15 Asks for the Executive - Focus on Age Discrimination Legislation
In this series of articles we take each 'ask' and explore them in greater details.
This week we are focusing on number 5 "Implement the age discrimination in goods and services legislation," with articles written by Natalie Whelehan from Children's Law Centre and Duane Farrell from Age NI.
Extending Goods, Facilities and Services Legislation
The NI Executive pledged in its Programme for Government to ‘extend age discrimination legislation to provision of goods, facilities and services’ within the lifetime of this administration.
Age is the only ground where it is still legal to discriminate in accessing goods, facilities and services in Northern Ireland. Age NI was delighted to see our Government commit to end the unfair anomaly by introducing a law by May 2016 which would deliver the same protections which already exists on grounds of gender, race, disability, religious beliefs, political opinion and sexual orientation.
For more than a decade we have worked with older people on this issue – older people who have told us that they are subjected to ageism and age discrimination every day in Northern Ireland in areas such as accessing health services, financial services, facilities for transport or travel, or retail services, and these experiences are supported by a body of evidence.
Despite this commitment and demonstrated need, and despite the clear public and political support for this legislation, it is of deep concern that we are over three years into the Programme for Government and there is still no sign of any new age discrimination law.
CALL TO ACTION
Age NI urgently asks you to join us in calling for extension of age discrimination legislation:
Write a letter or email to OFMdFM calling on them to deliver the Programme for Government commitment to ‘extend age discrimination legislation to provision of goods, facilities and services’ within the lifetime of this Assembly.
Write, email, tweet send message via twitter to your local MLAs calling on them to deliver the Programme for Government commitment to ‘extend age discrimination legislation to provision of goods, facilities and services’ within the lifetime of this Assembly. You can find contact details of your local MLAs here: www.niassembly.gov.uk/your-mlas/
Making the Case for the Inclusion of Children and Young People in Age Discrimination Goods Facilities and Services legislation in Northern Ireland
The Children’s Law Centre (CLC) is an independent children’s rights organisation which is founded on the United Nations Convention on the Rights of the Child (UNCRC), in particular the principles of the Convention that children shall not be discriminated against and have equal access to protection (Article 2), decisions taken which affect children’s lives should be in the child’s best interests (Article 3) and children have the right to have their voices heard in all matters concerning them (Article 12). The UNCRC is a set of legally binding obligations in respect of all aspects of children’s lives which the UK Government has ratified and therefore has given a commitment to deliver upon.
The Programme for Government outlines the Government’s intention to introduce legislation to protect against discrimination on grounds of age in accessing goods, facilities and services. This is a commitment we very much welcome and wish to see legislation being brought forward without delay which affords robust protections to all, including children and young people. There has been a great deal of debate about whether the legislation should include children and young people within its scope, something which we feel very strongly that it should. It would be extremely regrettable if age discrimination legislation was introduced in Northern Ireland which in itself discriminates on the basis of age. CLC believes that the exclusion of children and young people from age discrimination legislation is a clear breach of the Government’s obligations under the UNCRC, is incompatible with the equality obligations under section 75 of the Northern Ireland Act 1998 which include age as one of its grounds and will entrench a hierarchy of inequalities, with children and young people at the bottom.
Protection from discrimination is a fundamental human right. None of the human rights treaties include a minimum age requirement for protection from discrimination in the exercise of rights. In October 2008, the UN Committee on the Rights of the Child urged the UK Government to take urgent action to address negative age discrimination against children and to mainstream the child’s right to non-discrimination through protecting children under anti-discrimination law. Children and young people are already protected from discrimination when accessing goods, facilities and services in Northern Ireland on a number of grounds including sex, sexual orientation, religious belief or political opinion, race and disability and we do not believe that there is any justification for the exclusion of under 18s from the scope of the age discrimination legislation. Also, Article 14, of the European Convention on Human Rights as incorporated by the Human Rights Act 1998, the right to protection from discrimination in the enjoyment of all of the other Convention rights, does not place an age range on protection from discrimination as the Convention rights apply to everyone, regardless of their age. The protection from discrimination under Article 14 covers, ‘other status’ which explicitly includes protection from discrimination on the basis of age. CLC believes that the proposed exclusion of children and young people from the scope of age discrimination legislation is in breach of the Government’s obligations under the European Convention on Human Rights.
All children and young people in Northern Ireland have the right to be treated fairly and to have equal access to goods, facilities and services, regardless of their age. There are a great number of examples of age discrimination being suffered by children and young people. Many of these examples have already been provided to Government. We are not aware of evidence of age discrimination being sought by Government in relation to any other group in society, who will be automatically covered under the new legislative proposals simply because they are adults. This in itself is age discrimination – no other group in society has to argue for and prove their eligibility to access fundamental human rights. A failure to protect children and young people from age discrimination in accessing goods, facilities and services significantly undermines children and young people as autonomous rights holders and communicates that they are not equal members of society, are less deserving of protection and can be discriminated against without sanction.
The proposed legislation would prohibit age discrimination in the provision of goods, facilities and services, such as the provision of health and social care services, retail services or public transport. The introduction of legislation such as this would allow children and young people to make a complaint before the courts of discrimination where they believe that they have, without justification, been treated unfairly in receiving an inferior service simply because of their age. Areas of potential unequal treatment could include children being unable to access vital education support services which are restricted to certain age groups, children being refused access to shops without justification, the indiscriminate use of mosquito devices, or difficulties in accessing age appropriate health services, such as mental health services. CLC also believes that the protection of children within age discrimination legislation would place an onus on the Government to ensure proportionate funding is allocated to children’s services which is not the case in many areas at present with many very vulnerable children and young people suffering as a result.
It is CLC’s legal opinion that the age discrimination goods, facilities and services legislation could be drafted to ensure that any age limits already in place in other pieces of legislation would not be affected by these proposals. Under 18s are protected from age discrimination in accessing goods, facilities and services in Australia, Belgium and Canada and the legislation in these countries is working. Concern has been expressed that to include children and young people within the scope of the Age Discrimination legislation would result in parental rights being undermined. There is no evidence base for this argument and indeed it is our view and experience that parents are extremely supportive of their children having protection from all forms of discrimination, particularly in accessing services within health and education. We are also aware that the draft European Commission Directive on the provision of goods and services 2008 proposed to ban discrimination on a number of grounds including age. Discussions and negations are ongoing regarding this Directive and there is no agreed date for adoption. However, the draft Directive illustrates clearly the intention of the European Commission with regard to the need for children and young people to be protected in accessing goods, facilities and services. If this Directive is adopted, the UK Government and its devolved administrations will be required to extend its legal framework to address age discrimination in goods, facilities and services to children and young people within 2 years of adoption. CLC would therefore urge the Government in Northern Ireland to now bring forward robust age discrimination legislation which applies to all in Northern Ireland, regardless of their age.
Concluding Observations on the United Kingdom of Great Britain and Northern Ireland. CRC/C/GBR/CO/4. Paragraphs 24 and 25.
 Article 14 of the ECHR prohibits discrimination with respect to rights under the Convention, i.e. an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention, such as the right to education, a fair trial, the right to protection from torture, inhuman or degrading treatment, the right to life, the right to respect for privacy and family life, freedom of expression and freedom of assembly and association etc.
 BB v UK (2004)
 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, 2008/0140 (CNS)