SUBMISSION BY THE CHILDREN’S LAW CENTRE TO A SINGLE EQUALITY BILL FOR NORTHERN IRELAND

INTRODUCTION

The Children’s Law Centre was established in 1997. It is an independent non-governmental organization working to protect, promote and realise children’s rights in this jurisdiction. The centre is founded upon the principles laid down in the United Nations Convention on the Rights of the Child, 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 interest.
• Children have the right o have their voices heard in all matters concerning them.

The Children’s Law Centre is committed in working to:

1) Compliment existing services provided by the voluntary, community, statutory and legal sectors,
2) Work in partnership with children and other agencies committed to realising children’s rights;
3) Provide a comprehensive and accessible advice service on children’s rights and law as it relates to children and young people;
4) Involve young people in helping direct the work of the Centre through Youth@ clc;
5) Coordinate research and monitor the implementation of the United Nations Convention on the Rights of the Child;
6) Provide education and training programmes to all stakeholders to increase understanding of children’s rights legislation.

The Children’s Law Centre welcomes the opportunity to respond to the consultation paper “A Single Equality Bill for Northern Ireland”. We have responded on a previous occasion to the initial consultation exercise, which took place in August 2001. We welcome the development of a Single Equality Bill as an historic opportunity to ensure that children’s rights to be protected from discrimination and their rights in relation to equality of opportunity are protected in any new legislative framework.

We note that the stated purpose of the Single Equality Bill is to provide a clear and accessible framework of anti discrimination and equality law for Northern Ireland. Unfortunately we are not of the view that the piecemeal legislative framework which is currently in place is or ever has been accessible to children & young people and we hope that the opportunity will now be taken to address this.

A Children’s Rights Framework

We would urge government to ensure that the new legislative framework has at its core children’s rights values and principles and that the United Nations Convention on the Rights of the Child is specifically referenced in the opening sections of the Bill.

The United Nations Convention On The Rights of the Child/ Children’s Rights & Equality

The United Nations Convention on the Rights of the Child (the UNCRC) is an international treaty, to which the UK Government is a signatory containing 54 Articles in relation to the protection of children’s rights.

Article 2 of the UNCRC explicitly requires equality of opportunity for all children in accessing these rights.

Article 2 UNCRC

State parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents’ or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In addition the UNCRC requires State parties to ensure that in all actions concerning a child, the child’s best interests shall be considered (Article 3) and that the child should be provided with the opportunity to be heard in all judicial and administrative proceedings affecting him/her, the views of the child being given due weight in accordance with the age and maturity of the child. (Article 12).

These articles are key to any discussion about non discrimination and equality of opportunity for children and young people especially as increasingly the United Nations Convention on the Rights of the Child is being used as an interpretative tool in jurisprudence under the Human Rights Act 1998 which incorporated the European Convention on Human Rights. It is essential that a Single Equality Bill and all the associated Regulations and Guidance and enforcement mechanisms are compliant with the United Nations Convention on the Rights of the Child and recognises that the rights of children and young people under 18 must be protected as well as the rights of adults. This will of necessity mean looking at how historically children and young people have been able or more frequently unable to avail of the protection of anti discrimination legislation in this jurisdiction and to issue proceedings in the Industrial Tribunal or in the County Court under various pieces of anti discrimination legislation.

The United Nations Committee on the Rights of the Child

The United Nations Committee on the Rights of the Child made the following comments and recommendations in relation to the implementation of Article 2 of the UNCRC in October 2002 ;

“While welcoming the adoption of the Race Relations (NI) Order 1997 and the State party’s commitment to end discrimination in the State party’s nationality law between children born in or out of wedlock, the Committee is concerned that the principle of non discrimination is not fully implemented for all children in all parts of the State party and that unequal enjoyment of economic, social , cultural, civil and political rights still exist, in particular for children with disabilities, children form poor families, Irish and Roam travelers children, asylum and refugee children, children of minority groups, children in the care system, detained children and children between the ages of 16 – 18.”

