Official Report: Minutes of Evidence

The Chairperson (Ms Sheerin): Dermot Nesbitt joins us in person to give a briefing on "particular circumstances". Welcome, Dermot, how are you?

Mr Dermot Nesbitt (Ulster Unionist Party): Hello, Madam Chair.

The Chairperson (Ms Sheerin): Do you want a round of introductions before you start your briefing?

Mr D Nesbitt: I am ready, once I unmask. I recognise a few faces — "Oh dear", says I. Hi, Paula, it has been a long time.

The Chairperson (Ms Sheerin): Dermot, thanks very much for joining us this afternoon. We all have your written submission, which is useful and all-encompassing. Would you like to begin?

Mr D Nesbitt: OK. I see that we have two members on screen.

The Chairperson (Ms Sheerin): We do: John O'Dowd and Mark Durkan.

Mr D Nesbitt: Hi, John and Mark.

Mr O'Dowd: Hi, Dermot.

Mr Durkan: Hi, Dermot.

Mr D Nesbitt: OK, I am ready to go. I wish to make a couple of introductory comments before I proceed with my main briefing. Paragraph 2 of my submission quotes Professor Brice Dickson, who, when chair of the Human Rights Commission, said:

At the outset, I wish to say that, during this process since 1998, I have endeavoured to ground my work in international standards and international human rights. I have tried to make my maxim the plain meaning of the language: what it means, and what we should do.

I have tried to be objective and evidence-based, which is why I use quotations extensively in my submission, including some from what I have written. I firmly believe that, if we deal with this difficult issue in the phrasing of international law, we remove from the discussion the local lingo and the political lingo. That is what I have been doing from the outset. Therefore, I welcome cross-party questioning of my submission on the basis of that premise.

I intend to speak briefly on three aspects. I will put this in context: what is that we are about. I will look at what the two key players, namely the Human Rights Commission and the two Governments, have or have not done. Then, I will give a summary of my comments at the end of my submission.

In the talks process, there were three strands: North/South, east-west and within Northern Ireland. A further strand of cross-strand issues cut across the three strands, and I was the lead person from the Ulster Unionist Party (UUP) on that. I do not deny that I am a unionist — not at all — but that is different from what I will try to articulate to you.

A key issue was identity. Who could I use to better identify that problem than Senator George Mitchell, the chairman of the all-party talks in 1998? He was very clear: in 2019, he said that identity remains a threat to stability and that there must be a clear commitment to address this matter.

Paragraph 8 of my submission quotes a 'Belfast Telegraph' editorial:

There is the word "identity" cropping up, not from a certain perspective but from a general position. Therefore, the question is this: what rights do we need to address that issue?

In 1996, there was an election to a forum, from which the participants in the talks came. At that time, the Irish Government sponsored a Forum for Peace and Reconciliation to give advice to the participants, and they brought in international experts to formulate that advice. I quote extensively from two of those experts to give international context.

Asbjørn Eide is viewed as a leading international expert. He was an active member of a committee in Norway and of a United Nations subcommission. What did he say? He said that we should establish the problem. He said that the problem that is often the most difficult to resolve is that you have two groups with an ethnic dimension who compete and conflict over the same territory, and, when two ethnic groupings conflict over the same territory, they say that they are discriminated against and treated as second-class citizens. They seek recognition of parity of identity and parity of esteem.

That is what he said, and those words found their way into paragraph 4 of the Belfast/Good Friday Agreement. He also said that what the two groups may have wished for, apart from that, was for separation, autonomy or merger with a neighbouring state. We recognise those dynamics in the Northern Ireland problem. He also said was that it was not a unique problem and that very few countries have a population with homogenous ethnicity. It is not a unique problem. The dynamics are there, they are clear, and Northern Ireland fits within those dynamics.

Where do we go from there? What is the solution? Asbjørn Eide said:

He described that as the first multilateral hard law. Hard law means that any country that ratifies it must subscribe to giving submissions on how it has complied with that law. This was the first multilateral hard law dealing exclusively with minority rights. He also said that it went further than any previous international instrument. That was a substantial one: it was the first one, and it went further than anywhere else.

Let us not look only at what Asbjørn Eide said. I will quote from another Forum for Peace and Reconciliation document, this one written by Professors Boyle, Campbell, and Hadden. I am very conscious that the late Professor Boyle was a leading activist in the civil rights movement in the 1960s. So, I am not quoting from the unionist persona, as it were; I am trying to be genuinely objective. What did they say? There is a quote in paragraph 14 of my submission. They said that whilst "individual rights" were in the European Convention, community rights must also be addressed, and they suggested that those may best be addressed by incorporating the framework convention within a bill of rights. There it is — simple — in 1996.

