Official Report: Minutes of Evidence

The Chairperson (Ms Sheerin): I welcome you all to the Committee this afternoon. On the call, we have Les Allamby, the chief commissioner of the Human Rights Commission (HRC); Éilis Haughey, the head of service to the dedicated mechanism EU withdrawal team in the Human Rights Commission; Geraldine McGahey, who is the chief commissioner of the Equality Commission; and Roisin Mallon, who is the director of the dedicated mechanism unit in the Equality Commission. I ask you to begin your briefing.

Ms Geraldine McGahey (Equality Commission for Northern Ireland): Thank you, Emma. Good afternoon, members, and thank you for the invitation to speak to you and to present some further evidence in the context of the Committee's consideration of a bill of rights and the implications of Brexit for human rights. As you said, Les and I are joined by the directors of our respective commissions' dedicated mechanisms units, Roisin and Éilis, who will assist us in answering any questions that members may have when we have finished our presentations.

As you know, we recently gave evidence to the Committee on how a bill of rights could help promote equality of opportunity and strengthen equality protections for people in Northern Ireland. As we previously made clear, we support the adoption of a strong and inclusive bill of rights, reflecting the particular circumstances of Northern Ireland. In our previous evidence and in our submission to the Committee in advance of this meeting, we also set out a number of recommendations that relate primarily to the impact of Brexit on equality and human rights. Our recommendations are made in the context of our role and remit under the equality legislation and through working with the Northern Ireland Human Rights Commission as part of the dedicated mechanism established under article 2 of the Ireland/Northern Ireland protocol.

Before elaborating on our specific recommendations, I thought that it might be helpful to the Committee if I started by outlining briefly the nature and implications of the UK Government's commitment under article 2 and the role that the commissions will play as the dedicated mechanism. Under article 2, the UK Government have committed to ensuring that certain equality and human rights in Northern Ireland continue to be protected after Brexit. In particular, they have committed to ensuring that the protections currently in place in Northern Ireland regarding the rights, safeguards and equality of opportunity provisions, as set out in the relevant chapter of the Belfast/Good Friday Agreement, are not reduced as a result of Brexit.

They have also committed in the protocol to ensuring that certain equality laws in Northern Ireland will keep pace with any future changes to EU equality laws, which are set out in annex 1 to the protocol. That commitment is a recognition of the importance and centrality of rights and equality protections in the Belfast/Good Friday Agreement and of the fact that the agreement has underpinned the peace process here. The commitment binds the UK Government as a matter of international law. In addition, the Northern Ireland Assembly or Executive cannot act in a way that is not compatible with that commitment. Both commissions have been given additional powers and responsibilities to ensure that the commitment is met, including providing advice to government and monitoring, enforcing and reporting on the ongoing implementation of the commitment.

On our specific views and recommendations on a bill of rights, we are clear that additional measures are required to better protect equality and human rights in Northern Ireland. That is particularly important in the context of Brexit, which has impacted on equality and human rights protections here. A bill of rights provides an opportunity to increase protection where existing law is inadequate and to strengthen the human rights protection afforded to the most vulnerable and marginalised in our society. It is therefore particularly important that consideration be given to how a bill of rights might strengthen equality and human rights in the context of the impacts of Brexit. The need for that consideration is also essential in the context of our previous recommendation to the Committee that a bill of rights should be fit for purpose for both the present time and for future generations of people in Northern Ireland.

I will turn now to some of the specific impacts of Brexit on equality and human rights. The Committee will be aware that EU laws, particularly on anti-discrimination, have formed an important part of the framework for delivering the guarantees on rights and equality in Northern Ireland. They have provided a minimum level of rights and protection, below which laws in the UK could not fall. Those EU laws have covered equality rights, as well as other important areas, such as employment rights of part-time workers and pregnant workers and the rights of victims. We remain concerned about the negative impact of equality and human rights as a result of the Charter of Fundamental Rights of the European Union no longer forming part of UK domestic law post-Brexit, including in Northern Ireland.

We do note, however, that the charter will continue to play an important role in the interpretation of the withdrawal agreement and the protocol. Nonetheless, we are of the view that the exclusion of the charter from domestic law, despite the retention of underlying fundamental rights and principles, has resulted in a weakening of the protection of human rights.

