Official Report: Minutes of Evidence

The Chairperson (Ms Sheerin): We have a briefing on Brexit and the wider implications for human rights in the North by Professor Colm O'Cinneide. Colm is a professor of constitutional and human rights law at University College London. Professor O'Cinneide has acted as a specialist legal adviser to Westminster's Joint Committee on Human Rights, its Women and Equalities Committee, and has advised a range of international organisations, including the United Nations and the European Commission. With that, I welcome Professor O'Cinneide to the meeting.

Professor Colm O'Cinneide (University College London): Thank you very much. It is a great honour for me to be invited to speak to you this afternoon. I hope that everything is proceeding OK with the technology. As I tell my students repeatedly, tell me, as ever, if I begin to fade out or if you need anything repeated or reiterated.

I have been asked to speak to you for around five or 10 minutes on the implications of Brexit for human rights protections in the UK in general, with specific reference, of course, to Northern Ireland. I am going to focus primarily on what I regard as the live issues with regard to the human rights impact of Brexit, and those, perhaps, with a particular impact on the wider debate relating to the constitutional status of Northern Ireland and the ongoing bill-of-rights conversation.

Brexit has been described as being potentially human rights neutral in the sense that there is nothing intrinsic about the Brexit process that, if well managed, would necessarily lead to a diminution or reduction in human rights protection. However, that is subject to the qualifier of "if everything is well managed". The debate over the last three or four years has been an ongoing discussion about what implications the Brexit process, as it has unfolded, has had for human rights protection.

In my evidence this afternoon, I will not focus on one set of issues relating to the human rights impact of Brexit, which is the impact on non-UK or non-Irish nationals who are resident in the UK. There is a whole set of potential human rights issues in relation to the right to privacy, family life, data protection, employment rights, non-discrimination rights and so on. As negotiations have unfolded over the last two years, those issues have largely been resolved as part of the withdrawal agreement with the EU. I will not go into those issues unless the Committee wishes to raise them subsequently. Instead, I will focus on the more structural issues related to the impact of Brexit, which are the issues that arise from the impact of Brexit on existing legal protection for human rights. In particular, I will focus on, perhaps, the most significant area of impact of Brexit, which is its impact on equality and non-discrimination rights and employment rights in particular. Brexit will have a particular impact there on Northern Ireland, as I am sure Committee members will be aware, so I will focus on that.

Bearing in mind the limited time allocated to me, the key issue, which I tried to set out in the written briefing that I submitted to the Committee, is that substantial parts of UK law and, in particular, Northern Irish law, as it relates to the enjoyment of equality, non-discrimination and employment rights more generally, were generated by EU law, either through the direct application of EU treaty requirements — for example, article 157 of the Treaty on the Functioning of the European Union (TFEU) that guarantees equal pay for work of equal value — or else through various EU equality directives, such as framework equality directive 2000/78, which requires all member states to prohibit discrimination on the grounds of sexual orientation, age and religion, among other grounds, in the area of employment and occupation.

Not only did you have EU legislation in the form of treaties and directives, you also had the jurisprudence, the case law, from the Court of Justice of the European Union, which has been very influential in interpreting those EU legal requirements. Then, of course, the UK law had to give effect to the Court of Justice's interpretation of the treaties and directives and implement them in UK law. The effect of that, to cut a long story short, is that much of UK law, as it currently stands, has been shaped and moulded by EU anti-discrimination law, with significant areas of the law, particularly, for example, the rights of pregnant workers or the rights of certain categories of persons with disabilities, predominantly — almost completely — generated by EU law.

That, of course, gives rise to the question of what happens now that the UK has exited the EU. As Committee members will be aware, EU law remains in force. It changes legal status and becomes this thing called retained EU law, which continues in force after Brexit and after the transition period ends on 31 December, unless it is subsequently modified by Acts of Parliament, Acts of the devolved legislatures or, indeed, by ministerial regulation.

