the world’s leading instrument on the rights of children and young people. Its 42 provisions are both detailed and comprehensive. Its fundamental principles of best interests - the child’s best interests must be a primary consideration in all decisions made concerning children (Article 3) – and the child’s right to participate – children have the right to express their views and have them taken into account in decisions made about them (Article 12) - inform the modern approach to children and childhood. The near universal acceptance has led to widespread legal and social change. As such this convention is the most obvious source of guidance for those drafting the children’s rights provision in the Bill of Rights. Having ratified the CRC, the United Kingdom is both part of this international consensus and has undertaken to implement the CRC at national level.

The Bill of Rights represents an important opportunity to establish children’s rights at a constitutional level in Northern Ireland and to consolidate children’s rights standards in one binding and enforceable document. While the process of drafting the Bill of Rights is not yet complete, the Northern Ireland Human Rights Commission’s latest proposals in the public domain (Progressing the Bill of Rights, July 2004) reflect a standard of children’s rights protection which falls far short of the CRC’s minimum standards. Core rights are omitted which will significantly reduce its relevance and potential to protect and promote the rights of children and young people in Northern Ireland. Moreover, these proposals are a weakened version of the Commission’s original draft provisions. By contrast, in the South African experience, subsequent drafts of the Constitution were used to strengthen the children’s rights provision.

Given one important opportunity to incorporate children’s rights standards into domestic law, it is imperative that Bill of Rights fully reflect the standards set by the CRC. To do so, the following rights must be given explicit protection:
• The four general principles of the CRC:
o right to life, survival and development; (Art. 6)
o the right to enjoy all rights without discrimination; (Art. 2)
o the best interests principle, (Art. 3)
o the right to be heard (Art. 12)– while the right to participate in legal proceedings is contained in current proposals, the more general right of the child to express his/her views and have them given due weight in all decisions made concerning him/her is not;
• The child’s right to special protection including the right to protection from abuse, neglect and ill-treatment (current provision in Section 6 of the proposals falls short of CRC standards);
• The right to education, and to play and leisure (the latter right is absent from the current proposals);
• The right to family support and to maintain regular contact with both parents when separated from them (the reference to ‘regular’ contact is not contained in current proposals);
• The right to information and education about children’s rights (current proposals unjustifiably limit this right to ‘appropriate’ information);
• The right to an adequate standard of living, the right to health and health care (current proposals do not meet CRC standards);
• Protection from exploitation (current proposals do not recognise the child’s right to equal protection from exploitation);
• The right to liberty and fair trial for children (current proposals omit basic principles such as detention as a last resort, separation from adults in detention, the right to be treated with in an age appropriate manner and the right to privacy throughout proceedings);
• Rights of particularly vulnerable children including those without families, those with disabilities, refugee children, children of minority groups including members of the Traveller community and children in conflict with the law. Current proposals fall significantly short in these areas and include conditions such as ‘to the greatest extent possible’ not contained in the CRC.

Unless these changes are made, the Bill of Rights will have significant shortcomings in the area of children’s rights insofar as it fails to recognise well-established, fundamental children’s rights principles. In their present form, the proposals will not improve the current, inadequate legal protection of children’s rights in Northern Ireland. In fact, they may make it worse by undermining current standards and reversing some positive changes that have occurred.


2. THE BILL OF RIGHTS SHOULD ADAPT THE CRC’S PRINCIPLES AND PROVISIONS TO ENSURE THE HIGHEST STANDARDS OF CHILDREN’S RIGHTS ARE INCORPORATED INTO LAW.

Other Jurisdictions
Few of the world’s leading constitutional charters make any substantial provision for children’s rights. This is arguably due to their being drafted before the CRC (1989). Thus, the Constitutions of the United States, the Bills of Rights of New Zealand and Australia, the Basic Laws of Germany and Israel and the Canadian Charter of Fundamental Rights and Freedoms make little or no provision for children’s rights meaning that there is a distinct lack of best practice for Northern Ireland to follow in this area.

Those instruments which provide expressly for children’s rights have little in common with the exception of guaranteeing protection to the family, including recognising the rights and duties of parents to raise their children (eg the Constitutions of the Czech Republic, 1992, Belarus, 1994 and Germany, 1949). The Constitutions adopted by new Central and Eastern European (CEE) states confine their protection to the family, motherhood and/or childhood (Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Lithuania, Macedonia, Moldova, Poland, Russia, Slovenia, Montenegro, and Serbia).

Few constitutional documents thus give express or detailed protection to a wide range of children’s rights, and many instruments focus on specific issues such as the child’s rights within the family, the child’s right to education, the right of the child born outside marriage to equal protection, or the child’s right to protection from economic exploitation. Others articulate children’s rights in clearer terms by recognising the child’s right to care and assistance, and compelling public authorities to give priority to the views of the child in the course of establishing the child’s rights (eg Republic of Poland, 1997). However, some constitutional instruments make express reference to the rights of children under international law and in doing so make it clear that children enjoy rights other than those domestically protected. It is common also for constitutional documents to refer to the general right of the child to special protection (eg Poland, Czech Republic, Romania) without specifying what rights this guarantees to protect.

International Law
Looking to international law, it is clear that despite the considerable merits of the CRC, it is not perfect; its provisions were drafted as minimum standards that could apply universally and would be widely achievable and relevant. Consensus was not achieved in every area of children’s rights. There are omissions and gaps in certain areas. Some of the CRC’s standards are weak and offer little guidance to highly developed and rich countries like the United Kingdom.

