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Response to the Office of the First and Deputy First Ministers Consultation on Proposals to Outlaw Sexual Orientation Discrimination in the Provision of Goods and Services Childrens Law Centre September 2006 Contents Introduction 3 Consultation and Section 75 of the Northern Ireland Act 1998 3 International Standards 5 United Nations Convention on the Rights of the Child 5 European Convention on Human Rights 8 General Comments 8 Harassment 8 Teaching in Schools 11 Religious Organisations 12 Public Functions 12 Other Issues ` 12 Conclusion 13 Appendix 1 14 Introduction The Childrens 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 childrens 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 (UNCRC), in particular: Children shall not be discriminated against and shall have equal access to protection. All decisions taken which affect childrens lives should be taken in the childs 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 Office of the First and Deputy First Ministers (OFMDFM) Consultation on Proposals to Outlaw Sexual Orientation Discrimination in the Provision of Goods and Services. We wish to state our support at the outset for the introduction of Regulations to outlaw sexual orientation discrimination in goods, facilities and services. It is vital that the highest level of protection is afforded against discrimination on grounds of sexual orientation and that the Regulations are as robust as possible. This response should be read in conjunction with the Childrens Law Centres response to A Single Equality Bill for Northern Ireland which was submitted to OFMDFM in November 2004. A copy of this response is attached at Appendix 1 of this response for ease of reference. Consultation and Section 75 of the Northern Ireland Act 1998 The Childrens 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. We are firmly committed to the effective operation of the section 75 equality duty and have 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 also wish to highlight the fact that children are not a homogenous group and will be afforded further protection under section 75. Most relevant to this consultation exercise is protection on grounds of sexual orientation. In order to ensure that OFMDFM is affording children and young people in Northern Ireland their statutory protection under section 75, it is vital that OFMDFM carries out a comprehensive equality impact assessment on the proposals to introduce Regulations to outlaw sexual orientation discrimination in goods, facilities and services. The equality impact assessment included as part of the proposals to introduce Regulations to outlaw sexual orientation discrimination in goods, facilities and services is in our view far from comprehensive. It is extremely disappointing to note the lack of disaggregated data which exists in relation to sexual orientation. Section 75 of the Northern Ireland Act 1998 has been in operation for six years now, yet it is claimed in the consultation document that there is a general lack of quantitative data on sexual orientation in Northern Ireland because of sensitivities around the collection of this information. (Page 81) We believe that the collection of such information is no more sensitive than the collection of information relating to a childs religion or race and having had discussions with representatives of groups working primarily in the area of sexual orientation, it would appear that the sensitivities are the sensitivities of Government, rather than lesbian, gay and bisexual people. We wish to see information on sexual orientation being collected as a matter of urgency as without such information, the impact of any policy or legislative development can never be assessed in terms of the need to promote equality of opportunity. In addition to the need to collect such data to monitor the effectiveness of section 75, this is an issue in respect of which the UNCRC Committee has been explicit and has repeatedly highlighted the fact that as children have differing experiences and multiple identities, Governments must collect reliable disaggregated data. It is widely accepted that the statistics produced in relation to children accessing their rights in Northern Ireland are limited and that those produced cross different parameters, timescales and ages. The UNCRC Committees General Comment No 5 stresses that, ...sufficient and reliable data collection on children, disaggregated to enable identification of discrimination and/or disparities in the realisation of rights is essential. (CRC/GC/2003/5 para. 48) Reporting guidelines for periodic reports point out that quantitative information should indicate variations between geographical areas and between groups of children. In its 2002 concluding observations the UNCRC Committee recommended that the UK establish a nationwide system whereby disaggregated data are collected on all persons under 18 years of age for all areas covered by the UNCRC and that these data be used to assess policies and progress to implement the UNCRC. (CRC/C/Add.188. para 49) The Committee also recommended that the Government monitor the situation of a number of groups of children who are exposed to discrimination and the comparative enjoyment by children of their rights across Northern Ireland, England, Wales and Scotland with data collection as central to this monitoring. (CRC/C/Add.188. para 22a and b) We do not believe that it is sufficient to state at this stage in the operation of section 75 and given the above obligations imposed by the UNCRC that no sources of data exist