Official Report: Minutes of Evidence

The Chairperson (Ms Sheerin): Michael is from the Assembly's Research and Information Service (RaISe), and he is online. Do you want to begin, Michael?

Dr Michael Potter (Northern Ireland Assembly): That is great. Thank you, Chair. Can you hear me OK?

The Chairperson (Ms Sheerin): We can.

Dr Potter: Great. The paper looks at two aspects of the particular circumstances of Northern Ireland: the "particular circumstances" as envisaged in the 1998 agreement; and the particularity of Northern Ireland that has come into sharp focus following the UK's decision to leave the EU. I will briefly summarise those in turn.

First, there have been differing interpretations of what constitute particular circumstances in the context of the 1998 agreement. The Bill of Rights Forum was divided over the definition of particular circumstances: primarily, should they relate only to the conflict of any of particularity; or how particular do they need to be? The forum chair, Chris Sidoti, suggested that there is a difference between what is particular and what is unique to Northern Ireland. He reiterated what is set out in the agreement in relation to particular circumstances. He set out five principles: equality; mutual respect; protection of civil, political, social, economic and cultural rights; a culture of tolerance; and non-violence. He also set out eight specific rights that he said were contained in the agreement, and those are listed in the paper on page 4. Sidoti also listed some general references in the agreement that have a human rights basis, and those 12 references are also listed in the paper.

The second general interpretation or approach was by the Human Rights Commission in its advice to the Secretary of State on a bill of rights. It employed a specific formula for the consideration of what would be particular circumstances. First, has a right been abused, neglected or restricted here differently from elsewhere in the UK? Is that right related to an area that has been a location of conflict between the two main communities? Is there concern that that right may be violated in the future? Is that right necessary or beneficial in enhancing mutual respect or parity of esteem? Does the right relate to one of the issues for consideration listed in the agreement? Does the right relate to one of those affirmed in the agreement? Finally, has it been otherwise referred to in the agreement? Appendix 1 of the paper lists those proposals in the advice.

The UK Government response rested on particular circumstances being demonstrably greater or more different in nature than elsewhere in the UK. Appendix 2 in the paper gives the UK Government response to the commission's advice. The responses to each of the points are given there, as well as an explanation of them.

The debate has raised a number of fundamental questions, the first of which is this: how particular do the circumstances need to be to be included? Are they to be just conflict-related or can others be considered as well, such as, for example, Ireland's status, rurality, and social and economic conditions? Thirdly, where is the comparator? Where do they have to be particular in comparison with? Is it the United Kingdom or the island of Ireland, or can there be differences between different locations in Northern Ireland? Where is that comparator? How is the particularity to be measured? So, what are the indicators of what you want to have as particular? Finally, are rights the most appropriate approach to address those issues? That summarises the general approaches to particular circumstances derived from the 1998 agreement, probably as envisaged at the time.

Circumstances that would not necessarily have been known at the time are those relating to the UK's decision to leave the EU, which has placed into sharp focus areas in which Northern Ireland is, indeed, particular. The paper does not make any assertions in relation to additional circumstances to be taken into account or in relation to any specific rights for a bill of rights, but it raises some considerations that the current circumstances have highlighted. Likewise, the paper is not intended to discuss in detail the impacts of withdrawal on Northern Ireland other than to raise some general areas of particularity.

The first area is the constitutional position of Northern Ireland. A majority of the UK voted to leave the EU in the referendum, but a majority of people in Northern Ireland voted to remain. In 2017, the UK Supreme Court ruled that the withdrawal from the EU of Northern Ireland with the rest of the UK was not a breach of the 1998 agreement in relation to the right to determine the constitutional status of Northern Ireland.

The second area is identity. In an appeal in the Upper Tribunal in 2019, it was stated that there was a presumption of British citizenship in Northern Ireland whereas Irish citizenship has to be asserted. The 1998 agreement recognises that it is the birthright of all the people of Northern Ireland to identify themselves and be accepted as British or Irish. The immigration rules were subsequently amended to provide for immigration status to be available to family members of all the people of Northern Ireland, but, as of now, the British Nationality Act 1981 remains unchanged.

The third area is freedom of movement. Following withdrawal, Northern Ireland will be the only part of the UK that has a land border with the EU. The Northern Ireland protocol guarantees the maintenance of the common travel area. However, the final arrangements for the movement of goods between the UK and the EU have not yet been agreed, so the extent to which free movement can be maintained under these circumstances is unclear.

The final area is EU human rights standards. The protocol states that there will be "no diminution of rights" in Northern Ireland following withdrawal. Appendix 3 of the paper lists the EU equal treatment directives, the provisions of which will remain in effect after withdrawal. That raises a question as to whether Northern Ireland will be kept in step with future developments in the EU. The Equality Commission and the Human Rights Commission have been appointed as a monitoring mechanism to ensure that there is no diminution of rights. The Human Rights Commission stated to the Committee for the Executive Office that assurances have been given by the UK Government that standards would indeed keep in step with future developments in the EU, but it is unclear how that might be maintained over the longer term.

That was a brief summary of the paper. Do you have any questions?