The significance of that in the Northern Ireland context is that much of the Northern Irish law relating to equality and non-discrimination rights either involves the direct application of the EU standards or has been enacted by ministerial regulation over the decades. Many of the key provisions of Northern Irish law, in relation to sexual orientation discrimination, for example — the type of claim that was at issue in the Ashers Bakery case over the last few years — is developed through ministerial regulations. The particular significance of that is that, now, all retained EU law becomes adjustable by UK law. That means that much of Northern Irish equality and anti-discrimination law was once "quasi-constitutionalised", as I described it in my evidence, and protected or locked into place by the fact that it was required by EU law, and now that EU law is no longer locking in the relevant Northern Irish law, it reverts back to being changeable UK law. Because so much of it has been established by ministerial regulation, or involves interpretations by the Court of Justice and then is subsequently applied by the UK courts, this means that much of existing Northern Irish law is potentially amendable by ministerial regulation — mainly by the powers of the Secretary of State under the EU (Withdrawal) Act, 2018, where the Secretary of State for Northern Ireland has extensive powers to adjust and modify retained UK law, under "Henry VIII clauses" and similar measures. They give the Secretary of State wide powers to adjust that law.

This is a particular issue for Northern Ireland, as I have said, because of how much of Northern Irish law is regulation-based and, therefore, can be changed by ministerial regulation. The situation is different, to a large extent, in Britain because the Equality Act 2010 applies to England, Scotland and Wales. That is Westminster legislation — the controlling legal norm in play — which means that most equality and anti-discrimination law in Britain cannot be changed by a Minister or regulation. It would require an Act of Parliament, an amendment to be made to the Equality Act 2010.

All of this means, to cut a long story short — I apologise for the complexity of my briefing and the complexity of the legal issues — is that Brexit has had the particular impact in Northern Ireland of deconstitutionalising much of its equality, anti-discrimination and employment rights framework more generally and of making existing Northern Irish law easy to alter by ministerial regulation as distinct from parliamentary legislation. As you will be aware, perhaps more than I am, regulations are much easier to implement. Law which is changeable by regulation is much easier to adjust and is not subject to the same legislative processes as changes by full primary legislation.

To summarise, Brexit has a particular impact on human rights protection in the case of Northern Ireland, by virtue of how it puts a question mark, over much of existing Northern Irish law, in relation to equality, discrimination and employment rights in general, and it makes it much easier to amend by the Executive.

That is a brief summary of the written briefing that I submitted to the Committee. I would be delighted to answer any follow-up questions or queries or anything that you want to ask me about this, or indeed, wider topics.

The Chairperson (Ms Sheerin): Professor, thank you very much. We have had a range of presentations. We have been meeting every week since the summer, and we have had contributions from many academics, people involved in human rights and professors from different universities on this topic. The thing that we constantly discuss is Brexit and the remit of this Committee, as it appears in New Decade, New Approach (NDNA), to consider the creation of a bill of rights, considering both the "particular circumstances" as laid out in 1998, and the impact that Brexit will have on those.

I note that you mentioned in your presentation that you feel that an article in the protocol protects this "floor", as set out by the EU.

You have talked about the protocol arrangements potentially being abandoned in a couple of years' time. The question that I keep coming back to is this: in that instance, would a bill of rights allow us to reintroduce that floor or, indeed, improve on what we currently have?

Professor O'Cinneide: Yes, that is [Inaudible.]

The Chairperson (Ms Sheerin): Are you muted maybe?

Professor O'Cinneide: Am I unmuted now?

The Chairperson (Ms Sheerin): We can hear you now.

Professor O'Cinneide: Perfect. I apologise. I am the terror of my students with my incapacity to mute and unmute.

I did not discuss the protocol a lot in my oral presentation just now, but it is analysed in detail in the paper. Of course, the provisions of the protocol maintain key elements of EU law in force in the specific context of Northern Ireland. I deliberately did not emphasise this in my oral briefing because, of course, the protocol is the subject of some political debate and, obviously, it is potentially up for renewal in four years, as per the renewal mechanism set out in the protocol mechanism. Therefore, from a strictly legal perspective, the protocol is a recurring temporary solution. I do not mean that in a political sense; I mean it in the legal sense. It is something that, for now, locks in existing EU law as it relates to equality and non-discrimination rights. Therefore, for now, its effect is to retain the constitutionalisation of anti-discrimination and equality law, which the EU used to provide. However, obviously, that is a legal embedding of equality and non-discrimination rights that is subject to the fortunes of the protocol and would fall away in four years' time if the protocol were not to be renewed.