about sexual orientation in Northern Ireland. It is imperative that such data is collated as a matter of urgency to ensure that the proposals to introduce Regulations to outlaw sexual orientation discrimination in goods, facilities and services have a positive impact on the promotion of equality of opportunity between members of all of the nine categories and where this is not the case, it is easily identifiable and remedial action can be taken immediately. We are aware of research and data in existence in Northern Ireland, such as the data relied upon in this response. None of this was referred to in the equality impact assessment which was carried out by OFMDFM. We would be firmly supportive of the OFMDFM carrying out a more meaningful equality impact assessment on the proposals to outlaw sexual orientation in goods, facilities and services generally and as they relate to children and young people. All available research and data should be drawn upon in an effort to tell us something about the likely impact of the proposals to outlaw sexual orientation in goods, facilities and services on members of all of the nine equality categories. A meaningful equality impact assessment should also involve direct consultation with children and young people as one of the groups who will be impacted upon most by the introduction of the new regulations as per the section 75 statutory equality duty. Such consultation is essential not only in ensuring compliance with section 75 in Northern Ireland, 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, stating that, ...the Committee is concerned that the obligations of article12 have not been consistently incorporated in legislation.... The Committee notes that groups of children in the State party expressed their feelings that their views are duly taken into consideration. (Para 29,  FILLIN "Symbol" \* MERGEFORMAT CRC/C/15/Add.188) We would be grateful if you would provide us with details of how you have consulted directly with children and young people as one of the groups most likely to be affected by the introduction of Regulations to outlaw sexual orientation discrimination in goods, facilities and services. We would also be grateful if you would forward copies of your child accessible format of this document for our own consultation with our youth group youth@clc and also be grateful if you would also respond with details of the system which you intend to use to analyse responses to this consultation process including the degree of weight which will be attributed to both individual and organisational responses. This is a vital element to drawing conclusions from responses and progressing with identified areas for immediate action. For this reason, we would appreciate information both on the system itself and on its operation for the purposes of analysis. We would expect comprehensive consultation to take place on the Regulations themselves and wish to be informed of the timetable for this consultation exercise as well as any planned consultation with children and young people as per OFMDFMs statutory obligations under section 75 of the Northern Ireland Act 1998 and international obligations under Article 12 of the UNCRC. We wish to make a further response on the Regulations and would appreciate to be further consulted in line with OFMDFMs planned timetable for the introduction of the Regulations. International Standards United Nations Convention in the Rights of the Child As stated in the Introduction our organisation is founded on the principles contained in the UNCRC and our response to this consultation is set in the context of the rights and obligations contained in that Convention which must be given due weight. The Convention is a set of non-negotiable and legally binding minimum standards and obligations in respect of all aspects of childrens lives which the Government has ratified The UNCRC Committee has recognised that the UNCRC is comprised of general principles with broad-ranging implications. In this regard, it has encouraged State parties to include in their educational policies and legislation a clear commitment to using the Conventions principles on the right to education to inform educational policies. The Government should ensure that the UNCRC underpins and forms the basis for all educational policies across the UK. 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 childs 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) 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), State parties 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 childs parents, guardians or family members. Similarly, Article 1 of the United Nations Educational, Scientific and Cultural Organisation(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 light of this, any distinction or preference in the provision of education in schools in Northern Ireland would be 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. Article 28 paragraph 1 of the UNCRC provides that every State party recognises the right of the child to education and states, States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (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 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 childs 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 childs 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 childs 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 Committees 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 childs 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 childs right to education. For example, discriminatory practices are in direct contradiction