“ The committee recommends that the State party;
a) Monitor the situation of children in particular those belonging to the above mentioned vulnerable groups, who are exposed to discrimination;
b) Monitor in a comparative way the enjoyment by children of their rights in England, Scotland, Northern Ireland and Wales;
c) Develop on the basis of the results of this monitoring, comprehensive strategies containing specific and well targeted actions aimed at eliminating all forms of discrimination and
d) Amend the nationality law to allow transmission of nationality through unmarried as well as married fathers.

In addition the Committee requested that specific information should be included in the next periodic report on the measures and programmes relevant to the Convention on the Rights of the Child undertaken by the State party to follow up on the Declaration and Programme of Action adopted at the 2001 World Conference against racism, racial Discrimination, Xenophobia and related Intolerance.

The United Nations Committee 0n the Rights of the Child issued recommendations on “General Measures of Implementation for the Convention on the Rights of the Child” on 3 October 2003. In respect of the implementation of Article 2 UNCRC, the Committee stated as follows;

“ This non discrimination obligation requires states actively to identify individual children and groups of children for whom special recognition and realization of their rights may demand special measures. For example; the committee highlights in particular the need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified. Addressing discrimination may well require changes in legislation, administration and resource allocation as well as educational measures to change attitudes. It should be emphasized that the application of the non-discrimination principle of equal access to rights does not mean identical treatment. A general Comment by the Human Rights Committee has underlined the importance of taking special measures in order to diminish or eliminate conditions that cause discrimination.

The Committee in this report recommends the development of an overarching strategy for children and young people, a legislative framework and an effective system of remedies for violations and enforcement. It is recommended that the strategy should be developed in consultation with children and young people and should include a description of a sustainable process for realizing the rights of children throughout the state; it must go beyond statements of policy and principle to set real, achievable targets in relation to the full range of economic, social and cultural and civil and political rights for all children.

This is very much linked to the concept of children’s rights programming, a matter which we will return to in the context of non-discrimination and equality at a later stage in this response.

Strategy for Children and Young People.

As we have noted Article 2 of the UNCRC requires rights to be afforded to children and young people in a non-discriminatory way. The development of protection against discrimination and the promotion of equality of opportunity in respect of children and young people in the Single Equality Bill should be linked to the overarching Strategy for Children and Young People being developed by the Office of the First Minister and Deputy First Minister.

PURPOSE AND PRINCIPLES

The Children’s Law Centre welcomes the development of a Single Equality Bill and the harmonization of anti discrimination law in Northern Ireland. It is our view that such harmonisation in respect of provisions which affect children and young people must take place within the children’s rights framework set out above and that children’s rights programming should be an integral part of this development.

Such harmonisation should be on the principle of “non regression” from existing legislative protections.

We believe that the Single Equality Bill represents an historic opportunity to consider how we can protect the rights of children and young people within an equality framework in Northern Ireland by developing a legislative framework, which is accessible and fair and an adjudication system, which considers how to deal with cases for children and young people under 18. There should be a visible statement about a commitment to international children’s rights standards in the legislation and specific provisions in the legislation relating to the conduct of children’s cases including forum, representation and evidence. It is extremely difficult to see how the rights of children and young people can be protected without careful thought being given as to their ability to a) know their rights, b) be able to access independent legal advice c) be able to access legal aid and representation d) be confident that the system of adjudication will be flexible enough to facilitate their cases.

In addition to “non discrimination” we would add our voice to those who believe that the Single Equality Bill must strike a balance between anti discrimination provisions and provisions which promote equality of opportunity, for example, by setting identifiable targets, monitoring provisions, timescales and consultation models. This is particularly important in respect of children and young people as historically they have not been visible in case law in individual cases. Monitoring should include the development of child impact assessment models, setting up children’s rights indicators and children’s rights programming.

We would support the development of a “common template” as suggested by the Equality Commission across all the grounds in the Single Equality Bill. Whilst recognizing that there may be differences / distinctions these must be clearly justified. We would be particularly concerned that the rights of children and young people would suffer in any system, which reinforced hierarchies of rights. This is evident from the fact that to date “the problems of an ageing population have tended to eclipse issues affecting younger people and children”. This is despite the fact that a recent survey has shown that more young people believe they suffer from discrimination in the workplace than older employees.

