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Response
to the NFER at QUB’s Consultation on Mainstreaming Equality
in Schools in Northern Ireland
Children’s
Law Centre
February 2006
Contents
Introduction
3
General Comments
3
International Standards
5
The Current Context
7
Questions Posed in the Consultation Document
9
Conclusion
11
Introduction
The Children’s Law Centre is an independent charitable
organisation established in September 1997 which works towards
a society where all children can participate, are valued,
their rights respected and guaranteed without discrimination
and every child can achieve their full potential.
We offer training and research on children’s rights,
we make submissions on law, policy and practice affecting
children and young people and we run an advice/information/representation
service. We have a dedicated free phone advice line for children
and young people called CHALKY and a youth advisory group
called Youth@clc. Education issues comprise 25.2% (1,627)
of the total number of issues raised through the CHALKY helpline
since June 2000.
Our organisation is founded on the principles enshrined in
The United Nations Convention on the Rights of the Child (UNCRC),
in particular:
• Children shall not be discriminated against and shall
have equal access to protection.
• All decisions taken which affect children’s
lives should be taken in the child’s best interests.
• Children have the right to have their voices heard
in all matters concerning them.
From its perspective as an organisation, which works with
and on behalf of children, both directly and indirectly, the
Children's Law Centre is grateful for the opportunity to make
this submission to the NFER and to offer further assistance
in the development on ways to Mainstream Equality in our Schools
in Northern Ireland.
General Comments
We very much welcome the fact that NFER is undertaking this
very important consultation exercise on ways to mainstream
Equality in Schools in Northern Ireland as per the statutory
duty conferred on designated public bodies under section 75
of the Northern Ireland Act 1998. We would be grateful if
you would provide us with details of how you have or intend
to consult directly with children and young people as the
group who will be impacted upon most by the mainstreaming
of equality in schools in Northern Ireland. Such consultation
is essential not only in ensuring compliance with section
75, but also in ensuring compliance with your obligations
under Article 12 of the United Nations Convention on the Rights
of the Child (UNCRC). The UNCRC Committee, in its concluding
observations in 2002 expressed concern about the inconsistent
application of Article 12, with particular reference to education,
stating that,
“...the Committee is concerned that the obligations
of article 12 have not been consistently incorporated in legislation,
for example... in education and in protection throughout the
State party... The Committee is also concerned that in education,
schoolchildren are not systematically consulted in matters
that affect them. The Committee notes that groups of children
in the State party expressed their feelings that their views
are duly taken into consideration.” (Para 29, CRC/C/15/Add.188)
We also welcome the consultation events which are due to take
place after the formal consultation period has ended and we
note that consultation seminars focus on children and young
people as one of the areas of particular interest and expertise.
We wish to impress on NFER both the obligation to and the
fundamental importance of direct consultation with children
and young people at all stages of the consultation process.
The Children’s Law Centre believes that the implementation
of Section 75 of the Northern Ireland Act 1998 is perhaps
the most significant development in the promotion of equality
of opportunity in recent years. The Children’s Law Centre
is firmly committed to the effective operation of the section
75 equality duty and has worked towards this since the implementation
of the Northern Ireland Act 1998. The importance of section
75 cannot be over emphasised and it is vital that we acknowledge
the high constitutional importance of section 75 in the context
of the new settlement in Northern Ireland from the outset.
Children and young people are the most vulnerable group in
our society and are covered under the age category in section
75. We must emphasise the fact that children and young people
are not a homogenous group and have multiple identities which
should afford them extra protection under section 75.
The promotion of equality of opportunity under section 75
is a statutory duty and the language of an enforceable legal
duty has been used from its inception. Moreover it is a duty
to have “due” regard, that is to say the regard
that is owing to such a constitutional and fundamental principle.
