Save the Children and the Children's Law Centre Submission
to theNI Human Rights Commission on the
Draft Bill of Rights

January 10, 2002

Introduction

Save the Children and the Children's Law Centre (SCF and CLC) welcome the publication of the consultation document on the draft Bill of Rights for Northern Ireland by the Human Rights Commission. From their perspectives as organisations, which work with and on behalf of children, both directly and indirectly, Save the Children and the Children's Law Centre are grateful for the opportunity to offer the Commission further assistance in drawing up the Bill of Rights.

There is a debate among legislators, policy makers and policy shapers about whether the Bill of Rights for Northern Ireland should deal with wider issues than those directly related to the 'two communities'. Save the Children and the Children's Law Centre believe that the question of children's rights is a clear example of why the Bill of Rights must deal with those wider issues.

On the one hand, it is widely acknowledged that children in Northern Ireland have suffered as a result of the conflict. We know, for example, that between 1967 and 1997, 257 children aged 17 and under died as a result of political conflict in Northern Ireland. Further, between 1991 and 1997, 120 young people were shot (usually in the kneecaps) and 234 assaulted by paramilitaries in the course of so-called 'punishment beatings'.

There is growing evidence that the conflict has had a traumatising effect on far larger numbers of children and young people than was formerly acknowledged. Leitch and Kilpatrick (1999) researched the effect of political conflict on children's education in Northern Ireland. They found that virtually every one of the 78 pupils they spoke to initially tended to minimise the effects of political conflict upon his or her life and education. However, when probed, substantial evidence was uncovered of often very traumatic impact by the conflict on the young person's life and education.

Growing up in a highly segregated society like Northern Ireland has been shown to also take its toll. Segregation affects every aspect of children's lives: housing, education and leisure.

In the above context, if the Bill of Rights is to take account of "the particular circumstances of Northern Ireland", and to reflect "the principles of mutual respect for the identity and ethos of both communities and parity of esteem", (Belfast Agreement, 1998) it must include social, economic and cultural rights, as well as civil and political rights, for children and adults.

While Save the Children and the Children's Law Centre support the incorporation of the UN Convention on the Rights of the Child (CRC) into the Bill of Rights for Northern Ireland, we are concerned that higher standards must be established. The UNCRC is the lowest common standard among the large number of nations that make up the United Nations, some of whose human rights record is severely wanting. If the NI Human Rights Commission is committed to building on and improving our own human rights standards, then it must demonstrate this in the Bill of Rights, rather than rely on international standards if those standards are inadequate or weak.

We are also concerned that the European Convention on Human Rights, while part of domestic law, contains many deficiencies in the area of children's rights and that reliance on the ECHR also provides an insufficient level of protection. Save the Children and the Children's Law Centre submit, therefore, that in order to deal effectively and comprehensively with the rights of children, the Bill of Rights must draw from and build on both treaties and aim to set standards as high as practicable. In this regard, we submit that the Bill of Rights must contain both a stand-alone provision dealing exclusively with children's rights as well as references to children's rights in all other provisions, as relevant. Moreover, the SCF and CLC support strongly incorporation of the CRC's principles of non-discrimination, best interests and the child's right to participate where appropriate, with provisions combined from the ECHR and the CRC used to create higher standards, tailored to the legal and social conditions in Northern Ireland.

Save the Children and the Children's Law Centre's specific recommendations follow below, where they are divided into two sections dealing with substantive and implementation issues. The Commission's questions for consideration are identified where appropriate.