There should be a presumption that all children and young people are covered by the provisions of the new Bill, unless specifically excluded and we are pleased to note that the original suggested exclusion of children and young people under 18 from the goods, facilities and services provisions has not been duplicated in this current consultation document. This was a matter, which we specifically objected to in our original consultation response.

Finally, we believe that the Office of the First Minister and Deputy First Minister must consult with children and young people about these proposals in order to fulfill their obligations under section 75 of the Northern Ireland Act 1998. This should involve the production of a version of this complex consultation document for children and young people and a consultation exercise. We have noted the letter received by this organization dated 15 November 2004, which confirms that the OFMDFM are committed to engaging directly with children and young people as part of the overall consultation exercise.

When the legislation and guidance is implemented we would recommend that leaflets are produced for children and young people explaining to them what their rights are and how these can be enforced. There should be a proactive statutory obligation to produce information in an accessible format.

GROUNDS

Racial Grounds

We are in favour of extending the Race Relations (NI) Order 1997 to cover nationality and colour.

Disability

We welcome the extension of the definition of disability to include people with HIV, cancer and multiple sclerosis. We however believe that this extension of the definition does not go far enough and that careful consideration should be given specifically to disabilities affecting children and young people such as Autism, Aspergers Syndrome
and ADHD and also to mental health and learning disabilities in young people under 18. We support the view of the Equality Commission that there should be a fundamental review of the definition of disability under the Disability Discrimination Act 1995 and on the “ Guidance on matters to be taken into account in determining questions relating to the definition of disability”.

We would support the inclusion of genetic predisposition within a widened definition of disability.

Gender Reassignment

We support the extension of the definition of gender to include gender reassignment. Protection should be extended to cover access to goods, facilities and services and not only employment and training

Gender Identity

We also support the extension of the definition of gender to include gender identity.


New Grounds

We are of the view that in order to develop a comprehensive and coherent Single Equality Bill that all grounds covered in section 75 of the Northern Ireland Act 1998 should be included. This should encompass the ground of with or without dependants and guidance should clarify that “family status and dependants” includes children and young people who are carers. These grounds should all extend to access to goods, facilities and services.

Pregnancy and Maternity

Although the European Court of Justice has extended the definition of gender to include pregnancy, we would support, for the avoidance of any doubt, the specific inclusion in the Single Equality Bill of clauses which state that direct discrimination on grounds of pregnancy is direct discrimination on grounds of sex.

Language

We would support the inclusion of this ground in relation to the anti discrimination clauses of the Bill, on the basis that it would be reviewed in four years time as to whether the equality of opportunity provisions should be extended. We have noted the Human Rights Commission’s view that no legislation setting out official languages and defining language rights currently exists in Northern Ireland and that consideration should be given to the development of a comprehensive Languages Act which could incorporate anti discrimination provisions . Consideration will therefore have to be given as to the most appropriate legislative vehicle for this ground.

Past Convictions

We are of the view that children and young people with past convictions can experience significant discrimination because of those convictions and we have particular concerns that the impact of the new Anti Social Behaviour (NI) Order 2003 may see more young people criminalised for breach of anti social behaviour orders. We would therefore support the inclusion of this ground in relation to the anti discrimination clauses of the Bill, on the basis that it would be reviewed in four years time as to whether the equality of opportunity provisions should be extended, together with a review of the Rehabilitation of Offenders (NI) Order in respect of children and young people. This ground cannot however be dealt with in the uniform “common template” context of the other grounds discussed above and needs careful consideration. For child protection reasons and in order to comply with the requirements of the Children & Vulnerable Adults (NI) Order 2003, such a ground would have to be subject to strict exclusions in relation to employment positions which involve working with and access to children and young people under 18 and we would not be in favour of any clause which diluted the protections offered currently under the Rehabilitation of Offenders legislation in this regard.