Fortunately, the CRC is supplemented by more specialised international documents adopted by the United Nations and others. These include, for example, the UN Rules for the Protection of Juveniles Deprived of their Liberty, the UN Standard Minimum Rules for the Administration of Juvenile Justice and ILO Convention 138 on Eliminating the Worst Forms of Child Labour.

Moreover, the UN Committee on the Rights of the Child - the expert body which monitors its implementation - has adopted a number of General Comments which provide further detail as to how the CRC is to be interpreted, and has organised Discussion Days on its application in certain areas, including children and the media, children with disabilities, youth justice and the role of the family. Furthermore, the Committee's observations on state reports take into account each country’s specific circumstances and offer a unique analysis of how the CRC can be more fully implemented at national level. All of this material builds on the CRC standards and should be taken into account when drafting the children’s rights provisions for the Northern Ireland Bill of Rights to ensure that the highest standards are incorporated at national level.


3. THE ENUMERATION OF CHILDREN’S RIGHTS SHOULD NOT BE CONSTRUED AS A DENIAL OF CHILDREN’S RIGHTS SET OUT ELSEWHERE

Where an instrument identifies only select provisions from the CRC or details a limited number of children’s rights, this leaves open the suggestion that any rights not enumerated are not protected. In this way, the more detail a Bill of Rights contains, the clearer it is that those rights not listed are not protected. Importantly, this difficulty may be refuted by including in the document a clause, such as that contained in the Ninth Amendment of the US Constitution, which provides that ‘the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people’. Indeed, this phrase was borrowed by the South African Constitution with the added caveat that retained or pre-existing rights must be consistent with the new Bill of Rights

While these are clauses made with general reference to all rights provisions, the same lesson can be learned with respect to children’s rights. The Bill of Rights should thus provide expressly that the enumeration of children’s rights should not be construed to deny children the rights set out elsewhere.


4. CRC PROVISIONS SHOULD BE TAILORED TO THE SPECIAL CIRCUMSTANCES OF NORTHERN IRELAND.

The experience of countries like Canada and South Africa highlights the need to ensure that the Bill of Rights is specifically tailored to Northern Ireland and its specific circumstances. For example, there is little value in simply reproducing the CRC and other standards in the domestic document. Rather, in order to be effective, the Bill of Rights must reflect the circumstances of Northern Ireland society and must mould and shape the provisions of international law to meet its own needs and objectives. For example, in the light of the impact of the conflict on children and young people, consideration should be given to recognising in the Bill of Rights the right of children and young people to participate and play a constructive role in society and the future of Northern Ireland.

Adapting the CRC also involves introducing new rights and applying higher standards as appropriate. For example, while the current draft of the Bill of Rights (which proposes to set the age of criminal responsibility at 12) may be said to be consistent with the CRC, a higher age would undoubtedly achieve greater protection of the rights of children in conflict with the law. Accordingly, an age of at least 14 years should be preferred here together with the inclusion of a requirement to keep the age under review.

Experience indicates, therefore, that the drafting of the Bill of Rights should combine the well-established provisions of international law with new and higher standards designed to meet the specific needs and particular circumstances of Northern Ireland.


5. FULL INCORPORATION OF CHILDREN’S RIGHTS STANDARDS SHOULD TAKE PLACE AT CONSTITUTIONAL LEVEL/IN THE BILL OF RIGHTS.

Incorporation is the means by which an international treaty becomes part of domestic law. In common law countries like Ireland and the United Kingdom incorporation requires an act of Parliament to give an international instrument domestic effect.

Incorporation can happen in a number of ways. The strongest method of incorporation is for the text of the treaty to be fully incorporated into domestic law: in this way, the treaty becomes part of national law and a source of rights and obligations. The highest form of protection is guaranteed where entrenchment takes place at a constitutional level. An example of this is the Swedish model of incorporating the European Convention on Human Rights (ECHR) which involved inserting into the Swedish Constitution a provision (section 23) which prohibits the enactment of any laws or regulations contrary to Sweden’s obligations under the ECHR. Giving the ECHR such strong constitutional protection ensures that its provisions are supreme to all Swedish law and policy and that they have the highest form of protection in domestic law. Austria has adopted a similar commitment incorporating the ECHR at a constitutional level. The Canadian Charter of Fundamental Rights and Freedoms is entrenched within the Canadian Constitution meaning that all Charter rights and freedoms have legal effect in the domestic legal system.

A second method of incorporating international law is for the substance of the treaty to be incorporated into domestic law. According to this approach, known as indirect incorporation, the treaty itself does not become part of domestic law, but rather the values of the international instrument may help inform the interpretation of the domestic statute and bind public authorities to act in a manner consistent with the treaty’s obligations.

The Human Rights Act 1998 and to a lesser extent the (Irish) European Convention on Human Rights Act 2003, are examples of this indirect model of incorporation. Rather than incorporating the Convention itself into domestic law, the legislation – which operates at a sub-constitutional level in Ireland at least - creates a set of duties based on Convention rights. These include the duty to use the Convention to interpret legislation and to bind the acts of public authorities. The indirect model of incorporation can be said to offer less secure protection of rights than full incorporation of a treaty at a constitutional level.

Current proposals for the Bill of Rights place a duty on public authorities to carry out their functions in relation to children in accordance with the CRC. While welcome, this provision is not equivalent to incorporating the CRC insofar as it does not make the CRC legally enforceable in domestic courts. Nor will it ensure that children’s rights are incorporated fully into the domestic legal system.