They also said that all these rights were now enshrined in international law and that it was not for us to barter over which bit we accepted and which bit we did not. Rather, they were there to be subscribed to. I wrote this briefing in May 2020, and, as we know — I smile as I say this — over the summer, international law has featured everywhere, from Nancy Pelosi to all over the place, "We must subscribe to international law; we cannot do anything other". "Gee whiz", says I, "It is wonderful to hear them say it"; whereas I have been saying for quite a long time that we must subscribe to international law. So, there it is.

At the time, I was a member of the Standing Advisory Commission on Human Rights (SACHR), which was succeeded by the Northern Ireland Human Rights Commission (NIHRC). SACHR got involved in this as well. So, I reflected on these submissions, and I agreed with them: they were the correct, balanced way forward. It required compromise from both sides. It required some pragmatism if we were to make progress. I wrote in September 1996:

In June 1997, I challenged the Government, through a platform article in a local paper, to ratify this convention, which they were not doing; they were ignoring it. My article said that it should be within a bill of rights and that the European Convention and the framework convention gave the European model for solving this problem. Again, I was giving the international perspective. Finally — I smile at this; I really do — in January 1998, when the Westminster Government ratified it, I wrote that this represented, potentially, the most significant development. The word "potentially" is interesting because that means it developing into something in the future. Had somebody told me then that, 22 years later, I would still be looking for it to be developed, I would have said, "Catch yourself on, mate". I repeat: this is, potentially, the most significant way forward.

What is the framework convention? I will address that so that it is on the record and you get a flavour of it. It prohibits discrimination, preserves cultural identity and promotes mutual respect for all. Members of a minority community can assemble, associate and have freedom of thought and religion; they can communicate in any language; and they can communicate in the media — publicly, privately, in writing and orally. They are not precluded from anything. They can display signs privately, and they can display street names. They can use their own name.

On education, apart from the recognition of the right to education, members of a minority community can be educated in the minority language. There should be working together in teacher training, and there should be community collaboration so that people can understand each other. All of that is written in the framework convention.

The framework also mentions cross-border participation, saying that no state should stop people coalescing across the border, individually or collaboratively with an organisation. It also states that Governments should set up multilateral and bilateral agreements across borders — between states. There we have it: the rights are there; they are clear. The framework convention also says that for a state to be able to subscribe fully to those rights requires it to meet associated obligations. The key obligation is respect for the territorial integrity of the state. That is the position.

What about the UK Government and the Irish Government? This is my second point, and then I will briefly deal with my third point. The UK Government and the Irish Government viewed Northern Ireland as unique. It is not unique. If you think that something is unique, you have to find some unique solution that gives you a reason to, perhaps, not do the correct thing. I will give you an example of where, I think, they chose their words deliberately. They said that there "may" be some models that "might" contain certain elements that "could" be used. How evasive and waffly that is, but that is what they said in February 1998 when they had ratified the framework convention. So, they were not one bit enamoured.

It is not only about the recognition not being there, to a great extent, but the reluctance to deal with international law. That has also become very topical again now, but, again, I am conscious of when I wrote this paper. They were reluctant to deal with international law. The UK and Irish Governments wrote a paper, to which paragraph 34 refers. They said that they would "have regard" to international law. Having regard to something is saying, "We'll look at it; we might or might not deal with it". It took a little persuasion. I am not saying that I did all the persuading, but it took a little persuasion. Eventually, in the Good Friday/Belfast Agreement, they said that they would ensure that international obligations were met. That is somewhat different.

This is where you, as an Ad Hoc Committee, are important. The UK and Irish Governments have ratified a key, fundamental international instrument: the framework convention. The Irish Government committed to doing so in the Belfast Agreement. You must ensure that those international commitments are met. That is a challenge to the Committee: ensure that the Government do that. At the moment, Madam Chair, they ain't doing it.

What about the Northern Ireland Human Rights Commission? It, I believe, got it wrong as well. Yet, Professor Brice Dickson made it clear that there was a head of steam for having a lot of rights. He said that there was a great variety of supplementary rights that we must have.