Now, of course, that gives rise to this question: might there be an argument for having an alternative, more permanent mechanism for embedding equality and non-discrimination rights? In my expert opinion, using the protocol as the primary mechanism for embedding equality and non-discrimination rights has its disadvantages. The potential four-year cut-off point means that, in four years' time, everything could be up for grabs once again. You would be back to the original legal situation that I sketched out in my briefing. If the view of the Committee and elected representatives in the Northern Ireland Assembly is, "We want something more permanent, more embedded, longer-lasting and less subject to the churn of politics that will surround the protocol", there are good grounds for thinking very seriously about having a bill of rights framework that embeds protection for equality and anti-discrimination norms. That would become the established vehicle for locking in this level of protection rather than what is done at the moment, which is relying on the protocol with all the politics and uncertainty that comes in its wake.

The Chairperson (Ms Sheerin): Thank you. The final part of your comments hit the nail on the head. As I alluded to earlier, we have had different legal experts giving us advice on this. The consensus has been that there is not really consensus. We know that we are probably going to maintain some of the charter rights. We know that we are supposed to be keeping the ECHR in its entirety, but there are different views as to what exactly will be maintained, what we risk losing, and whether the Internal Market Bill going through as originally written will have an impact on that. There is an awful lot of uncertainty. The idea that we could come up with our own bill of rights that ticks those boxes and gives us that level playing field to begin with is key. Thank you very much.

Mr Nesbitt: Professor, good afternoon and thank you for your engagement; it is much appreciated. You say that the equality laws that we have are largely enforced through ministerial regulations. You go on to suggest that that means that they are "uniquely easy to amend", which sounds very handy. In paragraph 22 of your submission, you make clear that section 21:

Am I right in thinking that that could take us back to the dark days of direct rule, when much legislation for Northern Ireland came by an Order in Council which could not be amended, so local MPs could either vote for or against it but could not improve it?

Professor O'Cinneide: Yes, that is precisely the potential concern. You could have a scenario where UK Ministers, using their regulatory powers under the EU (Withdrawal) Act, would modify retained EU law. That would have a knock-on effect on the Northern Irish law, much of which is incorporated EU law. You could end up in a situation where, for example, you have equality and anti-discrimination protection as it applies in Northern Ireland being modified specifically by Orders in Council enacted by the Secretary of State as distinct from the devolved institutions in Stormont. That is precisely the potential concern.

Now, it is a complicated legal area. There are potential differences. UK Ministers have wider powers, or at least greater freedom, to amend EU law than they might have in respect of Northern Irish law, so there is a little bit of uncertainty there. However, in general, the picture is as you present it: that it certainly opens up the potential for Orders in Council to become used as a tool to amend and adjust Northern Irish equality and anti-discrimination law in potentially quite far-reaching ways.

Mr Nesbitt: There was also some uncertainty with some believing that we could end up with people in this jurisdiction having different rights depending on whether they are British or Irish. Now, last week, Dominic Grieve, said that he is not sure that there would be a difference. Am I to assume that, if the retained EU laws are not amended by UK Ministers, there will be no difference?

Professor O'Cinneide: Uh-oh. There are interesting complexities in all of this, which is, of course, lawyer speak for "messiness". When it comes to employment rights and equality and non-discrimination rights, EU law, if it is not changed, gives a certain level of protection against discrimination against people who classify themselves as Irish nationalist, ethnically Irish or however way you want to frame that identity basis; so do other elements of law, in particular the UK embedded legislation as separate and distinct from EU law. However, the overall effect is that, if things remain in place as they are at the moment — for example, if the protocol remains in force and the provisions of article 2 of the protocol relating to this remain in force — the legal situation will not change. Your classification as British or Irish will not be able to affect your employment status. To all intents and purposes, the anti-discrimination protection will kick in there, subject to certain complicated facets of immigration law — as highlighted by the DeSouza case, which you will be aware of — which I will not go into because they relate more to the immigration/employment law interface. However, in general, the existing state of affairs will minimise the possibility for discrimination to emerge based on British-Irish identity, British-Irish nationality or similar related facets.

Mr Nesbitt: On employment law — I have not thought this through to any great degree — if the UK Government were to change our employment laws in a way that the EU did not like, is it possible that it could impose something equivalent to the MacBride principles for trading with Northern Ireland, where it would say, "This will happen only if you impose and obey the following employment laws or regulations"?