Other Status

We are supportive of the inclusion of a category of “ other status” which is in accordance with the wording in the UNCRC and would allow for development of case law. For example, a child or young person who has been subject to a care order and in the care of social services may experience discrimination which would not fall within any of the other categories but could potentially be dealt with under the “other status” category.

Other Grounds

We are of the view that the other additional grounds of victims and socio economic status should be monitored and reviewed within 4 years. Whilst recognizing the disadvantage suffered by victims we believe that victims as a group or as a class are difficult to define and could not be dealt with within the uniform common template model discussed above. It is our view that it would be more appropriate to deal with the serious issues affecting victims in a holistic way.

With regard to socio economic status, the link between childhood poverty and social exclusion and discrimination is well established. It is our view that at this stage however these matters should be dealt with under new TSN and the Anti Poverty Strategy.

Equal Pay

We support the extension of the principle of equal pay for equal value across all grounds including age. We have particular concerns in this regard in relation to the differentiation in the minimum wage between 16/17 year olds and 18+ and also the fact that there is no minimum wage at all for young people under 16 who are allowed to legally work subject to the employment regulations under the Children (NI) Order 1995.

SCOPE

We agree that one of the key principles underlying the Single Equality Bill should be that there is no hierarchy of rights.

As stated in the consultation document, the European Framework and Equal Treatment (Amendment ) Directives will extend to both the public and private sectors in the following areas;

• Employment
• Self-Employment
• Occupation
• Membership and involvement in organisations of workers or employers
• Vocational guidance and training

The European Race Directive also applies to both public and private sectors but its scope is wider and includes in addition to the categories above the following;

• Social protection, including social security and healthcare
• Social advantages
• Education
• Access to and supply of goods and services including housing

The areas of protection of social protection, including social security, healthcare, social advantages and housing are currently exclusive to race and have been implemented in Northern Ireland by the Race Relations (Amendment ) Regulations NI 2003.

It is our view that there needs to be significant harmonisation upwards in order to protect children’s rights, with exceptions reduced to a minimum. In our view, it is particularly important that scope extends to social protection, social security, healthcare and housing across all grounds as these are the areas, which often impact most on vulnerable families and children and young people. There have, for example been considerable difficulties recently for young people accessing age appropriate mental health services, speech and language therapy and occupational therapy and suitable supported accommodation and it is our view that the Single Equality Bill should provide a legislative vehicle for strengthening the rights of children to access these services and implement obligations on government to monitor and conduct child impact assessments in these areas.

In particular it is essential that the protection from discrimination on grounds of age is extended to goods, facilities and services, including education (including services provided by schools).

We do not believe that there should be differences in the scope of the legislation depending on different grounds, but that there should be consistency throughout all the grounds including age.


Volunteers

The Children’s Law Centre has traditionally recruited a large number of volunteers. Volunteering is a valuable way of gaining experience, which can be referred to in job interviews and CV’s. It is our view that all volunteers should be brought within the scope of the Single Equality Bill. We concur with the view of Children in Northern Ireland in their submission in which they state that although costs could be incurred, this is outweighed by the fact that the voluntary sector are fundamentally committed to the principles and practice of equality and non discrimination.


Membership and Involvement in organisations of workers and employers

It is our view that these should be covered by the anti discrimination provisions and be subject to positive obligations in respect of the promotion of equality of opportunity.

Vocational Guidance and Vocational Training including practical work experience
Private Clubs/ Voluntary Associations

It is our view that these should be covered by the anti discrimination provisions and be subject to positive obligations in respect of the promotion of equality of opportunity.

Education

It is our view that all sectors of education should be brought within the scope of the Single Equality Bill. The Children’s Law Centre is concerned about the fact that under the separate disability discrimination regime being enacted by The Special Educational Needs and Disability Order (SENDO), it is proposed to extend the remit of the Special Educational Needs Tribunal to hear disability discrimination complaints, but that pursuant to article 22 (4) (b) of the proposed legislation, the tribunal will have no power to award financial compensation against schools in circumstances where it is established that a school has breached discrimination law. Remedies will therefore be restricted to issuing directions upon responsible bodies for schools to ensure an educational remedy for the child. Conversely, it is proposed that students in further and higher education colleges will only have recourse to the County Court where the only remedy for a breach is the award of damages for personal injuries.