of the requirements in Article 29(1)(a) that education be directed to, ...the development of the childs personality, talents and mental and physical abilities to their fullest potential. In addition to the obvious relevance of Articles 2, 12, 28 and 29 of the Convention, the remaining two principles are also central, Articles 3 the best interests of the child and 6 survival and development to maximum potential. In order to comply with these principles, the Government must ensure that the protection against sexual orientation discrimination offered to LGB children and young people is as robust and comprehensive as possible in order ensure that the childs best interests are central and also to guarantee the survival and maximum development of LGB children and young people. European Convention on Human Rights 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. General Comments As stated in our introduction CLC welcomes the proposal to extend the legal protection against discrimination on grounds of sexual orientation to goods and services, education and housing in line with the other discrimination statutes. We know from our experience that many LGB children and young people in Northern Ireland experience discrimination on grounds of their sexual orientation in various aspects of their lives, most notably in education. In whatever circumstances or whatever the nature of that discrimination, there is now clear evidence that the negative effects of those experiences remain with children and young people for a long time and very often for life. CLC recognizes the importance of avoiding the creation of a hierarchy of equality rights and obligations. In our responses to the earlier consultations on a Single Equality Act for Northern Ireland we therefore advocated for a comprehensive and consistent approach to protection from discrimination across all of the discrimination strands that reflects the highest standards of protection in relation to all aspects of the lives of children and young people. We also take this opportunity to re-iterate the general principle that if laws are to be effective in tackling inequality and discrimination any exceptions to the equality principle must be narrowly drawn . Whilst the consultation raises many broad issues in relation to sexual orientation discrimination and goods, facilities and services, the Childrens Law Centre in this response will focus on the issues raised in the document that we believe are of particular relevance to lesbian, gay and bisexual children and young people. Harassment We believe that homophobic harassment/bullying the most common form of discrimination experienced by LGB children and young people. We know that it is widespread in schools and other social settings and that it is difficult for the young person who is the victim of such treatment to challenge. In many cases such harassment/bullying results in feelings of exclusion and low self esteem and has very serious implications for physical and mental health and personal and social development. It can negatively impact on school attendance and educational attainment. Many of the negative effects of homophobic bullying in childhood or adolescence are carried through into adult life. Therefore one of our most serious concerns in relation to the proposals is that they do not aim to expressly outlaw harassment beyond the employment sphere (paras. 4.13-4.15) We believe that this will hugely undermine the Regulations. In addition, homophobic harassment/bullying in schools is clearly in breach of Articles 2,3,6,12, 28 and 29 of the UNCRC, the UNESCO Convention Against Discrimination in Education and Article 2 Protocol 1 read in conjunction with Article 14 of the ECHR. In our experience, through complaints received on the Childrens Law Centre CHALKY helpline, research and work with youth@clc, homophobic harassment/bullying is a widespread problem in society at large. Although CLC considers harassment wherever it occurs to be unacceptable and a clear violation of human right principles the issue has received a very particular focus in relation to education. The UNCRC Committee expressed its concern at widespread bullying in schools in its concluding observations in 2002 and stated that the UK Government should, (a) Ensure that legislation throughout the State party reflects article 12 and respects childrens rights to express their views and have them given due weight in all matters concerning their education, including school discipline... (c) Take all necessary measures to eliminate the inequalities in educational achievement and in exclusion rates between children from different groups and to guarantee all children an appropriate quality education... (e) Take measures and set up adequate mechanisms and structures to prevent bullying and other forms of violence in schools and include children in the development and implementation of these strategies, in light of the Committees recommendations adopted at its day of general discussion on violence against children within the family and in schools; (f) Taking into consideration the Committees General Comment No. 1 on the aims of education, include the Convention and human rights education in the curricula in all primary and secondary schools and teacher training. (Para 48,  FILLIN "Symbol" \* MERGEFORMAT CRC/C/15/Add.188) Unless an express prohibition on harassment is included in the Regulations there will be serious implications on education provision in terms of the negative effects of homophobic bullying on educational experience, having the effect of denying a young person the right to an effective education. By failing to legislate expressly on this issue in relation to education it is strongly arguable that the Government will be in breach of its obligations under the Human Rights Act 1998. Our experience is borne out by the findings of research commissioned by the Department of Education Northern Ireland and carried out by YouthNet into the needs of young people under 25 in Northern Ireland who identify themselves as LGBT. The research included a 15 page questionnaire which was completed by 362 young people through youth, community and gay organisations and focus groups, involving 25 young people. The research found that 86% of respondents were aware of their sexual orientation while at school and 44% of respondents indicated that they been bullied at school directly because of their sexual orientation. 