Professor O'Cinneide: That is a very interesting question. For that to happen, you would, effectively, have to have a breakdown of the protocol mechanism. You would have to have the protocol mechanism effectively overruled by regulation or legislation subsequent to it coming into place. It is certainly hypothetically possible that the protocol mechanism could be overruled. Obviously, after four years, it might lapse and not be renewed. Then, it is possible to envisage a hypothetical scenario where UK non-compliance with what was in the protocol leads to a lessening of equality and non-discrimination protection and that generates political tensions resulting in some sort of movement for MacBride principles to kick in for Northern Ireland and the UK more generally. By that stage, you would be reaching quite a degree of a political meltdown in the EU/UK and Northern Ireland/Republic of Ireland relationship. That complicated relationship would have collapsed into a molten slag of tension at that point, not to be too dramatic about it.

You can certainly see that sort of scenario arising. Even before you get to that scenario, it would be quite easy to see heightened tensions arising from shifts and adjustments to equality and non-discrimination law introduced via regulation. You can see the tensions that have already materialised in relation to the Internal Market Bill, and the proposed adjustments that it makes to the protocol, which involve giving UK Ministers the power to override the protocol, as you will be aware. Those issues relate primarily to questions of state aid and the customs relationship between Northern Ireland and the rest of the UK. If you bear in mind the tensions that that has generated, it is easy to envisage a much heightened level of tension if it came to adjustments to the existing equality and anti-discrimination legal framework.

I realise that I am giving the Committee lawyer-type answers, and I apologise — it is the curse of my legal expertise profession. Basically, there are substantial advantages in keeping the ship steady as it goes; maintaining the existing quo and finding ways to lock it into some sort of bill of rights embedded framework. The more changeable the legal situation is, the rockier the waters might be, in unanticipated ways, five, 10 and 15 years down the track.

Mr Nesbitt: OK. Thank you. Finally and, perhaps, briefly, do you take a view on whether, if there is a bill of rights, it should come through Westminster or the Northern Ireland Assembly?

Professor O'Cinneide: That depends on what you want to achieve with a bill of rights. I am going to neatly bounce that question back to the Committee, because what you want to achieve with a bill of rights is a political decision. Obviously, legally speaking, if the bill of rights is to have any sort of embedded status within the UK and to have an impact on Westminster legislation, Westminster will probably have to be involved in the process. If the bill of rights is to play out solely within the scope of the devolved authority of the Northern Ireland Assembly, that is a different matter. Everything depends on what you want the bill of rights to do, and that, I am glad to say, is a political choice, not a legal one.

Mr Nesbitt: Nicely handled, professor. Thank you very much. It is appreciated.

Miss McIlveen: Thank you very much for your presentation. In my preparation for the session, I noticed that you had given a lecture entitled, 'Rescuing Human Rights: Against the New Minimalism'. You state that human rights are in a time of crisis, and you challenge a lot of the presumptions about a minimalist approach. By virtue of that, I assume that you are a maximalist. Is that the approach that you would apply to a Northern Ireland framework for a bill of rights?

Professor O'Cinneide: That is a very good question. In that particular lecture, I claimed not to be a minimalist and not necessarily to be a maximalist. I am certainly not a minimalist.

Miss McIlveen: OK.

Professor O'Cinneide: That is a very good question. Overall, on the bill of rights issue, I see clear advantages in attempting to build in a solid and tangible shore of rights protection and to give it some sort of embedded status — as embedded as can be done within the UK constitutional structure and the confines of the Belfast Agreement in general. The purpose of building in that structure is to avoid human rights issues in Northern Ireland, including equality and non-discrimination issues, becoming subject to the type of intense political disputes that we are seeing arise in the context of the protocol.