The experience of other jurisdictions makes it clear that full incorporation of the CRC, and other adapted children’s rights standards at constitutional level, offers the highest form of protection to children’s rights. Provided the Bill of Rights is given constitutional status, it offers the ideal vehicle for full incorporation of children’s rights into the domestic legal system at a level higher than ordinary law and policy.


6. THE BILL OF RIGHTS SHOULD BOTH MAINSTREAM CHILDREN’S RIGHTS AND CONTAIN A DEDICATED CHILDREN’S RIGHTS PROVISION WITH CHILD SPECIFIC RIGHTS

Experience elsewhere shows that maximum children’s rights protection requires that the Bill of Rights contain a section dedicated to children’s rights, while also placing children’s rights throughout the document in a process known as mainstreaming.

International Law
International human rights law includes instruments which deal exclusively with children’s rights, and general human rights treaties which contain some children’s rights provisions. An example of the former is the CRC which is dedicated exclusively to children’s rights. Its comprehensive nature combined with its almost universal acceptance means that it represents wide consensus in this area: it thus acts as an important benchmark against which the implementation of children's rights everywhere can be measured. The profile and wide support the CRC enjoys have enabled it to raise the profile of children’s rights at national and international levels. Including in the Bill of Rights a section dedicated exclusively to the rights of children would give it similar potential to protect as well as to promote children’s rights at a national level.

The disadvantage with grouping children’s rights together in one section is that it isolates the standards in a way which may undermine the applicability to children of all the rights recognised. However, this could be eliminated by including in the Bill of Rights a provision clarifying that those rights in the children’s rights provision supplement rather than replace the rights recognised elsewhere. The relevance of general rights to children is also supported by combining a dedicated children’s rights provision with mainstreaming.

The International Covenant on Civil and Political Rights (ICCPR) provides a limited example of an instrument which both integrates children’s rights into its main provisions and contains a dedicated children’s rights provision. Article 14 ICCPR deals with the right to a fair trial, paragraph 4 of which provides that in the case of juveniles, the procedure shall be such as will take account of their age and the desirability of promoting their reintegration. It also contains provisions which deal separately with the family and children’s rights (Article 23 and 24 respectively). Although the latter provision is relatively weak (and deals only with the right to special protection, and the right to a name and nationality), the overall approach of the ICCPR is a positive example of an attempt to mainstream children's rights where appropriate, while also including a dedicated children’s rights provision dealing with rights, which are exclusive to children.

Overall, international law illustrates the importance of both recognising the importance of child-specific rights, contained in their own section, while integrating children’s rights into other relevant provisions to reinforce the relevance of general rights to children. It is recommended that a similar combined approach would maximise the potential of the Bill of Rights to protect and promote children’s rights in Northern Ireland.

Other Jurisdictions
Among the domestic instruments which grant constitutional protection to children’s rights, there is no single approach taken to where these rights are placed in the document. Some states integrate children’s rights throughout the instrument, while also setting out specific children’s rights in dedicated provisions: for example, the Constitutions of Poland (1997), Romania (1991) and Belarus (1994) include references to children’s rights in the provisions of education, health care and labour rights, while also dedicating a special provision to the rights of children. On the other hand, the South African Constitution (1996) groups children’s rights together in a separate provision - Article 28 – rather than placing them throughout the document. For example, the child’s right to protection from harm in employment is contained in Article 28, the children’s rights provision, and not in Article 23, which focuses on labour rights. Significantly, however, rather than reinforcing that children do not enjoy the rights contained in other constitutional provisions, Article 28 is understood to grant rights to children in addition to, not in place of, the rights granted to all citizens in the Constitution.

The lesson to be learned from international law and the experience of other jurisdictions, therefore, is that the potential of a domestic instrument to protect children’s rights can be maximised by combining a dedicated children’s rights provision – which makes these rights accessible to children and gives the document potential to raise the profile of children’s rights – with a mainstreaming approach – which reinforces the relevance of the general provisions to children and integrates human rights and children’s rights.


7. THE BILL OF RIGHTS SHOULD INCLUDE BOTH SOCIO-ECONOMIC AND CIVIL AND POLITICAL RIGHTS.

Rights are often divided into ‘programmatic’ and ‘justiciable’ rights.

Programmatic rights depend on the implementation of social and political policies and programmes to ensure their implementation and protection. This description is typically used to refer to rights of a socio-economic nature, such as the right to an adequate standard of living or the right to health or health care. The traditional view, therefore, is that these rights require gradual rather than immediate implementation and that guaranteeing them to everyone involves expenditure of considerable resources. As a result, the conventional view is that such rights are not justiciable or capable of precise legal determination before a court. For these reasons also, it is sometimes argued that it is inappropriate to include them in the Bill of Rights.

Justiciable rights, on the other hand, are said to be appropriate for inclusion in a constitutional document or Bill of Rights due to their precise nature and the fact that they are capable of immediate implementation. These rights, which include many civil and political rights, such as the right to a fair trial and the right to liberty, are deemed to be capable of precise legal determination and can thus be enforced through court proceedings.

Many national human rights instruments contain only civil and political rights. The US and Irish Constitutions for example focus on civil liberties, such as the freedom of expression, and due process rights such as the right to a fair trial. However, a review of more modern national human rights instruments shows new support for the inclusion of socio-economic rights. In particular, the Constitutions of nine CEE states (Belarus, Croatia, Czech Republic, Moldova, Poland, Romania, Russia, Slovakia, and Ukraine) contain very generous catalogues of socio-economic rights, while only two constitutions (Bosnia Herzegovina and Georgia) contain few socio-economic rights. In all Constitutions, the socio-economic rights that figure most prominently are the rights to social security, health care and education. There is considerable support therefore for the inclusion of socio-economic rights in the Bill of Rights for Northern Ireland.