Yet, another professor, Professor Tom Hadden — they are all senior academics — who was on the Human Rights Commission for the first five years, concluded:

I, as one who participated, agree entirely with him, and that is why I will welcome your questioning of me, if you wish to do so.

The next chair was Professor Monica McWilliams, who took an honourable position. She said, "Look, our work is based on securing the highest level of rights for all the people of Northern Ireland. What else would you expect from the Human Rights Commission?" However, the bit that I did not like was where she said that it was not some tick box for the Belfast Agreement and that we would do this, this and this. That is most disrespectful of an agreement that was agreed across this island of Ireland by the majority of people, and she viewed it as some tick-box exercise for the Belfast Agreement. Even today, the Human Rights Commission has said that the 2008 submission is a strong basis on which to proceed, so it is not in any way changing its position.

So, what is my commentary, briefly, the third part that I said I would come to? I am watching the clock.

The Chairperson (Ms Sheerin): You have plenty of time. Fire away.

Mr D Nesbitt: I know, but nothing crystallises the mind more than thinking that you have a deadline. [Laughter.]

The pathway to progress is clear — very clear. My views are also clear: I wish to subscribe to international conventions and have the same rights and the same obligations as elsewhere. Nothing more, nothing less. It is that simple.

The language is also clear. "Identity" is defined as culture, language, education and religion — clear. "Ethos" is clear: it is the characteristics of a community as regards their attitudes and aspirations. "Parity of esteem" is equal respect for the identity, ethos and aspirations of the community. Very clear, very simple.

Some have wished — still wish — to have a much more expansive bill of rights for Northern Ireland, but you cannot avoid what the law says. You are mandated, first and foremost, to implement the law. It is simple: you must apply the law as written. As I said at the beginning, my maxim is the plain meaning of the English language, and it is there: it is clear, it is plain, and it is simple.

I do not doubt the sincerity of those who wish to have a wider bill of rights. Indeed, can we find a compromise between the wider spectrum that some clearly wish to have and what the precise law says? I believe that we can, and perhaps that will come up in the discussion. If we do not find a balance and a compromise, progress will not really be possible. Only with a balanced position will they make progress.

I am conscious of what Christopher Stalford said when Dominic Grieve said that, if we can get an agreed position, Westminster could not really say no to us. You said, Christopher, that that was one of his key statements: find a compromise position between those who wish for greater breadth and those who want a more strident, clear-cut bill of rights that is mandated by law. That is what the Committee needs to find and what I would like to discuss.

"Aspiration" is fully recognised for the nationalist community in the Good Friday Agreement. There is no problem, because that is there. We need not go too far. We need go no further than Scotland or Wales. Take Scotland, for example, with its very strident separatist party, the Scottish National Party, led by Nicola Sturgeon. I would not wish to fall out with Nicola Sturgeon. I have never met her, but she is very, very — I see that you are smiling, Chair. Have you met her?

The Chairperson (Ms Sheerin): I have not. [Laughter.]

Mr D Nesbitt: She is very strident. However, my point is that the Scottish National Party respects the principles of international law. So, you have to go no further than Scotland. Yet, I say, as a unionist, that I agree entirely with what Michelle O'Neill said:

I agree, but you cannot pick and choose. You take it all, and that is where the problem might be.

Where do we go from here? There is a need for a bill of rights. The framework convention lays down the mandate or template for that, and from that template comes legislation. From the legislation comes action by the various participants in the political process and government structures. Then, you consider and judge whether they are implementing it and what needs to be implemented.

Those, Madam Chair, were my introductory comments. Dare I say that I genuinely — I hope that I do not regret saying this by the time that I finish this afternoon — look forward to a discussion?

The Chairperson (Ms Sheerin): Thank you very much. That was interesting, and it was very interestingly delivered. You stated at the outset that you view international law as important. You said that the UUP's response at the time — I am conscious that this was quite a while ago — was that it wished for the same rights and the same level of stability and that those should be based on the same principles as applied elsewhere in Europe. I am conscious that you wrote your submission in May, and you referred to the current conversation about international law. Do you think that Brexit will have any impact on this? What will that be?