The relationship between the SENDO and the Single Equality Bill in our view has not been considered in sufficient detail. Whilst of course we welcome the extension of the Disability Discrimination Act to education, the current position is unsustainable and is in itself discriminatory in the respect that an adult will be able to apply under the Single Equality Bill for damages in respect of disability discrimination, but a child cannot. It is our view that the Single Equality Bill should provide a remedy in respect of financial compensation in such cases for children in addition to any remedy available in the SENT for directions to take positive immediate steps to rectify the discriminatory situation with immediate effect. To do otherwise does not allow children access to an effective remedy or equality of arms as required by the European Convention on Human Rights as incorporated by the Human Rights Act 1998.


DEFINITIONS OF DISCRIMINATION

Direct Discrimination

It is our view that there have been historical difficulties with using a definition of direct discrimination which relies on finding a comparator and we would concur with the view of the Equality Commission that whilst a comparator is evidence of discrimination it is not the essence of discrimination and that there should be more focus on the effects and outcome of discrimination. We would therefore support Option C as a definition of direct discrimination i.e. “ Direct discrimination shall be take to occur when A has caused, causes or would cause disadvantage to B on the basis of any of the protected grounds”.

Indirect Discrimination

We believe that a common definition of indirect discrimination should apply across all the grounds. We agree with the definition of indirect discrimination used in the Race, Framework and Equal Treatment Directives i.e. “ Where an apparently neutral provision, criterion or practice would put persons of a particular disadvantage compared with other persons, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

We agree with the Equality Commission that a necessary aim test should substitute legitimate aim and that indirect discrimination provisions should extend to all grounds including disability.

Harassment

We do not think that a comparator should be required in harassment claims. As outlined in the submission to the Single Equality Bill by the Equality Commission , the EU Framework, Race and Equal Treatment Directives requires both a violation of dignity and the creation of a hostile environment. The government accepted however that under the principle of non-regression, a disjunctive approach was required in Great Britain and Northern Ireland on implementation so that either a violation of dignity or the creation of a hostile environment could be enough to satisfy the definition. We therefore believe that there should be a broad definition of harassment expressly defined in the Single Equality Bill i.e. violating B’s dignity or creating an intimidating, hostile degrading or offensive environment. This is particularly important in respect of young people who experience harassment at work.

Concept of Reasonable Adjustment

We agree with the Human Rights Commission and the Equality Commission that the reasonable adjustment ground could be effectively extended to cover other grounds and that there could be particular merit in considering the needs of children and young people within the context of reasonable adjustment. We also agree with the Human Rights Commission that the wording substantial disadvantage should be removed from the definition of reasonable adjustments as it present too high a threshold .


Victimisation

We are not of the view that a comparator should be required in victimisation cases.

EXCEPTIONS

Exceptions should be narrowly construed and the guiding principle of restrictive interpretation should inform exceptions under the Single Equality Bill. The Children’s Law Centre commented in detail on the use of exceptions in our response to the consultation exercise conducted in relation to age discrimination in employment and we would reiterate our concerns in this submission. Whilst we recognise the necessity of difference in treatment in respect of the employment and vocational training of children and young people particularly in respect of protection and that European Directives such as the Council Directive on the Protection of Young People at Work and Regulations such as the Working Time Regulations 1998 as amended, must be implemented with regard to the hours children and young people can work and with regard to health and safety we are of the view that there must be objective justification of exceptions shown to be in the best interests of the children and young people.

To quote Sandra Fredman;

“ While such legislation may in fact benefit young workers, there remain significant areas of negative discrimination, both in State policy and in the labour market as a whole. Thus minimum wage legislation sets a lower rate for younger workers, defined broadly to include employees under the age of 26. In addition research shows that the majority of young people believe there is age discrimination at work and a significant minority feel they have been discriminated against at work or when looking for work because of their age.”