8. THE BILL OF RIGHTS SHOULD MAKE ALL CHILDREN’S RIGHTS JUSTICIABLE.

Among domestic instruments which contain both socio-economic rights and civil and political rights are those which identify only the latter category as justiciable or capable of direct enforcement by the courts. The Irish Constitution (1937) for example, relegates many socio-economic rights to the status of guiding principles. Thus, although personal rights (Article 40), family rights (Article 41) and the right to education (Articled 42) are justiciable, others, such as the right to earn a livelihood and the right of weaker (including orphans) sections of society to support are included purely to advise the legislature. Similarly, the Constitution of Spain (1978) recognises children’s rights in Article 39 under the heading ‘Guiding Principles of Social and Economic Policy’. Thus, although the Spanish Constitution provides that ‘children shall enjoy the protection provided in international agreements which safeguard their rights’ this provision appears alongside other socio-economic rights and does not appear to be justiciable. In this sense, children who do not enjoy the rights recognised by international agreements have no access to a remedy under the Spanish Constitution.

It is arguably for this reason that many modern constitutions provide that all provisions (including socio-economic rights) can be used to measure the constitutionality of statutes. As a result, the constitutional courts of CEE states have been quite active in reviewing, and at times invalidating, statutes under the standards of socioeconomic rights. The view that these socio-economic rights are not justiciable has thus never gained recognition in these states.

The reality is that any right can be made justiciable by adopting an approach that recognises that claims based on the right can be brought before a court. There are risks attached to this process, not least that it takes power from the political process – the normal way in which decisions involving the expenditure of resources are made – and gives it to an unelected judiciary.

It is also important to remember that a judicial remedy, if successful, will usually only solve the problem for one individual with any compensation, damages and fees paid from the collective funds available. Thus, for example, if parents win a case against the state for a failure to provide special needs education for their child, any damages or fees awarded will reduce the money available for special needs education for everyone. This is clearly an argument against making such rights justiciable.
At the same time and, on balance probably more importantly, rights that are justiciable are considered to be capable of more effective enforcement; the threat of legal action can act as an effective deterrent to states contemplating a certain course of action and is often the stick needed to encourage them to act with great respect for human rights. In this regard, making rights justiciable empowers individuals and redresses the imbalance of power between individuals and the government in the area of rights protection.

It is thus vital for the effectiveness of the Bill of Rights to protect children’s rights that its provisions bind all government agencies and bodies, and are justiciable in the courts allowing remedies to be sought for breach of a child’s rights. Only this approach will ensure that the Bill of Rights offers effective legal protection to the rights of children and young people.


9. THE BILL OF RIGHTS SHOULD PLACE POSITIVE OBLIGATIONS ON PUBLIC AUTHORITIES TO PRIORITISE THE RIGHTS OF CHILDREN WHEN TAKING DECISIONS, INCLUDING BUDGETARY DECISIONS.

In contrast to other older constitutions, the South African Constitution does not relegate socio-economic rights to a weaker status. Indeed, Article 28 on children’s rights not only contains socio-economic rights for children but it has been interpreted as having established a priority in favour of children. That means that when the government is confronted with competing claims for economic resources, children may claim a priority which the judiciary would be bound to apply in concrete cases. This principle should be given express provision in the Bill of Rights for Northern Ireland to ensure maximum protection of children’s rights in government decision-making.


10. THE BILL OF RIGHTS SHOULD RECOGNISE RIGHTS NOT RESPONSIBILITIES.

Although the Constitutions of some CEE states recognise the child's duty to care for his/her parents, the implication that the enjoyment of rights is conditional upon the performance of duties has been critised. The dependence of rights upon duties is particularly dangerous in the context of children’s rights. Imposing responsibilities or duties on children will effectively operate as a pre-condition illustrating the type of behaviour expected of children before they can ‘earn’ the rights to which all adults are entitled. This belies the immaturity and vulnerability of children and undermines the very reason children’s rights are so important.

Moreover, the popular argument that ‘with rights come responsibilities’ is not borne out from an analysis of international human rights instruments. For this and other reasons, reference to responsibilities or duties should be avoided in any document seeking to establish strong and clear protection for children’s rights and thus has no place in the Bill of Rights for Northern Ireland.


11. THE BILL OF RIGHTS SHOULD RECOGNISE THE RIGHT OF CHILDREN TO HAVE THEIR RIGHTS PROTECTED IN THE PRIVATE SPHERE.

The traditional view was that international human rights instruments – and the rights that they contained - applied only to the infringements of government and not private individuals. Given that those who violate children’s rights – abusing and neglecting them - are frequently private in nature (notably their parents) this notion that children’s rights did not apply in the home posed a real threat to effective protection of children’s rights at all levels. However, this view has lost much of its credibility by virtue of the inclusive language of instruments like the CRC which, for example, refers to the responsibilities of parents to their children (and is not limited to the duties of the state/rights of the child dichotomy).

The question of whether rights can apply between private individuals (or horizontally) has also been the focus of dispute. For example, the Canadian Charter specifically provides that the Charter applies only to elements of governmental action that are implicated in litigation, thereby limiting its application to family law and children’s rights cases (as court orders per se are not government action) . However, this has been addressed to an extent in Canadian case law (Dolphin Delivery case, 1986) which established that the courts are bound by the Charter and should develop the law in all fields in a manner consistent with the Charter’s values thereby allowing some room for Charter influence on private law.