The Equality duty is a single obligation, across all the stated
grounds thereby emphasising its fundamental nature not a series
of obligations having differential weight for instance in
relation to religion and political opinion and in relation
to matters such as age and dependency. The equality duty or
statutory obligation was seen by the signatories to the Good
Friday Agreement as a particular priority and was intended
by the signatories to apply to all the functions of such public
authorities.
Children and young people do not have a shared life experience
and there are various groups of children and young people
who experience difficulties in access to education and educational
attainment. It is vital that children and young people have
an equal right to equality of opportunity in all aspects of
their lives. One of the major deficiencies in the application
of section 75 is the fact that schools have not become designated
public bodies. At present, the majority of children and young
people in Northern Ireland spend a large part of their day
within the mainstream school system. Education is a major
part of a child or young person’s life, yet there is
no obligation on schools to ensure that gaining an education
is an experience where equality of opportunity is delivered
by schools. This is a ludicrous position when one considers
that all the further education colleges and Universities in
Northern Ireland are designated public bodies. It would appear
that the delivery of education is not an obstacle to the need
to have due regard to the promotion of opportunity under section
75, so one must only conclude that the age of the children
and young people concerned precludes schools from being designated
under section 75. Resultantly, vulnerable children and young
people are afforded no protection in school under section
75, where as their older student peers are. The intention
of section 75 is to mainstream equality,
“It requires proactive measures to be taken to secure
equality of opportunity between the categories identified
under Section 75” (Page 81, A guide to the implementation
of the statutory duties on public authorities arising from
Section 75 of the Northern Ireland Act 1998 - Revised February
2005)
The current position where schools fall outside of the scope
of section 75 is a serious flaw in ensuring its effective
operation for members of all of the nine categories. In keeping
with the spirit and intention of the legislation, which aims
to afford equality of opportunity to members of all of the
nine groups, it is fundamental that schools are designated
to ensure that children and young people in the mainstream
education system are afforded equality of opportunity in line
with that enjoyed by older students, students of the same
age at further education colleges and those availing of all
other services in Northern Ireland.
International Standards
Education has long been recognised as a fundamental human
right. A number of international instruments exist which guarantee
every child the right to an effective education, free from
any form of discrimination. The most important of these is
the United Nations Convention on the Rights of the Child (UNCRC).
The Convention is a set of non-negotiable and legally binding
minimum standards and obligations in respect of all aspects
of children’s lives which the Government has ratified.
Under Article 2 of the UNCRC, each Member State undertakes
to ensure Convention rights to every child without discrimination
on any ground including gender, social origin, property, disability,
birth or other status. All children are thus entitled to equal
access to education regardless of their social origin or status,
their geographical location, their membership of a linguistic,
ethnic or other minority, their detention or their disability.
Moreover, under Article 2 (2), States also undertake, to take
all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis
of their status, activities, or the expressed opinions or
beliefs of the child’s parents, guardians or family
members. Similarly, Article 1 of the United Nations Educational,
Scientific and Cultural Organization (UNESCO) Convention Against
Discrimination in Education prohibits,
“...any distinction, exclusion, limitation or preference
which, being based on race, colour, sex, language, religion,
political or other opinion, national or social origin, economic
condition or birth, has the purpose or effect of nullifying
or impairing equality of treatment in education”
In relation to educational attainment in schools, it is very
apparent that huge inequalities exist in our schools. Some
examples include the significant differences in educational
attainment after the 11-Plus between grammar schools and non-grammar
schools. This “grammar school effect” results
in pupils who attend grammar schools gaining on average an
additional 16 points at GCSE stage. (Gallagher and Smith,
“The Effects of the Selective System of Secondary Education
in Northern Ireland” Department of Education, 2000)
Whilst there are various factors which contribute to the differences
in results between sectors, this would appear to be disproportionate.