Mr D Nesbitt: Oh, yes. Brexit brings changes. We do not live in a society that never changes. Brexit will change the situation generally, but the issues and problems that were identified in 1998 are still there. I might come to what Les Allamby said, because I do not agree with him. We still have a community. Let me give you two quotations that provide a balance on where we are. On 14 August — my birthday — 2019, Alban Maginness wrote in the 'Belfast Telegraph':

The problem is still there, notwithstanding Brexit. Another quotation, which may be even more doleful is from Alex Kane, who, writing on 31 August, said:

Think about that, and think about what Alban Maginness said: the politicians are not giving anything about identity or respect to younger people. We are in stalemate. That problem, Chair, is still there, notwithstanding that there is a changed society because of Brexit. Of course, the European Convention remains. The EU Charter of Fundamental Rights disappears, but that does not preclude one asking, "What are these rights?" This is where we come to how you can have expansive rights, if you so wish. I recognise that there are changes, but I also say that there is still a problem there, and it needs to be addressed.

Mr M Nesbitt: Thank you, Dermot. I will take you back to 1998.

Mr D Nesbitt: Yesterday.

Mr M Nesbitt: I will also take you to the reference to a bill of rights at that time. My reading of it is that the agreement said, "We will take the European Convention on Human Rights as the foundation for our regard to what we want to do, but we will then task people to look at the scope to add to that some rights that reflect the particular circumstances of Northern Ireland". Was that a compromise position, or did all the parties think that it was the best way to go?

Mr D Nesbitt: It was agreed. The peoples of the island of Ireland agreed it. There was recognition that there was the European Convention on Human Rights, but that is about individual rights. You saw what I wrote to reflect the talks process, which was that there needed to be something to deal with community, group and minority rights. You had to add that on.

Mr M Nesbitt: Yes, but that is my point. It is not your position, certainly not today. Your position today is that there were two foundations: the European Convention on Human Rights; and the Framework Convention for the Protection of National Minorities.

Mr D Nesbitt: There were those two, but they were to be integrated. As I said in my article, they both form the model for Europe. You take the European Convention on Human Rights and build on it, as the agreement states:

I remember Friday 9 April 1998, when we got a copy of the document. I went through the bits that I viewed as relevant. I remember reading that, and I was content with what it said, mindful of what had been said in the various committees and of what I had put in print, which I have given here. There is an old saying that the proof of the pudding is in the eating. I say that the proof of the argument is in the written word. I was content with what it said.

Mr M Nesbitt: There are two written words that we have been debating for 22 years, and those are "particular circumstances".

Mr D Nesbitt: Yes.

Mr M Nesbitt: Was that constructive ambiguity?

Mr D Nesbitt: No. It was not ambiguous, in a sense, because if you read the agreement very carefully, you will see that it states that the:

It then says, "These additional rights", which means, "These supplementary rights to do with the particular circumstances". What are they? They are mutual respect, identity, ethos and parity of esteem. I have said to you that it is very clear what they are: identities, culture, language, education and religion. Ethos is about what a community aspires to and what its attitudes are, and parity of esteem is respect for identity, ethos and aspirations. It is very clear. If people wish it to be clear, it is clear. I am somewhat amazed that we have senior legal academics who are — I shall watch what I say — rather ambiguous in their interpretation.

Mr M Nesbitt: At the time of April 1998, did all the negotiators have the same analysis of what "particular circumstances" means as you do today?

Mr D Nesbitt: As I did then and still do today, to be precise. I cannot say what a person's mind is, but I know what was written, and I know that I was content with it on Thursday 9 April before Friday 10 April, which was Good Friday. There was a bit of toing and froing before we met on the Friday. It was fascinating, in a sense. But then we got round the table, George Mitchell went round the various parties and they agreed to it, except Sinn Féin, to be frank, which said that it would have to consult. Since then, Michelle O'Neill has said that we can go only for respect, equality and the Good Friday Agreement. Yes, but you cannot pick and choose what bits you want and what bits you do not. I was content with the bit that I was dealing with, and I remember the parties agreeing it. Whether behind the scenes they liked it is a different matter. Even more importantly, the agreement was put to the peoples of the island of Ireland on 22 May 1998, and it was agreed. It was unique to have two referenda in the two parts of the island of Ireland and as one. It was an agreement by all.

Mr M Nesbitt: In your presentation you talked about your belief that there is a compromise between what may be the narrow definition in the 1998 agreement and those who want, shall we say, an all-singing, all-dancing bill of rights.

Mr D Nesbitt: Yes.

Mr M Nesbitt: That is interesting, and it is obviously something that the Committee will have to try to come to a view on. I am interested in the elements that might go into a bill of rights. The more that I read into this and the more that I hear, the more I think that the preamble is extremely important because it would represent us giving a vision of how we want our society to be in the future, which would be based on a series of values. That means, in other words, what we want to promote and what we want our society to be free of. From that would flow the actual rights, our entitlements and the obligations of the state. From that you would, finally, have individuals who say, "Those are my rights", communities saying, "These are my rights" and politicians saying, "These are my obligations". Is that how you see it?