This experience highlights the need for the Northern Ireland Bill of Rights to clarify that children’s rights should be recognised and demand protection in the private, as well as the public sphere.


SECTION 2: ENFORCEMENT AND IMPLEMENTATION OF THE BILL OF RIGHTS


12. PROVISION FOR ENFORCING AND IMPLEMENTING THE BILL OF RIGHTS IS CENTRAL TO ITS POTENTIAL TO PROTECT AND PROMOTE CHILDREN’S RIGHTS.

While the content of the Bill of Rights is crucial for the protection it offers the rights of children and young people, in itself it is of little value without adequate provision for enforcing and implementing these rights. Although the enforcement, implementation and effective protection of children’s rights depends on many factors. international and national experience offers some guidance as to how this potential can be maximised in the Bill of Rights.

International Law

According to Article 4 of the CRC States Parties must take ‘all appropriate legislative, administrative and other measures for implementation’. The Committee on the Rights of the Child has provided that legal protection for children’s rights at domestic level can be provided in a number of ways. First, the rights of children and young people must be given protection at a constitutional level; second, they must be enshrined in all sectoral laws and third, steps must be taken to translate these legal provisions into reality by way of awareness raising, training, support and advocacy. This is borne out by the many examples highlighted below.

International law is made up of both binding and non-binding documents. Examples of the former are the CRC and the ECHR: these are binding on individual states because their governments have chosen to ratify them (the legal process of commitment) thereby agreeing to be bound by the standards they reflect. In contrast, non-binding instruments – such as the UN Rules for the Administration of Juvenile Justice - are recommendations only; they do not bind states as they are adopted collectively by groups of states in a forum such as the General Assembly of the United Nations and not by states individually.

Even though some international instruments (the binding ones) impose legal duties on states, the lack of an international police force or court system means that there is no central authority with responsibility for their enforcement. Instead, each treaty comes with its own enforcement mechanism, such as a reporting process in the case of the CRC, or a system of an individual complaints mechanism in the case of the ECHR.

The effectiveness of these instruments and the different purposes they serve can usefully guide the drafting of the Bill of Rights for Northern Ireland and the choice of enforcement method chosen.


13. A COMPREHENSIVE AND EFFECTIVE REVIEW PROCEDURE SHOULD BE ESTABLISHED TO ENSURE THAT THE PROTECTION AND PROMOTION OF CHILDREN’S RIGHTS IS A CONTINUOUS AND COMPREHENSIVE PROCESS.

Lessons can be learned from international experience about the importance of putting in place review procedures to ensure that the protection of children’s rights is a continuous and comprehensive process. At international level, each individual treaty adopts its own method for enforcing or implementing its standards. However, the most common method is to establish a monitoring body whose function it is to keep the implementation of the treaty concerned under review. The CRC has adopted this model. For example, the Committee on the Rights of the Child has responsibility for reviewing reports by states on measures adopted to implement children’s rights. Following this review, the Committee makes recommendations as to the steps a state needs to take to further implementation of the CRC.

This approach has its advantages and disadvantages and offers valuable lessons to those seeking to adopt such procedures at national level. On the one hand, while the reporting mechanism is slow, it is intended to be a comprehensive and self-critical review of the extent to which the CRC has been implemented in the country concerned. It promotes dialogue between state and non-governmental bodies in the area with a view to furthering implementation. In this way, it is a constructive albeit long-winded process which aims to encourage rather than force change in law and policy to ensure greater compliance with the CRC.

A further positive feature of the process is that the broad scope of the review procedure means that all areas of state practice affecting the rights of children can be opened to discussion before the Committee. Finally, their concluding observations and recommendations regarding the state’s compliance with the CRC can be put to effective use in campaigning and lobbying activities. The disadvantage, however, is that there are no sanctions for states which fail to implement the CRC, to engage in a positive manner with the reporting process or to implement the Committee’s recommendations. States who choose to do so can ignore the process and refuse to engage either with NGOs at national level or with the Committee at international level.

While not perfect, the experience of the CRC illustrates that the positive features of the reporting process far outweigh its negative aspects. Since its establishment in 1992, the Committee’s work has shown considerable potential to improve the lives and protect the rights of a great number of children and young people in the long-term. The modest success of the mechanism highlights the value in introducing at national level effective procedures for keeping the compatibility with the Bill of Rights of domestic law and policy under review. If lessons are to be learned from the experience of the CRC process, however, any national review procedure must be comprehensive, frequent and compel the co-operation of government both with its review and in the implementation of its recommendations.


14. A COMPREHENSIVE AND MEANINGFUL REVIEW OF THE EXTENT TO WHICH LAW AND POLICY COMPLIES WITH THE BILL OF RIGHTS SHOULD BE UNDERTAKEN BEFORE IT COMES INTO FORCE.

The Australian experience highlights the importance of establishing a system of public review of the compatibility of legislation with international treaties. Also, when the Canadian Charter was first adopted in 1982, the equality provision was set aside for a period of three years to enable federal and provincial governments to review their legislation to see whether statutes were in conformity. The objective, apart from achieving consistency between statute law and the Charter, was to try to avoid unnecessary and expensive court challenges to legislation.