Section 1: Substantive Provisions

1. Preamble:

Save the Children and the Children's Law Centre are disappointed that there is no reference to children or children's rights in the Preamble of the Bill of Rights, particularly given the Commission's recommendation in section 15 (p93) that interpretation of the Bill of Rights must have due regard to the Preamble. In addition, two factors strongly support the inclusion of at least a single provision on children's rights (although the Working Group suggested 5 such provisions) - firstly, support for children's rights is universal and secondly, the special protection, which childhood deserves, is brought into sharp focus in Northern Ireland where children have grown up during the years of conflict. For these reasons (in response to Question 5) Save the Children and the Children's Law Centre submit that the following paragraphs should be added to the existing Preamble at section 1 (p17):

Bearing in mind that childhood is entitled to special care, protection and assistance;

Recognising because of their particular vulnerability children have suffered the legacy of the conflict, including the loss of childhood;

Considering that children, for the full and harmonious development of their personality should grow up in a safe, family environment and in an atmosphere of happiness, love and understand;

Considering that children should be brought up in the spirit of peace, dignity, tolerance, respect for other traditions and cultures, respect for the rights and freedoms of others and equality and solidarity;

In addition, SCF and CLC submit that the Preamble should reiterate the state's obligation to implement fully the UN Convention on the Rights of the Child and other binding international treaties to which it is a contracting party and build upon these obligations in the Bill of Rights.

2. Voting Age:

The Commission has recommended in section 2 (p16) that the voting age should be reduced to 17. However, in light of the fact that young people attain majority with respect to a variety of activities at 16, Save the Children and the Children's Law Centre submit that the voting age be set at 16. This would reflect the large proportion of young people in Northern Ireland and aim to secure their involvement in its political future (Q7).

3. Equality:

Save the Children and the Children's Law Centre support the use of stronger language in the context of equality (p29). We recommend, therefore, the rephrasing of the non-discrimination provisions to include a more explicit positive obligation on the State to secure all rights and freedoms to everyone without discrimination. Such a clause might read:

The state shall take all appropriate measures to secure to everyone their rights and freedoms without discrimination on any grounds whatsoever…

This makes explicit that in addition to refraining from discriminatory action, the State must also takes measures to remove obstacles in the way of children seeking to enjoy their rights.

While SCF and CLC welcome the inclusion of the ground 'age' in the equality provision we submit that a clause be inserted securing to children the right to be protected from discrimination or punishment on the basis of the status, activities, opinions or beliefs of the child's parents, guardians or other family members. This provision is derived from Article 2(2) UN Convention on the Rights of the Child and its particular relevance to Northern Ireland supports its inclusion here.

4. Liberty and Fair Trial Rights:

Save the Children and the Children's Law Centre argue strongly that the main provisions of the Bill of Rights dealing with liberty and fair trial rights should state expressly that these rights apply also to children. Moreover, it is vital that such provisions also set out the additional protection, to which children are entitled in these circumstances. We recommend, therefore, that the special provisions set out in section 10 under section (e) on p62 should be included in both Section 7 on criminal justice, thereby reinforcing the importance of these rights for children, and in the children's rights section in section 10. In the alternative, if the Commission decides that the provisions should be set out only once, section 10 might include an abbreviated version of these rights, in the form of general principles. In this regard, emphasis should be placed on the right of the child in conflict with the law to be treated in an age and need appropriate manner at all times and in a manner that respects their rights and promotes the child's reintegration into society.

The following specific issues also need to be addressed, however.

• Save the Children and the Children's Law Centre submit that the Bill of Rights should reflect the fact that detention for the purpose of educational supervision in Article 5 (1) (d) ECHR has been interpreted by the European Court of Human Rights in Koniarska v UK as limited to circumstances where secure accommodation is necessary to administer treatment. We recommend that this section of the Bill of Rights be amended accordingly to reflect s 25 of the Children Order 1995 so as to prevent arbitrary detention outside these conditions. The alternative wording of this exception to the right to liberty might read:

The detention of a child by lawful order for the purpose of securing to him/her urgent care, protection and treatment.

• Paragraph 4 on p50 regarding detention on remand, while welcome, does not reflect the requirement, set out in ECHR law, that greater expediency is required in cases involving children. The SCF and CLC recommend, therefore, that this factor be given express provision. We propose that the following sentence be added as a new second sentence to paragraph 4:

The State must show exceptional diligence in bringing children speedily to trial.