Mr D Nesbitt: Yes. As I said to you, I see the bill of rights laying down the template. However, there were maybe up to 30 rights in the framework convention, and when those are compared with what the Northern Ireland Human Rights Commission did on the "particular circumstances", we find that they are minimal. Maybe the question will come up, but I would like to go through why I think the Northern Ireland Human Rights Commission got it totally wrong. Truth to power needs to be said by, "Sorry, you got it wrong. You had better recognise that if we are going to make a compromise". Do you want me to go through it?

Mr M Nesbitt: I think that I am aware of it.

The Chairperson (Ms Sheerin): I do not mind.

Mr D Nesbitt: Yes? Do you want me to go through it?

Miss McIlveen: Please.

Mr D Nesbitt: Look, it is lengthy but quite simple. If you look at what the Northern Human Rights Commission submitted in 2008 on the right to life, a fair trial, marry, health, an adequate standard of living, accommodation, work, environmental rights, social security rights and children's rights, you see that there is a plethora of rights but that there was little that dealt with:

It is minimal. If you look at that right in the 2008 document, you see that there are six rights in that identity and culture dimension. Take the first one:

That did not come from the rights section of the Good Friday Agreement. It came from the constitutional section. It was not anything to do with rights. In fact, the Northern Ireland Human Rights Commission was open when it made a statement, and what it said was very clear. It said that this particular right that we are dealing with:

Yet, according to the agreement, the commission is meant draw upon international human rights. So, it does not reflect any. It is a bit like conflating, and the irony of that is that you could have an Irish identity and identify as British. They are not mutually exclusive. In a sense, that particular first right is not a relevant right to what the commission was meant to do, yet it put it under identity and culture.

The second one is:

and that does not apply either, but I need not go into it in detail.

Take the third one under identity and culture, which says that:

Where does it say it takes that from?

It took it directly from the Belfast Agreement, so all that that third right is repeating is what is in the Belfast Agreement. It is not giving you any rights. It is just a repetitive statement, and those three rights are of no consequence, in a sense, to dealing with what needs to be addressed: culture, language, education and rights. I could go on about that, but I do not want to take up your time.

I want to talk about something that I am very conscious about. I listened to Les Allamby talk about this matter, and this is like truth to power as well, because he is still defending the Human Rights Commission's position. What did he say? I listened to him, and I transcribed what he said on 19 March. He said that the commission was committed to a bill of rights as it is in the Belfast Agreement, and then he read out paragraph 4 on rights, which is the very paragraph that the Committee is dealing with. He said that there is a "fair bit to unpack" in that. It is not a "fair bit to unpack"; it is quite clear and simple. However, more substantively than that, he said, "Are we looking at 1998, or are we looking at 2020?". He also said that he thought that it was clearly the latter. He talked about the idea of somehow trying to go back to the future and saying, "Let's remind ourselves of what the situation was in 1998", but that is very dismissive of 1998. He said that we are now in a very different position. I quoted Alban Maginness and Alex Kane, and you can see what I said about George Mitchell in the 'Belfast Telegraph'. Yes, we are in a changed position from that in 1998, but the problem of 1998 is still there.

I will make a final comment on the Human Rights Commission's submission on 19 March. Dr David Russell said that, "Advice was provided" and that "the mandate is complete". I say, "Sorry, Dr Russell. Your mandate was not complete. You did not subscribe to the law as written in the Belfast Agreement". I said this in the document, and given that you were talking about trying to find a compromise, I recognise that we can have additional rights. Let us see them. However, we also need a recognition from the Human Rights Commission — I will call it a "recognition reality" — that it did not provide what the law stated it was to provide. Les Allamby said that we are in a very different position and that we should start in 2020. I say, "Yes, you can look at that, but 1998 is still with us".

