RESPONSE TO PROMOTING EQUALITY OF OPPORTUNITY- A SINGLE EQUALITY BILL FOR NORTHERN IRELAND

The Children’s Law Centre is an independent charitable organisation established in September 1997 for the purposes of helping young people, their parents/carers, and professionals understand the laws, which effect children and young people in N Ireland.

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.

Our organisation is founded on the principles enshrined in The United Nations Convention On The Rights of the Child.

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

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. We have attached a copy of the UNCRC for ease of reference.

Art 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 equality of protection for children’s rights especially as increasingly the United Nations Convention on the Rights of the Child is being used as an interpretative tool in ECHR/Human Rights Act 1998 jurisprudence. It is essential that a Single Equality Bill and all the associated Regulations and Guidance and enforcement mechanism are compliant with the United Nations Convention on the Rights of the Child and recognises that the rights of children and young people must be protected equally with the rights of adults. This will of necessity mean looking at how historically children/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.

SCOPE OF A SINGLE EQUALITY BILL

We would recommend that the Single Equality Bill should cover all nine categories covered by Section 75 Northern Ireland Act 1998 including “people of different ages” which brings within it’s scope children and young people. The category “or other status” should also be included to reflect the protection afforded by Article 14 ECHR as incorporated by The Human Rights Act 1998, Art2 of the United Nations Convention on the Rights of the Child and to reflect the equality clause under consideration in relation to the Bill of Rights.

We recommend that the provisions of the Single Equality Bill should cover all ages. We would strongly oppose any attempt to restrict access to goods and services provisions to those over 18. This, in our view, would be a serious error and potentially in breach of the Human Rights Act 1998 for example Art 14 (Anti discrimination clause) read in conjunction with Art2 of Protocol 1, (the right to effective education).

Take, for example the case of a young boy of 15 who is excluded from school and who cannot get any more than 3 hours per week home tuition as opposed to a 12 year old who is quickly placed on an out of school programme. Or the 17 year old who cannot get accommodation because he is too young to sign a contract for a tenancy and considered to be too old to require Trust accommodation. What of the 4 year old child trying to get access to a Trust service, such as speech therapy? He is told there is a lengthy waiting list for pre school children and that children who are at school will get first preference or his family finds out that adult waiting lists for speech therapy are much shorter. This is clearly discriminatory practice, but would not be challengeable if the access to goods and services provisions were restricted to over 18.

We recommend that the Single Equality Bill should cover employment, and the provision of goods, facilities and services applicable to at least all S75 categories. It would be particularly important from a children’s rights perspective to include areas, which are included in the EU Race Directive such as social protection/social security/social advantages/health and education.

We would also recommend that there should be a clause in the Single Equality Bill allowing the Equality Commission or appropriate NGO’s to take forward a case in their own name on behalf of an individual or group of individuals with their consent and be resourced accordingly. This is particularly important in relation to the protection of children’s rights as, very often, children and young people may wish to maintain anonymity or do not want to go through the trauma of giving evidence to a court or Tribunal. (See Article 9 of the EU Employment Framework Directive.) There is a further child specific difficulty in affording the protection intended to children namely that children by reason of age and understanding do not readily identify the denial of their rights in enforceable legal terms nor do they as a matter of course seek professional legal advice in the way adults do. Consequently it is essential that the Equality Commission and NGO’s have the capacity to take cases under the Single Equality Order in their own name. Failure to empower them to do so will result in the Single Equality Bill not providing the protection anticipated for children and young people.

We recommend that the Single Equality Bill should apply across all categories to all public authorities /all organisations carrying out public sector functions including those which constitute reserved and exempted matters under the NI Act 1998.

EXEMPTIONS

We strongly disagree with the proposal that discrimination on the grounds of age in relation to goods, facilities and services should be limited to 18+. As we have stated above, we believe that this would be a serious mistake, non compliant with the United Nations Convention on the Rights of the Child, represent a breach of the requirement on the State to provide protection for children’s rights and could potentially be in breach of the Human Rights Act 1998.

We do not think that many of the exemptions listed on page 37 can be objectively justified. In particular we believe that it would be essential that education is covered by the goods, facilities and services provisions.

We would be strongly opposed to any blanket exemptions such as “goods or services reasonably regarded as being suitable only to the needs of persons of a particular age”. We would suggest general principles should be developed in respect of exemptions with a number of examples. Exemptions should be strictly limited.

DISCRIMINATION

We recommend that the definition of direct and indirect discrimination should be, for all categories, the same as the wording in the submission made by the Bill of Rights Equality Working Group to the Human Rights Commissions.

POSITIVE ACTION

A strong positive action clause covering all categories is essential to ensure children and young people who currently experience disadvantage through discriminatory practices are specifically advantaged thereby compensating for specific disadvantage or current discrimination. Such positive action provisions and measures should enjoy exemption under the Single Equality legislation.

A statutory equality duty with an associated duty to register and monitor, should be contained in the Single Equality Legislation.

Monitoring by public authorities of all nine categories under section 75 is currently required in any event for purposes of impact assessments. The outcomes of impact assessments should be linked to a positive action requirement in the Single Equality Bill. This again is of particular importance in the mapping of services for children and young people ie in order to promote equality of outcome in terms of equality of access to services. An example of this could be where an impact assessment has indicated that a policy in relation to the provision of residential and foster placements has impacted negatively on Traveller children. Positive action is required to address this disadvantage.

STRUCTURES

We would recommend that there is a “one stop shop” with recourse to appeal in relation to the hearing of cases under the Single Equality Act. The current system can be confusing in relation to the dual routes of Tribunal or County Court. It is also unfair in that legal aid is available for County Court hearings, but not for Tribunal hearings.

We have dealt with several cases on behalf of young people under 18 under the sex discrimination legislation and employment legislation. One of the matters which we believe needs to be addressed is the accessibility of the system to children and young people, one third of our population, who are unlikely to be able to advocate on their own behalf and who inevitably will be reluctant to give evidence.

We believe that if the structure of the system is overhauled, it would be important to introduce Guidance and Regulation in relation to the Tribunal/Court procedure for children and young people under 18,which would deal with matters concerning representation, participation and understanding, court environment, appropriate waiting areas and giving evidence. This will ensure that children and young people are accorded a fair hearing in accordance with Article 6 ECHR and that Article 12 UNCRC is implemented. All children and young people who are involved in advocacy flowing from the Single Equality Legislation should be entitled to free independent legal representation. Failure to so provide excludes them from enjoying the protection of the legislation and would inevitably lead to a breach of Art6 ECHR.

Christine Scott

Single Equality Bill Unit
OFMDFM
Free Post 3900
BELFAST
BT4 3BR

20 August 2001

Dear Ms Scott

Re: Single Equality Bill Consultation

Please find enclosed the Children's Law Centre’s response to the Initial Consultation document on the Single Equality Bill. If you have any queries in respect of our submission please do not hesitate to contact me or Tara Caul, Head of Legal Unit.

I note this consultation document is available in a number of different languages, which we are glad to see. I note however that there is no reference to a child/young person friendly version. I would be interested to receive the child and young person friendly version to enable the Children's Law Centre to consult with our members.

As children and young people are probably the largest single group who will be impacted upon by this new legislation we are anxious that their voices are heard in this crucial debate. Further I would draw it to your attention that failure to produce a child friendly version effectively excludes one third of our population from participating in this consultation process, fails to comply with s75 and is in breach of Art12 of the United Nations Convention on the Rights of the Child.

I look forward to hearing from you and receiving the child friendly version at your earliest convenience.

Yours sincerely

Paddy Kelly

DIRECTOR