The Chairperson (Ms Sheerin): Thank you very much, Dr Potter. That was useful, as was the written presentation that you provided. I want to ask some general questions. You talked about the impact of Brexit on the particular circumstances and the question of whether that changes the constitutional position. The 2017 UK ruling says that it does not, but there are people who feel that it does. How do you interpret removal from the EU having an impact on the particular circumstances of the North? What we are discussing is set out in 'New Decade, New Approach' (NDNA).

Dr Potter: Um.

The Chairperson (Ms Sheerin): You have said it all.

Dr Potter: Yes, I probably said it all in the presentation, and it is in the paper. There are the four main areas that I identified. At this point, I would probably not add any to that.

The Chairperson (Ms Sheerin): OK. Have you any ideas as to how, in a bill of rights, we could address the gaps?

Dr Potter: The paper is specific in saying that it is not talking about specific rights. Rather, it looks at how we might look at particular circumstances. Inferences might have to be drawn from each of those circumstances as to what rights they might indicate. It would be up to members to decide which ones to choose.

The Chairperson (Ms Sheerin): Yes, but there possibilities to address those gaps through a bill of rights, are there not?

Dr Potter: There are different approaches to the way in which you might do it. For instance, in the past, challenges to rights' standards in Northern Ireland by, for example, the European Court of Human Rights, were challenges to existing rights that have not been implemented. The addition of another right might not necessarily solve the problem; it is more about implementation. You would have to look at each circumstance and decide whether that required an additional right, taking into account that a bill of rights will be the European Convention plus any additional rights. It is how those additional rights — rights that do not yet exist — might be formulated.

The Chairperson (Ms Sheerin): OK, so it is more about how they are implemented.

Dr Potter: To a certain extent, yes. You could look around the world at different rights regimes in other countries and see that, in fact, people have a lot of rights elsewhere but they are not necessarily adhered to. The circumstance of having a right does not necessarily guarantee that you will get it. Therefore, it is as much about the implementation as it is about having it in a bill of rights.

The Chairperson (Ms Sheerin): OK. Thank you.

Mr Nesbitt: Thank you as ever, Michael, for your work on the paper. My comments and questions are probably too political to be firing your way, with one exception that you might be able to comment on. Whether it was deliberate constructive ambiguity or has become accidental ambiguity, is it fair to say that, for 22 years, the phrase "particular circumstances" has lacked any agreed definition?

Dr Potter: You are absolutely right: it does not have an agreed definition.

Mr Nesbitt: OK. Michael, thank you very much.

The Chairperson (Ms Sheerin): Thanks, Mike. Kellie? I was going to call you Paula, sorry.

Ms Armstrong: Paula would love that.

Thank you very much. Your paper refers to what we know from 1998, but I would argue that the particularity of Northern Ireland developed since the Good Friday/Belfast Agreement and that there are now unique characteristics in Northern Ireland. We have concentrated for so long on binary traditions that the other traditions have been set aside. When we are looking at rights — for instance, if we are considering political representation and participation — "cross-community" does not include all types of community in Northern Ireland. Is there any other research or paper that outlines the fact that, although the census shows change, we are going back to language and words from 22 years ago? Is there anything else that we can look at that shows the diversity of Northern Ireland now?

Dr Potter: A great deal of work has been done to look at the profile of Northern Ireland now. As part of some of the more recent processes and consultations around a bill of rights, particularly when the advice was submitted to the Secretary of State and in the subsequent consultation processes, organisations in the community did a lot of work to bring in a broader range of people to talk about the rights that they envisaged in Northern Ireland: for example, the migrant community or the minority ethnic community. Other characteristics of Northern Ireland that you do not get quite so much elsewhere and which might also be valid were, perhaps, not discussed quite as much in 1998, such as rights relating to Irish Travellers or other communities.

Ms Armstrong: What about the families who have grown up since then and who are much more mixed, and the language that is used to recognise the new, more homogeneous nationalist/unionist identity? Is there any research that could be brought forward that outlines that position? Quite often, measurement is in binary terms, as opposed to looking at the holistic view. Is there anything there?

Dr Potter: Yes. A lot of work has been done with young people. There have also been a number of surveys over the years, and the life and times surveys show that some things have changed significantly since 1998. Other things have not changed particularly, and things like segregation are not greatly different. You are right: people have tried to look more broadly at this than the model of the two traditions allows. That highlights the issue that, in a very changed Northern Ireland, we are trying to deal with something that was agreed in 1998. Trying to transfer the words of an agreement at that time into the formulation of a bill of rights today will, necessarily, have some implications.

Ms Armstrong: Thank you.

The Chairperson (Ms Sheerin): We will transfer to the members on StarLeaf. D comes before O. Mark, do you have any questions?

Mr Durkan: No, I am all right for now, Chair. Thank you for the presentation.

The Chairperson (Ms Sheerin): No bother. John?

Mr O'Dowd: I am OK. Thank you for the presentation.

The Chairperson (Ms Sheerin): Brilliant. That is us. Michael, thank you very much for joining us.

Dr Potter: Thank you very much, Chair.

The Chairperson (Ms Sheerin): You can take your ease now.

Dr Potter: Great. Thank you.

The Chairperson (Ms Sheerin): Thank you.