Canadian experiences highlights that different types and levels of review are possible in this context. For example, in the province of Saskatchewan the review committee took a formal equality approach looking only for laws that were overtly discriminatory. The membership of the Committee undertaking this work was also criticised insofar as it was not composed of people who understood the complexity of women’s issues or human rights issues. The superficial nature of the review therefore meant that the proposals for reform made were simplistic and did not address the inequalities that existed between the treatment of men and women in a meaningful way. Despite these inadequacies in the review procedure, however, family law, for example, can be said to be prima facie consistent with the equality provision of the Charter: evidence of that is that the main challenges to the legislation have come from their unequal application to same sex relationships and not from the more traditional areas of family law.

It is both important and wise therefore that an audit of law and policy take place before the Bill of Rights comes into force to ensure compatibility. Moreover, the Canadian experience highlights the need to ensure that the review is undertaken by those with a clear understanding of the nature of children’s rights and is detailed and thorough in nature.


15. A CONSTITUTIONAL COURT SHOULD BE ESTABLISHED TO HEAR COMPLAINTS FROM INDIVIDUALS AND GROUPS REGARDING BREACHES OF THE BILL OF RIGHTS.

In some cases, international treaties are enforced by a court specially established for this purpose. The most effective example of this is the European Court of Human Rights, which has the power to hear complaints brought by individuals against the state under the ECHR.

The process has advantages and disadvantages: its positive features are that it offers individuals whose rights have been breached access to a legal tribunal for the determination of the dispute. In addition to having their rights vindicated, therefore, victims can obtain compensation for the loss suffered and/or have the costs of the legal action refunded to them by the Court. Such challenges may also lead to changes in law and policy aimed at preventing similar violations of rights from happening in the future. The availability of an effective remedy before the Court undoubtedly encourages states to comply with their ECHR duties: in many cases the threat of the international embarrassment of losing a case before the Court will force it to settle the dispute at national level. More broadly, it is important that hearing individual cases has allowed the European Court to develop its own human rights jurisprudence which has lead to an impressive and unique body of law setting out the detail of ECHR rights and the duties on states to vindicate them. Its case law is cited internationally and in the Supreme Courts of the United States and Canada. The negative features are, however, that the Court’s focus is on an individual complaint only, and the remedy, which may not address the wider problem, may come many years after the fact due to the Court’s backlog of cases.

In many ways, the European Court of Human Rights respects a positive example of how the right of individual petition can help bring about change at domestic level insofar as it demonstrates the importance of litigation in protecting rights and victims’ access to court to this end. Its judgments have had a broader knock-on effect in many cases resulting not only in an individual violation being remedied but in necessary changes to law and policy which ensure that repeat violations do not occur. It may also be argued that the success of one individual encourages and empowers others to follow a similar path. The experience of the Court thus offers strong support for establishing a similar court in Northern Ireland to hear complaints under the Bill of Rights.


16. CHILDREN AND THOSE REPRESENTING THEM SHOULD MUST ENJOY ACCESS TO THE COURT TO HAVE THEIR RIGHTS VINDICATED. SUPPORT AND ADVOCACY PROGRAMMES SHOULD BE ESTABLISHED TO ASSIST CHILDREN IN THIS REGARD.

Even where children’s rights enjoy strong constitutional protection, this will be set at nought where children, individually or collectively, cannot access a court to have their rights vindicated. Children’s vulnerability and immaturity means that their access to the courts can be denied in a number of ways, both deliberate and inadvertent. Supporting children to exercise their rights and have them vindicated requires putting in place and properly resourcing educational programmes, advocacy programmes and legal aid schemes. It also requires that the Bill of Rights recognise their right to have their rights vindicated directly or indirectly and that they have the right to representation and standing in this context.

The South African Constitution allows members of the public and interested parties to litigate on behalf of anyone who is unable to litigate on his or her own. Section 38 provides that ‘anyone acting in their own interest may approach the court.’Thus all that the applicant must do is show that he or she has an interest in the matter or that the matter concerns an issue that is of public interest. Two examples show the clear practical benefit to children of this provision. First, in 2000, the South African Prisoners Organisation for Human Rights brought an urgent application before the High Court in Durban on behalf of two boys aged 13 and 14, who were kept in a local prison in violation of their constitutional rights. The court ordered the immediate transfer of the two boys to a place of safety.

Also in 2000, an urgent application was brought before the Cape High Court by a Member of Parliament (Ms P. de Lille, PAC) on behalf of a group of children held at Pollsmoor Prison under unhygienic and overcrowded conditions. The application succeeded in obtaining some limited concessions from the relevant government departments in respect of health-related issues and an undertaking that deserving children would be transferred to places of safety. A number of children who required medical attention were given medical treatment and a substantial number of children were either transferred to places of safety or released into the custody of their parents or guardians.

To take another example: the US Supreme Court has not been at the forefront of the protection of children’s rights, but it has a significant record in allowing access to the court by non-governmental organisations and civil liberties groups making complaints on behalf of others. What is important here is the ability of citizens to access the court (and have the support of others in doing so) to make a constitutional challenge.

While many countries have publicly funded legal aid in civil cases, not all systems grant legal aid in constitutional cases. Even those that do may not be accessible, in practical or legal terms, to children who are particularly marginalised in this respect. Positive note should thus be taken of the approach of the Canadian government which has provided funding to a Court Challenges Programme that enables equality seeking groups, or an individual from an historically disadvantaged group, to prepare arguments relating to equality rights and federal legislation or actions. Both parties and intervenors can be funded under this programme.

Clearly, children will require substantial practical and financial support to assist them in taking legal action to have their rights vindicated under the Bill of Rights. In this regard, it is recommended that a provision mandating that support be included in the Bill of Rights for Northern Ireland.