How might we get over that? I will give a suggestion. If you take the law, you see that the commission used this law, which I quoted in paragraph 41 of my submission. What the law says is in section 69(3)(a) of the Northern Ireland Act 1998:

Section 69(7) of the Northern Ireland Act states that the Secretary of State:

The commission got specific advice. Section 69(3)(b) says that advice can be provided:

What do "such other occasions" mean? That means occasions other than when the commission got the specific advice. I suggest that the commission should, at the very least, recognise and have a separate section dealing with paragraph 4. That would recognise the importance and meaning of paragraph 4 and provide comprehensive advice, not the minimalist advice that the commission provided. The Committee may wish to have a separate section, and that goes back to Christopher Stalford's comment about finding a balanced position where you say, "OK, let us take the law and say, 'Here is another occasion where we want to provide advice'". Wider-ranging rights are two separate aspects. That is a clear way forward, but I am very clear that the commission supplied a minimalist subscription to the law, yet that is what it was mandated to do. It subscribed to a more maximalist set of rights, which it was not mandated to do.

There is an interesting final point to make. The Belfast/Good Friday Agreement is an international treaty. Therefore — guess what? — it is international law. Guess what? You would not be surprised if I said, "Hey, Human Rights Commission, you are in breach of international law". We have heard that before, but I have not heard it said too many times publicly. I believe, and I challenge it —.

Mr Stalford: Next time Les Allamby is in front of the Executive Office Committee, you might. [Laughter.]

Mr M Nesbitt: Thank you very much, Chair.

The Chairperson (Ms Sheerin): No problem, Mike. Nobody else has indicated. Paula, do you want to come in?

Ms Bradshaw: When you were talking about 1998, what is enshrined in law and where we are as a society now, 22 years later, it struck me that perhaps that section should be amended. That is probably a wild thought. Once we complete this inquiry and consult with people, and it comes out that they want to be even more expansionist, to move away from the "particular circumstances" and to include things like environmental rights and other socio-economic rights that, maybe, were not originally envisaged, would one way of getting round that be to amend the 1998 Act?

Mr D Nesbitt: You could amend the 1998 legislation; nothing precludes amendments to legislation. However, I am saying that you cannot overlook —.

Ms Bradshaw: I am sorry; overlook or overrule?

Mr D Nesbitt: You cannot overlook what is in paragraph 4 on rights of the Good Friday Agreement. As I say, those rights need to be laid down. The template is there from the framework convention. The experts, including Hadden, Campbell, the late Professor Boyle, Asbjørn Eide and the Forum for Reconciliation from Dublin, said that that is what should be done. That is what should be done, but that is being overlooked almost in its entirety by the Human Rights Commission. It was very minimalist. I am not saying that you should not amend the law; I am giving you a way of doing it without having to amend it. The law says:

On such an occasion we could say, "Well, there is paragraph 4 on rights; there is a fully comprehensive set of rights that we recommend should be implemented according to international law, but also, because circumstances have changed, here are other rights that we think appropriate under section 69(3)(b)". It already gives you permission within the law to provide other rights without having to amend the law. I emphasise that if you amend the law, you are, potentially, diminishing the intent of paragraph 4 on rights of the Belfast Agreement, which was agreed by referenda in Ireland.

Mr Stalford: Thank you, Dermot. It was lovely to listen to that; it was really interesting. There are faint echoes in what we are discussing here of what is going on in Capitol Hill at the moment, with people discussing the different ways the law should be interpreted. Should it be interpreted as the authors intended or as a means of providing a platform for activism? It is an interesting conversation — at least I think it is interesting; others probably do not.

The central lesson that I have drawn from what you said is that we have overcomplicated things. A bill of rights is a very nebulous concept, and we are tasked with trying to draw one up. We may have overcomplicated it ourselves. I do not know who I offended —.

Mr D Nesbitt: May I interrupt? Who is the "we"?

Mr Stalford: The Assembly. I do not know who I offended in 2008, but I was on the bill of rights forum.

I saw how that spiralled completely out of control in the recommendations that were produced. It was clear that there were various sectional interests who were party to that process and who saw in the bill of rights a means of achieving for themselves things that they would not be able to achieve through conventional political means, like lobbying to get legislation passed and stuff like that.

My question is this: we have the framework convention and the European Convention, so are you suggesting, basically, that those should be our template and that we should try to translate them into domestic legislation?

Mr D Nesbitt: Not so much, because there have been changes. In fact, Les Allamby said that the closest thing we have to supplementary rights to the convention is the European charter, because it takes the European Convention and builds into it additional rights. However, his saying that means that he is overlooking entirely the framework convention on the rights of national minorities.

You are right about the forum. You were on it, Paula was on it and I was on it. This is probably the first time since then that the three of us have sat around a table. [Laughter.]