The result is an apparent breach of the UNESCO Convention
against Discrimination in Education, which includes within
its definition of discrimination the subjection of a person
or group to education of an inferior standard. There are also
concerns about the lower level of educational attainment of
particular groups of children, including children with a disability,
with research carried out by Kilpatrick & Quinn in 2000
noting the predominance of children with special educational
needs in the secondary sector and a lack of special educational
needs policies in some schools. Other children from the Traveller
community, the Chinese community, the Indian community and
other indigenous minority groups in Northern Ireland, may
also be discriminated against on the basis of their language
and national or social origin. This is of particular concern
in light of the Common Funding Formula whereby funding for
English as an Additional Language (EAL) provision in schools
is still allocated, but is no longer being ringfenced. As
a result, many children may not receive specialist provision.
Articles 28 paragraph 1 of the UNCRC provides that every State
party recognises the right of the child to education. With
a view to achieving this right progressively and on the basis
of equality of opportunity, the State undertakes to adopt
a number of measures.
“(a) Make primary education compulsory and available
free to all;
(b) Encourage the development of different forms of secondary
education, including general and vocational education, make
them available and accessible to every child, and take appropriate
measures such as the introduction of free education and offering
financial assistance in case of need;
(c) Make higher education accessible to all on the basis of
capacity by every appropriate means;
(d) Make educational and vocational information and guidance
available and accessible to all children;
(e) Take measures to encourage regular attendance at schools
and the reduction of drop-out rates.”
The Committee on the Rights of the Child has recognised that
the UNCRC is comprised of general principles with broad-ranging
implications. In this regard, it has encouraged States to
include in their educational policies and legislation a clear
commitment to using the Convention’s principles on the
right to education to inform educational policies. The Government
should ensure that the UNCRC forms the basis for all educational
policies in Northern Ireland. The Committee on the Rights
of the Child, which monitors the implementation of the Convention,
has reiterated the relevance and importance of these principles
in vindicating the child’s right to education and has
attached particular importance to the right of the child to
be heard and to play an active part in decisions regarding
his or her education. (Article 12, UNCRC)
Article 29 of the UNCRC details the aims which education should
fulfil and identifies as the primary aim of education the
holistic fulfilment of a child’s development to their
fullest potential. According to Article 29 paragraph 1, State
parties agree that the education of the child shall be directed
to:
“(a) the development of the child’s personality,
talents and mental and physical abilities to their fullest
potential;
(b) the development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter
of the United Nations;
(c) the development of respect for the child’s parents,
his or her own cultural identity, languages and values, for
the national values of the country in which the child is living,
the country from which he or she may originate and for civilisations
different from his or her own;
(d) the preparation of the child for responsible life in a
free society, in the spirit of understanding, peace, tolerance,
equality of sexes, and friendship among all peoples, ethnic,
national and religious groups and persons of indigenous origin;
(e) the development of respect for the natural environment.”
According to the UNCRC Committee’s General Comment on
Article 29 of the Convention – a statement of its meaning
and objectives - education must be child-centred, child-friendly
and empowering. (General Comment 1 CRC/GC/2001/1) The goal
is to strengthen the child’s capacity to enjoy the full
range of human rights, to promote a culture which is infused
by appropriate human rights values and to empower the child
through developing his or her skills, learning and other capacities,
human dignity, self-esteem and self-confidence. In this context,
‘education’ goes far beyond formal schooling to
embrace the broad range of life experiences and learning processes
which enable children, whether individually or collectively,
to develop their personalities, talents and abilities and
to live a full and satisfying life within society.
The UNCRC Committee also stated that were a State to deny
a child access to educational opportunities, this might present
a failure to comply with the right to education as contained
within Article 28 of the Convention. The Committee also went
further, stating that any failure to comply with the principle
aims of education under Article 29 could potentially have
a similar effect in denying a child’s right to education.
For example, discriminatory practices, including discrimination
against children with disabilities, are in direct contradiction
of the requirements in Article 29(1)(a) that education be
directed to, “the development of the child’s personality,
talents and mental and physical abilities to their fullest
potential”.