17. THE COURTS SHOULD HAVE THE POWER TO SUPERVISE THE IMPLEMENTATION OF THE BILL OF RIGHTS

In addition to the function of hearing individual complaints, courts in some jurisdictions have a general power to safeguard or supervise the implementation of the Bill of Rights. In CEE states, for example, the Constitutions have established special constitutional courts whose function it is to safeguard supremacy of constitutional rights over statutory provisions by judicial review. This contrasts with the US model which permits ordinary courts to determine such issues in the process of deciding specific cases and controversies. Each approach has its advantages and disadvantages although what is significant is that a judicial body or bodies be entrusted with supervising the implementation of the Bill of Rights and acting as the guardian of the rights that it protects.


18. THE COURT SHOULD HAVE THE POWER TO STRIKE DOWN LEGISLATION THAT IS INCONSISTENT WITH THE BILL OF RIGHTS WITH INDIVIDUAL ACCESS TO THE COURT FOR THIS PURPOSE

At the heart of the Bill of Rights in the US Constitution is the principle that constitutional rights are cognizable and enforceable by courts and should be a basis for declaring legislation invalid in cases of inconsistency. This principle has been copied by many countries. The concept of judicial review, at the heart of many constitutional instruments in the common law world gives the courts potentially wide-ranging powers to review the compatibility with the constitution of legislation. In the Irish, Australian and US constitutional systems, for example, individuals have the right to challenge the constitutionality of legislation in the abstract, ie without having a specific interest in the outcome of the case. In some cases (eg Ireland), the courts have the power to invalidate the legislation found to be unconstitutional whereas in others (eg South Africa) the courts may order the legislature to make the necessary changes to bring the legislation into line, a practice which does not affect the validity of the legislation in the interim. Many other constitutions also provide for judicial review of administrative acts which infringe their constitutional rights. As a result of the strong role given to the Constitutional Court under CEE constitutions, for example, they have been quite active in reviewing, and at times invalidating, statutes.

Access to the courts is important in this context. In Germany, for example, where the Constitutional Court has the power to strike down legislation found to be incompatible with the Basic Law (Constitution) the court cannot itself take the initiative against any given act. Like other states, it acts, in a highly formalised procedure, on suits brought forward by members of parliament or other constitutional bodies, as well as on suits brought forward by individuals when fundamental rights are concerned and all other judicial means have been exhausted. Some have criticised this procedure insofar as it gives to unelected judges the power to strike down laws passed by elected members of Parliament. But many argue that this is a legitimate and important role for the judiciary who act free from popular and political influence.

Accordingly, the vast experience of other countries supports the proposal that the infrastructure needed to enforce the Northern Ireland Bill of Rights must include a Constitutional Court with the power to invalidate statutes and hear such complaints from individuals including cases brought on behalf of children.


19. THE BILL OF RIGHTS MUST INCLUDE A MEANINGFUL SYSTEM FOR ENSURING THAT ALL LAW AND POLICY IS COMPLIANT WITH IT.

Some Constitutions require specifically that Parliament must not pass laws (or ratify treaties) that are inconsistent with the Bill of Rights. The Netherlands Constitution, for example, provides that only those treaties that are compatible with domestic law can be passed by Parliament and are thus binding in the State (automatic incorporation).

While the New Zealand Bill of Rights affirms the rights set out in the Bill of Rights and specifically applies the Bill to those performing public functions as well as all branches of Government, it specifically excludes the courts from finding legislation to be incompatible with the Bill of Rights. On the positive side, it contains a provision requiring the Attorney General to report to Parliament where a Bill appears to be inconsistent with the Bill of Rights, and where a Bill is introduced the Attorney General has a duty to bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights.

The Human Rights Act 1998 contains a similar provision requiring all legislation passed by Parliament to be checked for its consistency with the ECHR and certified accordingly.

These experiences highlights the need to incorporate into the Northern Ireland Bill of Rights a meaningful system for ensuring that all law and policy is compliant with the children’s rights principles and provisions in the Bill of Rights.


20. THE BILL OF RIGHTS MUST CONTAIN STRONG INTERPRETIVE PRINCIPLES COMPELLING THOSE CHARGED WITH INTERPRETING ITS PROVISIONS TO TAKE CHILDREN’S RIGHTS INTO ACCOUNT
The experience of other jurisdictions highlights the importance of giving consideration to principles of judicial interpretation. The varying experience of the US Supreme Court and the European Court of Human Rights illustrates why.

The US Constitution and the ECHR contain broadly similar provisions protecting the right to liberty, security and due process. Both documents are virtually silent on children’s rights yet the US and European Courts have reached dramatically different conclusions when applying the US Constitution or ECHR to cases involving children’s rights. The case law on the child’s right to protection illustrates this point. In 1989, in the case of DeShaney v Winnebago County Department of Social Services, the US Supreme Court rejected that the due process clause of the Fourteenth Amendment could be interpreted to place a duty on a social worker to protect Joshua DeShaney from the abuse he suffered at the hands of his father. According to the Court, while the State may have been aware of the dangers Joshua faced, it played no part in their creation nor did it do anything to render him more vulnerable to them. The most that could be said of the State in this case, according to the Court, was that it stood by and did nothing.