It seems like yesterday; it was 2007, which is 13 years ago — oh dear me. You are right; it was maximalist. It ran away with itself, and that is why I still say that it needs balance, compromise and recognition — "reality" was the word that I used — by both sides. In other words, the Human Rights Commission should recognise the reality that it did not subscribe to paragraph 4. Those who were taking the minimalist view should perhaps recognise that, yes, we should have additional rights, because this is an opportunity to have additional rights. You can say under section 69(3)(b) of the Northern Ireland Act 1998 that that is what we think we should do, but, when you suggest additional rights, you should not go for everything. Progress in any political world can be made where there is pragmatism and recognition by both sides.

I can see John O'Dowd. He may remember that he said at one of these meetings that he tries to understand the viewpoint from the other side. I think it was John who said that. This is where we have to see the viewpoint from the other side. I can see what Monica McWilliams wished for, and I say to Monica that we should just be a little bit realistic and that she should recognise that she did not subscribe to article 4. That goes back to what Paula said: if you try to amend the law, you are diminishing what was in the law.

Miss McIlveen: I am interested to know how you would find balance and compromise. Interestingly, and I found your paper really fascinating, you quoted academics and politicians. How do you build consensus among communities, particularly amongst those that are, perhaps, sceptical about what a bill of rights would look like in practice?

Mr D Nesbitt: I am not downgrading politicians, because I was one, but the difficulty with politicians per se is that the community to a certain extent has lost faith in anything that they try to do. I quoted from Brice Dickson when he said that there was a groundswell in 2001 and the opinion was, "Oh, we need a bill of rights. Great, great, great". Therefore, you — I mean those who make the decisions — have to consult, and I would consult the Human Rights Commission because it is an important body that deals with this. You and it could find a compromise within the law that says that it has to recognise certain things. It is a bit like, dare I say it, COVID at the minute for the Executive, and I am sitting on the outside. If you can find agreement, the people might be behind you. Part of the problem at the moment with COVID is that some people say, "The Executive cannot get agreement on what to do". The Minister of Education is saying that our schools will be open on 2 November, but someone else is saying that the Executive have to agree to their being opened again on 2 November. It is not quite simple.

Therefore, giving a confused message does not help. The fundamental question is this: how do you bring the people with you? The answer is that you get a simple, clear message that you have agreed with the main actors. One of the main actors, apart from the Committee, which is very important, is the Human Rights Commission. If you can get your act together collectively and provide a clear, simple message, the people, if they are not behind you, will certainly not condemn you.

Miss McIlveen: OK. Thank you.

The Chairperson (Ms Sheerin): All right, Michelle? I think that John indicated on the screen that he wants to come in.

Mr O'Dowd: Thank you, Chair. It was a very interesting presentation, Dermot. I do not know whether you remember this, but you and I spent a long summer together in 2006 on the Preparation for Government Committee, which was the public dynamic that led to the agreement at St Andrews. I found your contributions then insightful, thoughtful and, at times, provocative but always measured. I note that you are still as sharp as a tack and still negotiating the issues.

You gave a very interesting presentation, but the basis of your presentation is that everybody else got it wrong: the Human Rights Commission got it wrong and the eminent barristers and eminent legal minds, to whom you referred, got it wrong. You also said that the call for a bill of a rights was a very narrow interpretation of paragraph 4. There has to be a challenge to you on that.

Let us say that we accept your interpretation that the Human Rights Commission got it wrong. The British Government asked the commission to advise them on the way forward. The British Government did not have to take that advice. They could have brought forward a bill of rights, but, to date, they have not brought forward any bill of rights. So, the British Government have failed in their duty under the international agreement.

Mr D Nesbitt: Yes, and I remember that you made that comment and said that they have now set a pattern for not agreeing with international law. That was the bit you added when you said that at a previous Committee meeting. I am therefore conscious of that point having been made. However, the British Government — Dominic Grieve referred to this as well — were looking for consensus on whatever they brought forward, but they did not see consensus; they saw disagreement among the parties.

You used the phrase "a narrow interpretation of paragraph 4". I would say that it is not a narrow interpretation of paragraph 4; I would say that paragraph 4 is precisely defined and that we should interpret it as defined. Some say that interpreting it as it is defined is narrow. Yes, it is narrow compared with the breadth of rights for the whole community. At that time, it was an issue, and it is still an issue that George Mitchell, Alex Kane and various others said needs to be resolved. I am not ducking the issue, and I am not saying that you are saying that I am ducking the issue; I am saying that we need to address paragraph 4, because it is an important element that needs to be addressed. We can consider wider ones.