Article 2 of the First Protocol to the European Convention
on Human Rights as incorporated by the Human Rights Act 1998
also provides that no one shall be denied the right to education.
This has been interpreted by the European Court of Human Rights
to mean that every child is entitled to access effective education.
Moreover, taken together with Article 14 ECHR - the non-discrimination
principle - the right to access available educational facilities
must be secured to all children without discrimination.
The Current Context
The recent, “Children’s Rights in Northern Ireland”
research (Northern Ireland Commissioner for Children and Young
People, 2004) highlights a number of problems in relation
to the provision of education in schools in Northern Ireland
(Chapter 4). One of the common concerns highlighted in the
research, in relation to school buildings and facilities,
provision of pre-school education places, primary schools,
school transport, special educational needs and English as
an additional language provision, the education of Traveller
children and access to counselling services, is the inadequacy
of funding. These problems will be further exacerbated as
a result of the proposed funding cuts in education of over
£30 million which will place further limitations on
a service already in crisis. While we recognise that the designation
of schools will place additional pressure on dwindling funding
and resources, there can be no hierarchy of equality of opportunity
in terms of the nine groups detailed in the legislation. Resource
constraints can never be a barrier to the protection afforded
to children and young people under section 75. (See page 9)
In June 2005, the Department of Education carried out an extremely
worrying consultation exercise on its revised policy screening
and timetable which proposed to screen out 19 of its previously
screened in policies for equality impact assessment. Among
those polices which the Department proposed to screen out
were the Promotion of Child Protection Policies and Procedures
in Schools, Maximising Learning Opportunities for Children
with Learning Difficulties/ Special Educational Needs, English
as an Additional Language and the open-enrolment policy for
primary schools. We responded to this consultation exercise,
highlighting the potential for adverse impact in all of these
policies and calling for the Department to screen these policies
in for equality impact assessment. The outcome of this consultation
exercise is still not yet known as the Department has not
yet issued its screening report, however, if the Department
makes its decisions in line with the consultation exercise
there will be serious consequences in relation to equal access
to education and equality of opportunity in the classroom.
Also in June 2005, the Department of Education consulted on
its New Admissions Arrangements policy for post-primary pupils.
The Department’s initial conclusion on the post-primary
school policy was that it should be included in the timetable
for an equality impact assessment after consultation on the
policy. This is contrary to the letter and spirit of section
75 of the Northern Ireland Act 1998 which intends for equality
concerns to be central to the policy decision-making process.
The Equality Commission’s Guidance for Implementing
Section 75 of the Northern Ireland Act 1998 states that,
“1.4 The new statutory duties make equality central
to the whole range of public policy decision-making. This
approach is often referred to as “mainstreaming”.
The Council of Europe has defined mainstreaming as:
“the (re)organisation, improvement, development and
evaluation of policy processes, so that a[n] … equality
perspective is incorporated in all policies at all levels
and at all stages, by the actors normally involved in policy-making”.
(Gender mainstreaming conceptual framework, methodology and
presentation of good practices. Council of Europe, Strasbourg
May 1998)
This unequivocally involves incorporation of the principles
of equality of opportunity from the beginning of the process
and throughout the development and implementation of the policy,
not merely at the end of the process when decisions have been
taken in relation to the policy with no regard shown to section
75. The Department’s Equality Scheme explicitly states
that an equality impact assessment is required as an integral
part of the development of any policies which might be proposed
as a result of the review of post primary procedures. (Page
11, Department of Education’s Approved Equality Scheme
February 2001) It is clear from both the Equality Commission’s
Guidance and the Department of Education’s Equality
Scheme that the Department should have already carried out
an EQIA on this policy; however, no equality impact assessment
of the potential adverse impact of the introduction of the
new proposed admissions procedures has taken place to date.