63% of the sample stated that they had suffered negative experiences around their sexuality. Their perceived sexuality also meant that 33% believed that they achieved lower results, one quarter of young people truanted with 15% actually dropping out and 9% changing school. The impact of bullying is stark in that those who stated they had been bullied also made up 69% of those who said that they left school earlier than they would have preferred and 65% of those who believed that they had achieved lower results. Typical experiences relayed in the research by young people who identify themselves as LGBT include, I left school early and moved to tec. (technical college) I was bullied from 1st to 4th year. I had to leave. I didnt come out at school, but people said I was gay. I didnt really understand what gay was. Teachers would say: Dont be such a sissy / girl to me too. When I was in school in my last year, I contemplated telling people but someone would make a derogatory remark about queers and I would keep quiet The research also found that young people who identified themselves as LGBT were at least three times more likely to attempt suicide and two and a half times more likely to self harm. They were five times more likely to be medicated for depression and twenty times more likely to suffer from an eating disorder than their heterosexual counterparts. (shOUT Report, Youthnet 2003) It is very apparent that harassment/bullying are extremely serious issues for LGB children and young people, with grave consequences if not addressed and outlawed. In light of the evidence above failure to expressly legislate to outlaw this type of behaviour will totally undermine the effectiveness of the Regulations and potentially engage Articles 2 the right to life and 3 the right to be protected from torture, inhuman or degrading treatment or punishment of the European Convention on Human Rights as incorporated by the Human Rights Act 1998. We would urge the OFMDFM to review its position and expressly prohibit harassment on grounds of sexual orientation. OFMDFM should seize this opportunity to send out a clear signal that such conduct will not be tolerated and provide very necessary effective protection to this extremely vulnerable group of children and young people as a matter of urgency. Not only does the failure to legislate on the issue of harassment have serious implications for the Governments international Treaty obligations but it will also result in anomalies and inconsistencies in the domestic equality framework. Regulation 5 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 and the equivalent GB regulations contain an express prohibition on harassment. Those Regulations outlaw harassment in employment and vocational training including Further Education Colleges. This is an unacceptable position when one considers that children and young people of the same age accessing the same services are precluded in schools from protection against harassment in education which is afforded to their peers in further education colleges. It is vital that children and young people have an equal right to protection from discrimination in all aspects of their lives. The Childrens Law Centre considers that the definition of harassment contained in Regulation 5 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 could form the basis of a definition in the new Regulations. There is a precedent for this approach in the Race Relations (Northern Ireland) Order 1997 where the new definition of harassment in Article 4A extends to the provision of services, and education. We do not accept that there are particular difficulties in relation to harassment on grounds of sexual orientation that would justify a delay in legislating in this point. If an express prohibition on sexual orientation harassment were to be included in the Regulations it would still be a matter for the courts to decide whether particular conduct in a given case comes within any express definition of harassment. This is currently the position in relation to employment and vocational training as regards sexual orientation and across the other discrimination jurisdictions. In relation to bullying, we are very concerned to note that behaviour of pupils towards each other, ...will not be caught directly by this legislation (para 3.30). As the consultation document points out, Head Teachers already have a legal duty to take measures to prevent all forms of bullying among pupils (para. 3.29). Schools are already potentially vulnerable to a common law action where they fail in their duty of care to a pupil who is injured by another pupil. It therefore seems appropriate to us that in the interests of consistency that this approach should also be reflected in any new Regulations. Schools should