• Moreover, neither paragraph 12 on p52, nor paragraph 4 on p68 in section 10 on detention as a measure of last resort reflect the requirement set out in the UN Minimum Rules for the Protection of Juveniles deprived of their Liberty that imposing a custodial sentence as a measure of last resort refers to the situation where no other sentence is appropriate, incorporating the best interests principle. Save the Children and the Children's Law Centre recommend that these provisions be amended accordingly to reflect the requirement best interests of the child be a paramount consideration in the sentencing process. We recommend the following sentence be added to paragraph 12 on p52 and should replace the second sentence of paragraph 4 on p68:

The detention of a child shall only be used as a measure of last resort, for the shortest appropriate period of time and where no other sentence is appropriate and where it is in the best interests of the child.

• Save the Children and the Children's Law Centre also submit that the recommendations made below regarding section 10 be incorporated into section 7. In particular, we highlight the need to impose an obligation on authorities to provide rehabilitative and educational programmes for children in detention given that the likelihood of successful reintegration into society is greatest with the young.

5. Family and private life:

Save the Children and the Children's Law Centre support the inclusion of paragraphs 3 and 4 in section 9 on the rights to family life and private life (p58). In addition, however, we propose that the Bill of Rights should recognise the right of children to have their birth information accurately and fully recorded and should guarantee the right of all children to access their birth, genetic and other personal information in all circumstances where it is consistent with their wishes and their best interests. The provision might read:

Every child shall be registered immediately after birth and shall have the right from birth to know and be cared for by his/her parents. Every child has the right to access their own and their family's personal and medical records.

6. Freedom of expression:

Given the importance which young people themselves attach to their freedom of expression, SCF and CLC recommend that this provision be strengthened in the following ways.

The provision should be expanded to include child appropriate media as per Article 13 of the UN Convention on the Rights of the Child. The amended provision would thugs read:

…to receive and impart information and ideas without interference by public authorities, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.

Secondly, the CLC agrees with the proposal that the Bill of Rights include the right to receive and impart information, as recognised by Article 13 CRC (Question 31 p78).

Section II: Specific Children's Rights Provision

1. Incorporation of the UNCRC:

Save the Children and the Children's Law Centre support the incorporation of the UN Convention on the Rights of the Child into the Bill of Rights for Northern Ireland. However, we are concerned that there is a need for higher standards to be established. We recommend the inclusion of the following provision:

The State recognises that the UN Convention on the rights of the Child contains a set of minimum standards. It thus undertakes to secure to children the highest possible standards of protection for their rights and agreed to make maximum resources available for this purpose.

As mentioned already the UNCRC is the lowest common standard among the large number of nations that make up the United Nations, some of whose human rights record is severely wanting. The UNCRC itself contains some contradictions and is reflective of the time in which it was drafted. The world has changed dramatically since then, particularly for children who have to live with changes initiated by adults in powerful positions. If the NI Human Rights Commission is committed to building on and improving our own human rights standards, then it must demonstrate this in the Bill of Rights, rather than rely on international standards if those standards are inadequate or weak. In addition and in order to fulfil the aims set out in the NIHRC's strategic plan realising and promoting children's rights there is a need to think beyond the UNCRC which although provides a starting point should not indicate the final destination point in terms of children's rights.

Save the Children and the Children's Law Centre agree with the Commission's approach to include in the children's rights provision an explicit obligation on authorities to comply with the UN Convention (Chapter 10 p63).

However, Save the Children and the Children's Law Centre are concerned about the wording of paragraph 3 on p64 of the consultation document. Firstly, we recommend that the word 'reasonable' be replaced with 'necessary' so that the sentence reads that (public authorities) 'shall in addition take all necessary steps to ensure for all children the following rights'.