The recent introduction of the Special Educational Needs and
Disability (Northern Ireland) Order 2005 (SENDO) places new
duties on bodies responsible for the provision of education
and associated services, admissions and expulsions in relation
to the education of pupils/ students. SENDO aims to ensure
full access to education for children and people with disabilities
and gives disabled pupils and students protection from unlawful
disability discrimination in education. We welcome the introduction
of SENDO and its application to schools and hope that it heralds
a new beginning in the promotion and protection of the rights
of children and young people in education. While SENDO places
new anticipatory duties on schools in relation to unlawful
disability discrimination, it falls short of the statutory
duty in section 75 which is a positive duty requiring public
authorities to be proactive in order to have due regard to
need to promote equality of opportunity for all children and
young people. The Equality Commission’s Guide to the
Statutory Duties makes it unequivocal that the section 75
equality duty goes much further than the elimination of discrimination,
stating that,
“The promotion of equality of opportunity entails more
than the elimination of discrimination. It requires proactive
measures to be taken to secure equality of opportunity between
the categories identified under Section 75.” (Page 81,
A guide to the implementation of the statutory duties on public
authorities arising from Section 75 of the Northern Ireland
Act 1998 - Revised February 2005)
Without the introduction of the section 75 statutory duty
in schools, disabled pupils will be protected from unlawful
discrimination under SENDO in education provision which we
believe does not go far enough to ensure a level playing field
for all children and young people. If schools are designated,
they will be required to take proactive measures to secure
equality of opportunity, ensuring both full and equal access
to education which offers much greater protection to disabled
children and young people at school.
In setting the current context we do not claim to provide
an exhaustive list of policy and legislative developments
in education in Northern Ireland. We do, however, wish to
highlight the urgent need for schools in Northern Ireland
to become designated public bodies if children and young people
are to have equality of opportunity in the education system.
This is particularly timely given the proposed large scale
changes to the current education system, the above examples
of the failure to have due regard to the need to promote equality
of opportunity under section 75, the five year review of equality
schemes and the impending Effectiveness Review being undertaken
by the Equality Commission.
Questions Posed in Consultation Document
We believe that schools should become designated public bodies
as a matter of urgency. We appreciate the additional onus,
in terms of resources, that this will place on some already
stretched schools but believe that there is a great deal of
expertise to draw upon in order to ensure that the transition
is a smooth one. Section 75 already applies to the Department
of Education, the Council for Catholic Maintained Schools,
the Council for Curriculum, Examinations and Assessment, Education
and Library Boards, Further Education Colleges and Universities.
Most of these bodies have been designated for five years and
there is much to be gained from looking toward them to see
what works and what doesn’t and to develop the necessary
skills required. Because of the knowledge and expertise which
exists in relation to section 75 and the obligations it places
on public bodies, schools are in a much better position than
most of the public bodies were when they were designated five
years previously. We note that the consultation document queries
who should be responsible for overseeing the mainstreaming
of equality in schools. We would argue that the specific arrangements
for the operation of equality mainstreaming in schools should
ensure equality of opportunity for all children and young
people and provide the maximum amount of support for individual
schools. We do not wish to specify a preference for the mechanisms
for delivery of equality of opportunity, but rather state
that we would support the most effective mechanism for mainstreaming
equality in schools, whilst providing adequate support for
the school itself.
While we accept that resource constraints may be an issue
for individual schools in the designation of schools under
section 75, we must emphasise the responsibilities of Government
to give affect to the rights of the children and young people
as raised by the UNCRC Committee. In 2002 the Committee recommended
that the UK Government allocate resources to the, “maximum
extent of…available resources”. (CRC/C/15/Add.188
para 11)
To comply with the UNCRC Committee’s Guidelines on Periodic
Reports the UK Government, in its report due to be submitted
in 2007 will be obliged to provide information regarding:
• The proportion of the budget devoted to social expenditures
for children, including health, welfare and education, at
the central, regional and local levels;
• Arrangements for budgetary analysis enabling the amount
and proportion spent on children to be clearly identified.