be vicariously liable under the Regulations for the discriminatory actions in the school setting of another pupil unless they take such steps as are reasonably practicable to prevent it. There already exists a model for this approach in the Equal Status Acts in the Republic of Ireland. This vicarious liability approach should not just, however, be limited to harassment but should extend to other forms of discrimination rendered unlawful by the Regulations. Teaching in Schools We note that the consultation document states that OFMDFM intends to give consideration to whether teaching in schools should be covered by the Regulations (para. 3.31). The Childrens Law Centre believes that it is extremely important that teaching in schools is covered by the Regulations to ensure that teaching around sexual orientation and homosexuality is delivered in a positive and respectful way. Failure to include teaching in schools within the Regulations gives scope for schools to teach about homosexuality and issues around sexual orientation in a negative manner, thus labelling individual children and young people in a negative way and teaching heterosexual children and young people that homosexuality is something to be viewed negatively. The potential to create an environment where LGB children and young people are bullied as a direct result of their sexual orientation in such circumstances is great. Again, there are also serious compliance issues in relation to Articles 2,3,6,12,28 and 29 of the UNCRC, the UNESCO Convention Against Discrimination in Schools and Article 2 Protocol 1 read in conjunction with Article 14 of the ECHR (above). All teachers have a legal duty of care to pupils to protect them from bullying and to foster education in a safe environment. The consultation document makes reference to the recent White Paper Guidance, Dont Suffer in Silence 2000 which states very clearly the duties of both teaching and non-teaching staff. An exclusion of teaching in schools from the Regulations, we believe, may be in conflict with the well established legal duties which teachers are under in educating children and young people. Fostering an environment in schools where messages in relation to homosexuality are negative may have a whole range of detrimental consequences for individual pupils who identify themselves as LGB. An exception to teaching in schools in the Regulations will only serve to undermine the duty of care which all teachers are bound by to all pupils. There should be no scope for the dilution of the obligations which teachers are under in educating children and young people. The shOUT Report by Youthnet (2003) illustrates the need to include teaching in schools in the Regulations and states that, teachers reinforced the idea that homosexuals were second class citizens, perverted, wrong and would burn in hell, One respondent stated that, Teachers had more of a problem than pupils. Teachers would talk/gossip about it, even in the corridors, and allowed verbal abuse directed towards me by other pupils, even in front of them. The school also made it clear to me that my sexual orientation was abnormal and not to be talked about in school. It is clearly illustrated above (shout; Youthnet 2003) how teachers can play a vital part in the messages which are delivered in schools in relation to sexual orientation. To exclude teaching in schools from the Regulations gives continued scope for teachers to impart negative messages which will have very damaging implications for LGB pupils. It is difficult to imagine in such circumstances how teaching can be termed as meeting the needs of all young people whatever their developing sexuality. Teaching in schools must be included in the Regulations to ensure a consistent approach to curriculum development also. There is a very welcome shift in the curriculum with the introduction of citizenship in schools with an emphasis on diversity and respect. This should be consistently applied throughout schools and the inclusion of teaching in schools in the Regulations would be an affirmation of the Governments continuing commitment to valuing difference and respect in all aspects of education. Religious Organisations We believe that the scope of the Regulations should be as wide as possible and wish to see any exception from the scope of the Regulations in relation to religion relating only to core doctrinal matters. Any such exception should be extremely narrowly defined and objectively justified on a case by case basis. Public Functions The prohibition of discrimination on grounds of sexual orientation in the exercise of public functions is necessary in order to provide comprehensive protection against discrimination in the delivery of public functions, such as policymaking, decision-making, administrative functions and, where not already covered, service delivery. Such an approach is in the view of CLC essential to underpin and compliment the existing statutory duty under section 75 of the Northern Ireland Act 1998. A prohibition on discrimination in public functions has already been enacted in Northern Ireland in relation to race and gender and will shortly be brought into force in relation to disability. We can see no reason why such a prohibition should not similarly be extended to discrimination on grounds of sexual orientation. We note that under the Equality Act 2006 the public functions prohibition has also been extended to religion and belief in GB. Other Issues Although the format of our response does not follow the sequence of questions posed at pages 14 -16 of the consultation document our answers to the