Secondly, we are concerned that this obligation is limited to the rights sets out in the Bill of Rights. It recommends, therefore, that this obligation to take steps to ensure children's rights expressly extend to the rights in the UN Convention, as well as the Bill of Rights for Northern Ireland. Accordingly, the section might read

Public bodies shall carry out their functions in relation to children in accordance with the provisions of the UN Convention on the Rights of the Child and this Bill of Rights and shall take all necessary measures to implement all the rights recognised there and herein.

2. Special Protection for Children

SCF & CLC are extremely concerned that at no point in the Bill of Rights is the child's right to special protection set out. The Working Group report recommended the inclusion of the following clause:

The State guarantees to every child and young person in need of care and protection such services and treatment as are necessary for his or her well-being.

This clause is found in the international Bill of Rights (ICCPR and ICESCR) and SCF and CLC recommends strongly that it be included in the Northern Ireland Bill of Rights in order to guarantee that children will receive the care, protection and treatment that their special position of vulnerability requires.

3. Best Interests (paragraph 2, p64)

SCF and CLC are concerned that, similarly, the best interests principle is limited to the rights set out in the Bill of Rights. Accordingly, it recommends the deletion of the phrase 'the following rights shall be interpreted as subject to that requirement' which will instead require that the best interests principle guide all children and not just those where their rights are at stake.

4. Participation rights (paragraph b, p65)

Save the Children and the Children's Law Centre welcome the paragraphs on children's participation rights. We support the retention of the third paragraph on the right of children to participate in society and advocates use of the model set out in s 75 NI Act 1998, whereby public bodies would have to produce schemes to show how they are consulting with children, to enforce this right. Save the Children and the Children's Law Centre recommend that this obligation apply to public bodies, as well as all those bodies publicly funded.

5.The Family (paragraph c, p66)

In relation to Q26 Save the Children and the Children's Law Centre support the original wording recommended by the Children and Young Person's Working Group, i.e. the first option in (c) (1) which states the child's right to a safe, stable family environment as a positive right. We submit that this right is an important foundation that must be included in the Bill of Rights, together with an obligation on state authorities to work toward this end. This view is reflected in a recent judgment of the Court of Appeal where Hale LJ held that every child has a right to a new family, where the state has intervened in the child's best interests to deprive them of their original family.[1]

SCF and CLC submit that the family must be subject to a broad interpretation, which reflects the variety of modern family arrangements. Moreover, the obligation on the State to provide adequate support and assistance must include financial support as well as making available facilities and services designed to assist parents in the child-rearing process. Finally, SCF and CLC wish to stress the importance of the reference in paragraph (c)(2) to the rights of children in and leaving care. It is vital that children in care receiving the on-going protection and care they need when they leave the care process. Such support should include financial, practical as well as the emotional support that children in other circumstances would expect from their families.

6. Protection Rights

SCF and CLC support the inclusion of the two clauses in paragraph (d, p67) on protection rights.

7. Children in Conflict with the Law

7.1 Age of Criminal Responsibility

Save the Children and the Children's Law Centre recommends that the age of criminal responsibility be raised to at least 14 years (Question 27 p67).

We agree with the obligation to keep the age of criminal responsibility under review. However, we would like to see the terms of the review qualified by the word 'regular' and a reference to keep pace with developments in international law and in other countries (Question 28).

7.2 Equal Treatment in the Justice System

SCF and CLC also recommend the inclusion of the equal treatment clause recommended by the Working Group in this context. It proposes that the following sentence be added to paragraph (e) on children in conflict with the law:

The State shall strive to ensure the equal treatment of all children in the criminal justice system.

Children in Northern Ireland are currently treated differently depending on the legislation under which they are taken into custody and their age. Accordingly, it is vital to reinforce the right of all children to equal treatment.