Further, exceptions need to be carefully monitored and an audit of other legislative provisions relating to children and young people and employment e.g. The Employment of Children Regulations 1996 needs to be conducted to ensure that these do not currently discriminate against children and young people in their current format. We gave the example in our earlier submission of the current requirement that makes it illegal for children and young people to work more than two hours on a Sunday and illegal for children to work beyond 7 pm on a school day. Whilst we agree that the amount of hours per week and late nights/early mornings on school days need to be regulated to protect the exploitation of children, it is difficult to see how these particular provisions could be objectively justified on health and safety grounds as being in the best interests of children.

We are particularly concerned that the differentiation in rates of pay in respect of payment of the minimum wage whereby 16/17 year olds receive a lower rate of pay than 18+ young people is discriminatory on grounds of age and could not be objectively justified on principles of equal pay for work of equal value.

As suggested in our original response, all legislation, which sets age restrictions on particular types of employment should be reviewed and audited to ensure that they can be objectively justified on the best interest of the child principle.

School Teachers Exemption

We are not in favour of retaining the current exception in relation to the recruitment of teachers, which exists under the Fair Employment and Treatment Order, for either primary or secondary schools.

Genuine Occupational Requirement

We would wish to see a narrowly defined genuine occupational requirement clause, where reliance on such a requirement is linked to the “ essential nature of the job” and must be strictly justified on a case-by-case basis. We would wish to see a move away from the long lists of exceptions attached in the appendix to chapter 6 of the consultation document.


GOODS, FACILITIES AND SERVICES

It is our view that the provisions of the Single Equality Bill relating to goods, facilities and services should extend across all the equality grounds, including specifically age and sexual orientation. The scope of these provisions should extend to social protection, social security, health and social care,education and housing.

Definition

We favour the definition of goods, facilities and services outlined in the consultation document at 14 c i.e. “the SEB could leave goods, facilities and services without express definition but give guidance, both by way of examples and more directly, on whether to take a broad or narrow approach. For example, the SEB could state that there was a presumption that an activity constituted provision of goods, facilities or services unless demonstrated otherwise.”


Public Functions

All public functions should fall within the ambit of the goods, facilities and services provisions whether carried out by public or private bodies.


Timing

We do not agree that the introduction of goods, facilities and services provisions in relation to age should be deferred and we would strongly support the introduction of all provisions at the same time.

General Service Requirement

We would favour narrowly construed general service requirements with specific examples in the legislation and further guidance in a Code of Practice. We are particularly concerned about the use of blanket exemptions such as “ goods or services regarded as being suitable only to the needs of persons of a particular age” which was one of the examples of exceptions set out in the original consultation document “Promoting Equality of Opportunity – A Single Equality Bill”. We believe there needs to be further extensive consultation on general service requirements and exceptions.

Addressing Under Representation in Employment

We believe that clauses prohibiting direct and indirect discrimination should be combined with requirements across all the equality grounds included in the Single Equality Bill to actively promote equality of opportunity. There is well-documented evidence that the FETO ( Fair Employment and Treatment Order) model has produced significant improvements and we are of the view that this could potentially be extended across all other grounds.

Child Impact Assessment

In addition it is essential that a system of child impact assessment is developed combined with child centred planning and children’s rights programming.

Enforcement Powers

We are supportive of the central role of a properly resourced and effective Equality Commission in the enforcement of the Single Equality Bill. It is our view however that the Equality Commission must develop policies and procedures which are accessible by children and young people who wish to assert their rights. We would like to see, for example the production of child friendly information about the rights of children and young people under the Single Equality Bill, information about how to access the Equality Commission and legal procedures/giving evidence, child friendly waiting facilities for the interview of children and young people and the development of training on communication techniques with children and young people for those dealing with their cases. There must also be a clear Memorandum of Understanding developed between the Equality Commission and the Commissioner for Children and Young People.