majority of those questions, with the exception of the matters referred to below, are incorporated in the preceding comments and observations. Exemption so that services to meet a specific and justified need can be provided separately on the grounds of sexual orientation (Question 3) In our General Comments above we stated that in principle any exceptions should be narrowly drawn. However CLC recognises that there may be specific circumstances in which services should be limited to people of a particular sexual orientation but this should only happen on the basis of a strictly justifiable need e.g. welfare, health and perhaps training(in some circumstances. Discriminatory practices (Question 16) The power to challenge discriminatory practices is particularly important in the context of discrimination on grounds of sexual orientation where individuals for reasons of privacy or fear of harassment may be reluctant to disclose their sexual identity. The Childrens Law Centre therefore agrees that, in common with the other discrimination strands, discriminatory practices should be outlawed and should be challengeable by, in the case of Northern Ireland, the Equality Commission for Northern Ireland. Discriminatory advertising (Question 17) The Childrens Law Centre recognises that the advertising media has a particularly powerful influence in relation to shaping attitudes and therefore considers that in common with the other discrimination strands advertising that discriminates either directly or indirectly on grounds of sexual orientation should be prohibited. Instructions to discriminate (Question 18) The Childrens Law Centre agrees that the act of instructing another to discriminate should be rendered unlawful under the new Regulations. Such actions are already unlawful under the other discrimination strands. However no such prohibition is contained in the existing Employment Equality (Sexual orientation) Regulations (Northern Ireland) 2003. In the interests of consistency and effectiveness between the two sets of Regulations that will deal with discrimination on grounds of sexual orientation the 2003 Regulations should also be amended to include a prohibition on instructions to discriminate. Conclusion The Childrens Law Centre is grateful to have the opportunity to comment on OFMDFMs consultation. We hope that our comments have been constructive and useful to OFMDFM and are more than happy to speak with Departmental staff to discuss anything in this response. We wish to be kept informed of progress in the development of the proposals and look forward to the issues raised in this response being addressed, taken forward by OFMDFM and hearing from OFMDFM in the near future. Appendix 1 Childrens Law Centres Response to the Consultation on A Single Equality Bill for Northern Ireland which was submitted to OFMDFM in November 2004. INTRODUCTION The Childrens Law Centre was established in 1997. It is an independent non-governmental organization working to protect, promote and realise childrens 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 childrens lives should be taken in the childs best interest. Children have the right o have their voices heard in all matters concerning them. The Childrens 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 childrens rights; 3) Provide a comprehensive and accessible advice service on childrens 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 childrens rights legislation. The Childrens 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 childrens 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 Childrens Rights Framework We would urge government to ensure that the new legislative framework has at its core childrens 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/ Childrens 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 childrens 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 childs or his or her parents or legal guardians 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 childs 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 partys commitment to end discrimination in the State partys 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 childrens 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 Childrens 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 childrens rights framework set out above and that childrens 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 childrens rights standards in the legislation and specific provisions in the legislation relating to the conduct of childrens 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 childrens rights indicators and childrens 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 Commissions 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 childrens 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 Childrens 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 CVs. 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 Childrens 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 Bs 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 Childrens 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 childrens 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 childrens 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 Commissions 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 childrens cases, specialised training for advocates and tribunal staff and adjudicators and facilities which are designed for hearing childrens 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 childrens 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. 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