Yes, I remember those Committees in 2003, 2004 and 2006. I have the document that I submitted, and I think that the document is in accordance with what I am saying today as well. I have not changed my opinion.

Mr O'Dowd: I do not argue that you have. Your contributions have always been useful and have contributed to where we are today.

On the rights of identity, you referred to the fact that the Good Friday Agreement gives people the right to identify as either Irish or British. The recent DeSouza case proved that that right needs to be legally enforceable, but it is not. Given that, perhaps the Human Rights Commission was correct in its original draft legislation to identify it as a right that needs legal protection.

Mr D Nesbitt: I have two points on that. First, that right deals with all members of the community, not just the two. You say that the law needs to be adopted. I was very clear in 1998, when I agreed to the Belfast Agreement, that the law said that anyone born in the United Kingdom whose parents were residents, perhaps even in the United Kingdom, were automatically entitled to British citizenship. In fact, when it went to court, the argument was that, when you are born, you have to automatically be something; you should not have to fill something in to be something.

Then the law allowed you to say that you did not want to be British and apply for Irish. They have changed the law — I agree with you — to a European position where they do not have to renounce, as it were, British citizenship for Emma DeSouza to bring her partner, who is an United States citizen, here. The law has somewhat changed, but the point that you make is that the law is there and covers wider rights. We are dealing with aspects that are not there in law, namely the community rights of culture, language, education and religion. They are not in a bill of rights, and there is no law to reflect that in its entirety in Northern Ireland. I agree with you about Emma DeSouza, but the detail of the argument regarding Emma DeSouza still does not make it relevant to a bill of rights.

Mr O'Dowd: Thank you. It is good to see you again, Dermot. Look after yourself.

Mr D Nesbitt: Good to see you.

Mr Durkan: Thank you for that, Dermot. You are a wee bit critical of the Human Rights Commission's views on what a bill of rights should address, but, to take one example, it says that about a fifth of people in Northern Ireland have a disability. I cast my mind back, although not as far back as you have been casting yours today, but to just a few years ago to the Welfare Reform Bill when all parties here, nationalist and unionist, were making the case, here and in London, that our higher proportion of people with disabilities had to be understood in the context of a post-conflict society. It seems a bit artificial to view what you quite rightly describe as valid concerns for every society, or for any society, apart from the conflict and its enduring structural and, in many cases, personal effects.

Mr D Nesbitt: Yes, disability is very important, and I would not for one moment say that there should not be rights for it. However, we should put it into context and not minimise, which the Human Rights Commission did, the rights that should have been considered under paragraph 4 of the Belfast/Good Friday Agreement. I am glad that you mentioned that, because I would not want to give the impression that I am against any of those other rights that I have listed — not at all.

Mr Durkan: I did not get that impression. Sorry, Dermot. Can these all be viewed completely separately from our shared experience of the conflict here?

Mr D Nesbitt: They may not be separated from the conflict, and there are a lot of aspects to victims of terrorism and who is a victim. There are also debates about the repercussions of the violent campaign. They are all very significant, very important and very sensitive, and some people feel very concerned that they have not been addressed. Compensation for victims and all of that is very difficult. I am not trying to diminish that, but I am saying that paragraph 4 of the Belfast/Good Friday Agreement mentions constituting a bill of rights to consider identity, ethos and parity of esteem.

Identity, as defined by international law, is your culture, your language, your education and your religion. However, even the Human Rights Commission said that nowhere in international law refers to citizenship as a right. The law says that they are meant to draw, as appropriate, on international instruments. However, there is no international instrument that deals with citizenship as such, for example. I agree with you, but we have to be very careful. I am not saying that I am right; I am just saying that I believe that the law is quite clear, and we must take the letter of the law and implement it. That does not, as I keep repeating, preclude other aspects that you mentioned being considered.

Mr Durkan: OK. Thanks, Dermot.

Mr D Nesbitt: OK, Mark. Good to see you.

The Chairperson (Ms Sheerin): That is us.

Mr D Nesbitt: Is that us? That is me.

The Chairperson (Ms Sheerin): Thank you very much for joining us this afternoon. It was really useful. I want to thank you for your presentation, time and insight. I think that we are unanimous in that.

Mr D Nesbitt: I wish you well. If you want to have me back, do not hesitate to invite me.

The Chairperson (Ms Sheerin): Brilliant.