Power to Support Individual Complainants

The Equality Commission should provide support for individual children and young people to take complaints under the Single Equality Bill and should be able to provide financial assistance to other representatives to take such cases. It is of course unrealistic to suppose that the Equality Commission will have a budget to take cases for all the children and young people who make complaints.

Therefore, in addition, it is our belief that children and young people should be able to access legal aid through the Legal Services Commission to instruct their legal representatives in cases under the Single Equality Bill. There is no doubt that a system of adjudication under the Single Equality Bill will only be fair and provide equality of arms in children’s cases if access to legal aid is afforded.

It is also our view that the Equality Commission or a representative voluntary organization should have the power to take a case in their own name under the Single Equality Bill. This is particularly important in cases for children and young people under 18 who often find court and tribunal procedures to be intimidating and frightening experiences. In so doing the Equality Commission should be able to rely on rights under the European Convention on Human Rights which will require legislative amendment to the Northern Ireland Act 1998 and the Human Rights Act 1998.

We are not in favour of the recovery of expenses provision being extended to cases for children and young people under 18.

With regard to investigations, the power to investigate should be accompanied by the power to compel production of information.


TRIBUNALS AND COURTS

Legal aid

As stated above we believe that children and young people should be allowed to access legal aid through the Legal Services Commission to take a case under the Single Equality Bill. This should be assessed on the means of the child or young person making the complaint. We are disappointed that the consultation paper indicates that legal aid as a reserved matter is outside the remit of this consultation as we view it as an essential factor, which must be discussed in the context of access to justice under the Single Equality Bill.


Class/ Representative Actions

In recognizing the resource implications and limitations of taking large numbers of individual test cases, we would support a clause in the Single Equality Bill, which would allow class actions to be taken.

Specialist Equality Tribunal

We would be in favour of the development of a new system of specialist equality tribunals dealing with all discrimination matters (Option d), but only on the basis that legal aid would be made available. If legal aid is not made available this in our view will amount to a regressive step as legal aid is currently available for applicants applying to the County Court in goods, facilities and services cases and education cases (under the Race Relations and Sex Discrimination Orders).

We would support the Human Rights Commission’s view that the establishment of an Employment and Equality Appeals Tribunal would be welcome in Northern Ireland rather than going directly to the Court of Appeal.

Participation of Children & Young People

We would expect to see the development of a system which caters for the needs of children and young people – by this we mean that there should be specific regulations and guidance concerning the conduct of children’s cases, specialised training for advocates and tribunal staff and adjudicators and facilities which are designed for hearing children’s cases. Recent case law in the European Court of Human Rights has emphasized increasingly the importance of assuring a fair hearing for children and young people by ensuring that they can participate and understand proceedings in which they are involved. Pursuant to the case of T & V v UK , the Lord Chancellor introduced a Direction to the Crown Court indicating special measures that must be taken to ensure children can participate and understand. In relation to children with mental health and learning disabilities the onus is even greater and the European Court has now made it clear that we need to consider whether a specialist tribunal should be established in such cases. It is also essential in our view that children and young people are provided with independent legal representation. We not persuaded that either the Tribunal system or the court system dealing with discrimination cases has in the past been accessible to children and young people and we hope that the opportunity will be seized under the Single Equality Bill to make meaningful changes in this area.

Remedies

We are in favour of a broad range of remedies including reinstatement, re engagement and damages being available to the Tribunal across all the grounds and we would agree with the extension of the availability of compensation for indirect discrimination across all the grounds. The power to make interim orders that respondents take action to obviate or reduce the adverse effect of discrimination should be extended across all the grounds in respect of employment and goods, facilities and services, as this could have considerable impact on children’s cases, where time is of the essence.

Conclusion

We believe that the Single Equality Bill presents an opportunity to protect, promote and realise the rights of our children and young people in Northern Ireland. We sincerely hope that the opportunity is grasped and that the Single Equality Bill can be the main vehicle for implementing the recommendations of the United Nations Committee on the Rights of the Child in respect of Article 2 of the UNCRC.

Children’s Law Centre, November 2004