In fact, I think that the tensions around the protocol neatly illustrate the problem that many things could go wrong in the future, especially in the post-Brexit environment, and many of those issues have the potential to blow up and to become very destabilising very quickly. Personally, I think that there are clear political and legal advantages in attempting to quasi-embed as much of the legal rights and protections as you can, because that clears space, in a way, for political debates to develop. Let me be very frank: for example, debates about the protocol might be less charged if the protocol was not also carrying the burden of quite a lot of rights protection. Article 2 of the protocol covers equality and discrimination rights, and that is a big burden for an instrument that is primarily about state aid, customs regulation, maintaining an open border and so on. Human rights baggage is piled on to a legal mechanism that is already straining. It seems to me that the more you take that baggage off a mechanism like the protocol and put it on to some human rights or bill of rights specialist embedded mechanism, the less strain you put on the political system more generally. That is my perspective as an external observer. You would have more expertise on that, but I certainly see advantages in that regard.

Miss McIlveen: OK, but if you are looking at rights-based solutions, that will involve larger government and more spending and will, perhaps, create a situation where judges are much more involved in policy decisions, which then creates a situation where politicians are obsolete. It makes elections more challenging, as well, because you cannot make the change that you would perhaps like to make. From that perspective, how do you feel that it can be deliverable, particularly in the context of a devolved Administration?

Professor O'Cinneide: That is a very good set of questions. This may be where the minimalist and maximalist thing comes in. I think that it would be quite possible to design a bill of rights that did not radically judicialise many different aspects of Northern Ireland life. I think that it would be quite possible to have a floor of rights with a certain degree of judicial protection that would, as I said, in a funny sort of way, free up space for more political choice. That is precisely because, if you give legal protection to a certain set of issues and have a certain level of guaranteed rights, and you put those in the bill of rights box and say, "There is a certain degree of embedded protection there", in a way, that frees up debates to be had on everything else that is not in that box; whereas, at the moment, the rights issues are very closely interconnected with other elements. I keep on coming back to the protocol, because I think that the protocol illustrates this really starkly. Let us face it: with the four-year regular renewal mechanism, the protocol will be a constant subject of debate in Northern Ireland and between Northern Ireland and wider aspects of the UK, EU, and the Republic of Ireland, in general. The permanent political sore that the protocol is going to represent and the issues that it raises are amplified precisely because human rights, equality and non-discrimination issues are part of that package, and it complicates the political decision-making that is involved.

Yes, there is a potential judicialisation and potential legalisation effects are achieved when you put things away in a bill of rights box and have a certain level of judicial protection, but, at the same time, in a funny sort of way, that can free up politics to happen outside that space, as opposed to what happens at the moment, which is that the concerns about human rights and equality and non-discrimination rights tend to leak into multiple different aspects. That is what is happening with the protocol: debates about state aid and the customs relationship between Northern Ireland and the rest of the UK suddenly become charged with the extra freight baggage of all the human rights and equality issues being part of that debate; whereas, if they were in a bill of rights framework, the protocol debate would, frankly, be less charged, at least. That is a roundabout way of saying that legalisation and protection through a bill of rights framework, depending on how you want to frame that bill of rights framework, can, in a way, free up more space for genuine political debate and make it less charged and less do or die, when it comes to human rights issues.

As for cost elements, you could have a bill of rights that would not substantially load on additional state costs. I think that that could be engineered. Bear in mind, for example, that, when it comes to equality and non-discrimination rights, the key issue is almost to preserve what exists, rather than engaging in a wholescale, radical re-engineering of Northern Irish society to achieve a deeper equality and anti-discrimination vision. In a way, that is what I am talking to you about today. With a bill of rights framework, you may want to delve much deeper into the equality terrain, of course, but it would be possible to have a slightly less ambitious bill of rights, which would certainly get rid of or reduce some of the tensions that the Brexit process has currently generated.

Miss McIlveen: OK, thank you very much.

The Chairperson (Ms Sheerin): OK, Michelle. We will go to the members who are joining us via StarLeaf. I have Mark. [Inaudible.]

Mr Durkan: Thanks, Chair.

The Chairperson (Ms Sheerin): Hello.

Mr Durkan: Thanks, Chair, and thanks to Colm for the presentation, but no, I am fine; I have no questions.

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

Mr O'Dowd: Chair, the point that I was looking to make has been covered. Thank you very much for the presentation, professor.

The Chairperson (Ms Sheerin): Right, that is grand. Well, Colm, thank you very much for joining us today. Thanks for your contribution, and we can allow you —.

Professor O'Cinneide: My pleasure; thank you very much for having me.

The Chairperson (Ms Sheerin): Thank you.