7.3 Obligation to Implement International Standards

SCF and CLC recommend that the provision setting out the rights of children in conflict with the law makes express reference to the standards set out in the Beijing Rules, the Riyadh Guidelines and the UN Rules for the Protection of Juveniles Deprived of their Liberty. Accordingly, it recommends the following:

The State shall secure to all children in conflict with the law the rights set out in international law. In particular, it undertakes to implement the minimum standards enshrined in the United Nations Guidelines for the Prevention of Juvenile Delinquency, the UN Standard Minimum Rules for the Administration of Juvenile Justice and the UN Rules for the Protection of Juveniles deprived of their liberty.

7.4 Deprivation of Liberty

Save the Children and the Children's Law Centre submit that the following sub-paragraphs be added to paragraph 6, p69 on the minimum rights which every child deprived of liberty should have

• the right to access comprehensive health care facilities, including dedicated psychiatric services;
• the right to participate in meaningful activities and programmes designed to foster their sense of responsibility and respect for human rights, to encourage their personal development and prevent them from re-offending.

The former reflects the current problems regarding access by children in detention to psychiatric services and the second paragraph reflects the emphasis on rehabilitation and reintegration in the UN Minimum Rules for the Protection of Juveniles deprived of their Liberty, 1990.

7.5 Children with Disabilities

SCF and CLC are concerned that the use of the clause 'to the greatest extent possible' twice in the provision on the right of children with disabilities threatens to undermine the obligation to guarantee their rights. It recommends accordingly that this phrase be deleted from paragraph (f, p69). Otherwise we support the proposed provision.

7.6 Right to Play (paragraph g, p69)

We recommend the adoption of this provision as proposed.

7.7 Health Care (paragraph h, p70)

Save the Children and the Children's Law Centre submit that the provision on health care should include a reference to those risks faced particularly by children, including alcohol, tobacco and drugs. This reference might be best included in the second paragraph which might read

The State shall take appropriate measures to address health problems and risks specific to children, including alcohol, tobacco and drugs, and to promote the health and health care of all children.

We are concerned about the access by children in detention to psychiatric services and recommend that the Bill of Rights address this issue in this provision as well as about in the section on liberty. Accordingly, it recommends inclusion of the following clause after the current paragraph 1 in section (h) on Health Care:

Children in detention have the right to enjoy equal access to such services.

7.8 Education (paragraph i, p70)

SCF and CLC are concerned about discrimination in the educational sector and the inequalities, which exist currently. In particular, we believer that the groups most discriminated against are children in care, children with disabilities, ethnic minorities ad Traveller children, who do not enjoy equal access to the educational system not do they benefit equally from it. We note that it is important to address the inequity of the 11 plus system and the failure of the State to provide a positive alternative to the existing segregated school system.

Consequently, we submit that the provision on education in the children's rights section should also include an explicit reference to non-discrimination notwithstanding that this is included in the section on education. We recommend the following provision be substituted for paragraph 2:

The state shall take appropriate measures to ensure that access to education is guaranteed to all children without discrimination, and that it respects the rights and needs of all children, especially…

Save the Children and the Children's Law Centre submit that the reference to child participation in the third paragraph on Education should not be confined to all matters affecting his or her education, but should refer instead to all matters affecting children. This requires broader child participation in schools and compels their consultation on matters such as break-times, uniforms and school trips which may fall outside the proposed reference to educational matters. Paragraph 4 should thus read

The State shall take measures to protect the safety of children in school, to respect their right to privacy and human dignity, and to guarantee their effective participation in all matters concerning them.

7.9 Children's Economic Rights (paragraph j, p71)

SCF and CLC welcome the provision protecting the child from economic exploitation and harmful work. However, we are concerned that the second paragraph of this provision may be ambiguous regarding the protection to be offered to children below and about school leaving age. We recommend, therefore, that it be replaced with a provision setting out expressly the rights to which all children are entitled, including that children who work are entitle to special protection as well as the right which normally extend to all workers. The proposed provision reads as follows:

Children who work are entitled to special protection. The State shall set a minimum age for admission to employment and provide appropriate regulation of the houses and conditions of employment, providing for appropriate penalties or other sanctions to ensure the enforcement of this provision.