The steps taken to ensure that all competent national, regional
and local authorities are guided by the best interests of
the child in their budgetary decisions and evaluate the priority
given to children in their policy making; and,
• The measures taken to ensure that children, particularly
those belonging to the most disadvantaged groups, are protected
against the adverse effects of economic policies, including
the reduction of budgetary allocation in the social sector.
(CRC/C/58 para 20)
It is clear that, in keeping with Article 2 of the UNCRC -
the principle of non-discrimination, it is fundamental that
children and young people in the education system have equal
rights to be protected by section 75. It is also clear from
the UNCRC Committee’s recommendation and General Comment
(above) that limited resources cannot be a barrier to ensuring
that children’s rights are upheld.
We have a number of concerns in relation to the inferences
in the consultation document which imply a two-tiered hierarchal
approach to the implementation of section 75. The consultation
document queries the most appropriate way of mainstreaming
equality in schools, suggesting that the best way might not
necessarily be through the application of section 75. The
document also queries whether section 75 should be modified
for schools, whether it should apply to specific policies
and practices, how often and to whom schools should report
on progress made towards its equality objectives, what happens
when schools fail to comply with the requirements under section
75 and which schools should it all apply to. The Equality
Commission has produced very detailed guidance on the implementation
of section 75. We wish to see a very clear statement that
section 75 will be implemented in schools in exactly the same
way as it operates in all other designated public bodies.
We again must emphasise the high constitutional importance
of section 75 in the context of the new settlement in Northern
Ireland, as well as the importance of the rights of children
to the same basic human rights as adults under section 75.
Section 75 cannot be renegotiated at this stage and neither
can elements of it be ignored in favour of less stringent
requirements when it relates to schools. The intention of
the legislation is to promote equality of opportunity and
this must be done in exactly the same way in schools as in
any other designated public body. The identical application
of section 75 to schools needs to be unequivocal and there
should be a clear commitment to this so as not to undermine
the stated commitment to the need to have due regard to the
promotion of equality of opportunity among children and young
people and to all those in the age category in general.
Currently, section 75 has been in operation for five years
and there are a number of lessons to be learned in relation
to best practice. We feel that one such suggestion is that
schools put in place an internal mechanism for complaints
where there is an allegation of non-compliance with the duties
detailed in section 75. This is of particular importance given
the complex nature of section 75, the statutory complaints
process and the need for effective remedies. This internal
mechanism should in no way preclude a complaint being taken
to the Equality Commission if no consensus can be reached.
We have some concerns in relation to teacher training and
the emphasis on equality of opportunity in the education system.
The Equality Commission’s report, “Equality Awareness
in Teacher Education and Training in Northern Ireland”
(2004) found that equality issues are not given priority within
initial teacher education. The report also states that,
“Those trained as teachers in Northern Ireland agreed
that...issues of equality or equal opportunity were not explicitly
addressed in their courses.” (Page 17)
The report also found that the emphasis in schools was not
on equality of opportunity, but rather on the attainment of
standards which often excluded equality considerations,
“The Department’s (of Education) current dominant
agenda of improving standards in schooling obliges schools
to prioritise teaching, learning and assessment practices
in relation to improving pupil examination performance...
Other concerns for schools may be marginalised within this
standards agenda.” (Page 16)
Clearly there is a need for a shift in the practice of schools
and a much greater recognition of equality of opportunity
within teacher training. It is vital that these structures
are in place to ensure that equality of opportunity can be
properly delivered to all children and young people in schools
in Northern Ireland.
Conclusion
The Children’s Law Centre is grateful to have the opportunity
to comment on NFER’s consultation on Mainstreaming Equality
in Schools. We hope that our comments have been constructive
and useful to NFER and are more than happy to meet with NFER
staff to discuss anything in this response. We wish to be
kept informed of progress in the development of the consultation
exercise on Mainstreaming Equality in Schools and look forward
to the issues raised in this response being addressed, taken
forward by NFER and hearing from NFER in the near future.
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