In a similar case before the European Court of Human Rights, Z v UK in 1999, however, the Court interpreted the prohibition on inhuman treatment in article 3 of the ECHR to impose a positive obligation on the State to intervene where it knows that there is a real risk that children are being abused by their parents. In numerous other cases, the Court has interpreted the ECHR to impose a positive duty on the state to protect private individuals from harm by other private individuals. In doing so, it has relied on the importance, reflected in the CRC, of the child’s right to protection from abuse, including from his/her parents.

These two cases illustrate how different outcomes can be achieved in cases involving similar facts and a similar lack of explicit children’s rights standards.

While it is uncertain what factors are responsible for a positive outcome in the European Court and a negative one in the US Supreme Court, it is clear that one likely reason is a judicial tendency towards progressive and expansive interpretations of the text to maximise the protection which it offers and a willingness to take account of relevant international instruments in doing so. This judicial activism can be encouraged indirectly by ambitious and progressive lawyers and the provision of judicial training, or directly by making this guidance explicit: Section 39 of the South African Constitution for example, contains an interpretive principle which encourages judges to embrace opportunities for constitutional expansion. In both cases, however, judicial activism, must come with a warning of its dangers - once you leave a strict literal interpretation behind, there is no knowing how far or in which direction the text will stretch.

For this reason, detailed and express provision for children’s rights in the Bill of Rights is to be preferred to general provisions whose use in children’s case may depend on expansive judicial interpretation. Inclusion of children’s rights in the Bill of Rights also serves to copperfasten their protection and prevent any future reversal or undermining of that protection at a later date. While a Bill of Rights which contains specific, detailed provisions for children’s rights may be criticised for being inflexible, nonetheless it stands as a clear statement of the rights which that society holds important at that single place in time. Both rights and their limits are not open to interpretations that influence the essence of the right in the same way as one founded in case law; nor are such interpretations dependent on forward looking judicial activists seeking to use the constitution to promote rights, or vulnerable to backward-looking constitutional interpretation. The simple text, on the other hand, while criticised for being vague or scant on detail, is capable of rich interpretation and the reading-in of clauses and even rights (as with the unenumerated rights doctrine of the Irish Supreme Court) to ensure it always reflects modern social and legal conditions.

In short, where certainty and stability is provided by specific enumeration, flexibility and social responsiveness are provided by silent and open provisions. The jury is still out as to which produces the better outcome from a rights perspective, although it is indisputable that many such outcomes are essentially political in nature. Either way, the advantages and disadvantages of both approaches need to be borne in mind when drafting the Bill of Rights.

One lesson that can be learned from the South Africa Constitution is to include an interpretive principle to guide judges charged with interpreting the Bill of Rights. Section 39 of the Constitution provides that when interpreting the Bill of Rights, a court, tribunal or forum (ie very broad) must promote the values that underlie an open and democratic society based on dignity, freedom and equality and, perhaps more importantly, must consider international law. It may also have regard to foreign law. The second interpretive principle contained in section 39(2) is that when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Thus, all South African courts and tribunals are under a strict constitutional duty to be guided by international law when interpreting the Bill of Rights, and human rights values when interpreting other legislation or laws. This minimises the opportunity judges have to take a restrictive approach to the interpretation of the Bill of Rights and encourages, if not requires, purposive and holistic interpretations of rights.

The importance of linking interpretation of the Bill of Rights to the CRC is highlighted by the Canadian experience. In Baker v Canada (Minister of Citizenship and Information) in which the Supreme Court dealt with an immigration matter, the majority referred to the CRC and concluded that
International treaties and conventions are not part of Canadian law unless they have been implemented by statute . . . Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review … the important role of international human rights law as an aid in interpreting domestic law has also been emphasised in other common law countries …It is also a critical influence on the interpretation of the scope of rights included in the Charter.

This approach to the interpretation of the Canadian Charter is positive and highlights the potential of using the CRC as an interpretive tool. At the same time, this approach is based on case law and is thus dependent on the support of residing Supreme Court judges. Accordingly, it offers further support for the inclusion in the Bill of Rights of express interpretive principles which would encourage expansive and progressive approaches to interpretation of all its provisions in line with international law.


21. THE BILL OF RIGHTS SHOULD BE ACCOMPANIED BY A WIDESPREAD CAMPAIGN TO EDUCATE AND RAISE AWARENESS AMONG CHILDREN AND YOUNG PEOPLE AND ADULTS ABOUT THE RIGHTS PROTECTED.

The experience of other jurisdictions highlights that it is insufficient to adopt a new law or grant constitutional protection to children’s rights without raising awareness of the change in the law and providing professional training to secure its implementation. Sweden’s approach to banning physical punishment of children is a positive example here. In addition to adopting a civil statute in 1983, which recognised children’s right to be treated with respect, Sweden undertook a sweeping education campaign which, together with provision for vast support services for families, maximised the potential of the law to eliminate physical punishment. The public school system served as an important vehicle to reach children. Children were taught what parents could and could not do and how they should respond when punished physically. Parental education programmes instructed parents on alternate discipline methods. The government distributed 600,000 copies of a mailing to families with young children and to daycare facilities. The media also inundated the public with information about the new law in accessible forms. As a result, there has been measured evidence of dramatic changes in the attitude of Swedish parents towards corporal punishment. Although most Swedes opposed the law upon its enactment in 1983, they now favour it by a wide margin. A similar approach to banning physical punishment in Finland was equally successful.

These examples illustrate the importance of undertaking a comprehensive publicity campaign to raise awareness and educate both children and young people and adults about children’s rights in the Bill of Rights. A variety of innovative methods and approaches should be used to ensure that the campaign has the maximum reach possible and engages with children and young people, and adults about children’s rights in a positive way.