The State must also guarantee to children who work the same tights and protection as all other workers, particularly in relation to the right to just conditions of work, the right to safe and healthy working conditions, the right to a fair remuneration, the right to organise and the right to bargain collectively and the right to equal opportunities and equal treatment without discrimination on any grounds.

7.10 Awareness about Rights (paragraph k, p71)

In the light of the importance of this provision, SCF and CLC recommend the more strongly worded clause, which follows:

The State shall make the rights of children widely known and accessible to all. To this end, it shall include human rights education on the school, youth service and training curricula as well as on the training programmes for all those working for and in connection with or behalf of children.

SECTION III - IMPLEMENTATION

1. A Human Rights Court:

It is clear that the Bill of Rights can only bring about an improvement in the lives of people in Northern Ireland if it contains effective means for its enforcement. It should not be only a paper exercise. If people are to have faith in the Bill of Rights and indeed see the NIHRC as a body, which upholds and promotes people's rights then clearly there is a need for an effective mechanism in order to ensure that the Bill is implemented in full. In this regard, Save the Children and the Children's Law Centre argue that a new human rights court should be established dedicated to the enforcement and adjudication of the rights and freedoms set out in the Bill of Rights. Such a court could serve to underline the commitment to human rights protection in Northern Ireland, making protection of human rights central to the thinking of all judges in all courts. Judges selected to sit on the new human rights court would, it is submitted, have to be appointed through a process of independent selection.

2. Remedies:

Save the Children and the Children's Law Centre submit that the effectiveness of the Bill of Rights is also dependent on giving the courts wide powers to award to those whose rights have been or may be violated any remedy or relief that is just and appropriate. We answer question 38 (p103) in the affirmative, therefore and agree with the proposed wording while stressing the importance of permitting the courts to award any appropriate and effective remedy to those whose rights have been violated..

3. Standing:

Save the Children and the Children's Law Centre submit that victims, their representatives or those acting on their behalf should be entitled to take a case to court in order to have their rights vindicated. The taking of test cases should be permitted. In addition, the SCF and CLC argue that legislation, or administrative policies or practice should also be capable of challenge by relevant public bodies or private organisations, which have a legitimate interest in such an action. The answer to Question 40, p104 as to whether any interested individual or body should be able to bring a case under the Bill of Rights is yes, therefore.

As to the rest, which should be, applied (Question 41, p104) SCF and CLC agree that any person or group with a legitimate interest in the matter should be able to institute proceedings concerning the alleged breach of any provision of the Bill of Rights. We support the view that the appropriate procedure for determining standing should be based on the current rules of judicial review, while stressing the importance of an expansive approach to this issue.

4. Review of Proposed Legislation:

Save the Children and the Children's Law Centre support the view that it should be possible under the Bill of Rights to submit draft legislation to the courts for an examination of its compatibility with the Bill of Rights. We answer Question 42, p105 in the affirmative, therefore. We also agree with the Commission that this interpretation should not protect the legislation from future challenge, however.

Question 43 asks for proposals as to the mechanism whereby the compatibility of proposed legislation with the Bill of Rights can be referred to the courts. In response, SCF and CLC agree in principle with the mechanism, which operates under Article 26 of the Irish Constitution with the distinction that under the Bill of Rights, the legislation should continue to be capable of challenge. We also recommend that the persons or bodies capable of submitting legislation for challenge should not be restrictive and should include interested parties outside the political process.

5. Entrenchment:

Save the Children and the Children's Law Centre wish to express our strong support for the entrenchment of the Bill of Rights and recommend that the Bill of Rights occupy the highest position in the constitutional and legal hierarchy.

In response to Question 44, p108 we propose that no amendment of the Bill of Rights should be made possible without a weighted majority referendum of the people of Northern Ireland.

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[1] Re W & B, Re W (Children) (Care Plan) [2001] 2 FCR 450