Furthermore, I draw to the Committee's attention the fact that there are important limitations to the UK Government's commitments under article 2 in respect of the continued application of EU equality and human rights standards in Northern Ireland. For example, the commitment to keep pace with any future changes to EU law applies only to the six equality directives that are set out in annex 1 to the protocol and not to other existing EU directives that provide rights for equality groups, such as the EU law relating to part-time workers or pregnant workers. In addition, the keeping-pace commitment does not cover future equality-related directives that may be introduced, except to the extent that they might result in changes to the annex 1 directive to those six directives. That means that, although equality laws in other EU countries, including the Republic of Ireland, could be strengthened to keep pace with future EU equality laws, Northern Ireland's equality laws may not similarly be strengthened and thus may fall behind. You will recall that I previously advised that Northern Ireland equality law already falls behind the levels of protections enjoyed by citizens in other parts of the UK. The situation could therefore be further compounded. We are also concerned that those areas of equality and human rights currently enshrined in Northern Ireland domestic law that are not covered by the non-regression commitment in article 2.1 could be subject to change.

We have already highlighted to the Committee our recommendation that a bill of rights should include a principle of equality. Including a principle of equality would be a recognition of the importance and centrality of rights and equality protections in the Belfast/Good Friday agreement and could also underpin Northern Ireland's equality legislation. We have already raised with the Committee the matter of the significant gaps in protection between equality law in Great Britain and that in Northern Ireland. People in Northern Ireland have less protection against discrimination and harassment in certain areas than people in Great Britain, including in areas relating to obligations placed on public bodies not to discriminate under anti-discrimination legislation.

We stress again that a key action that the Executive could take to enhance protection of equality and human rights is to update, strengthen and harmonise upwards our equality legislation, including to address those gaps in protection between Northern Ireland and Great Britain. Furthermore, in the light of the limitations of article 2 of the protocol that I have just mentioned, another key action that the Executive could take on areas that fall within their devolved competence is to ensure that Northern Ireland keep pace with all future EU laws that strengthen equality and human rights, including protections that enhance equality and human rights in the workplace.

We have also said previously in our evidence that we recommend that the Committee consider how best to ensure that international human rights standards, as set out in a range of international human rights conventions, including conventions that relate to the rights of women, disabled people, minority ethnic people and children, are reflected in the bill of rights and in any underpinning legislation. We have stressed the need for the Executive to take action to address those shortfalls in Northern Ireland so as to ensure compliance with the UK Government's obligations under international human rights conventions, including under conventions relating to women, disabled people and minority ethnic groups. Indeed, that is what you heard from the previous witnesses.

I hope that that overview has given Committee members a sense of our key concerns. I am happy to address any questions that the Committee may have on the points that I have made. I will now hand over to Les for him to speak to you on behalf of the Northern Ireland Human Rights Commission.

Mr Les Allamby (Northern Ireland Human Rights Commission): Thank you, Geraldine. I will make a few key points. Our starting point is to go back to first principles and the 1998 agreement. The bill of rights was designed to be part of the architecture to ensure a durable peace and also to be part of the recognition of the importance of human rights and equality in Northern Ireland's moving forward to a better future. Of course, the bill of rights was designed to go beyond the rights in the European Convention on Human Rights (ECHR) in order to reflect the principles of mutual respect for the identity and ethos of both communities, equality of treatment, the right not to be discriminated against and equal opportunity to be provided across both the public and private sectors. All of that was to be done while reflecting the particular circumstances of Northern Ireland. That is about recognising where we were in the Good Friday/Belfast Agreement and tying that by an umbilical cord to the present day.

Of course, a bill of rights was designed to sit alongside other provisions in the agreement, including enshrining the consent principle in any constitutional change and the recognition that the people of Northern Ireland should be able to identify freely as British or Irish, or both, without any adverse consequences.

Leaving the EU has rights consequences. Geraldine has outlined some of them. EU law is no longer supreme over that of the United Kingdom as it was under the European Communities Act 1972, but there are a significant number of exceptions in the main withdrawal agreement and other arrangements to leave, including the Ireland/Northern Ireland protocol, particularly in the single market and customs arrangements, and, to a much more limited extent, in article 2 of the Ireland/Northern Ireland protocol. As Geraldine outlined, we have lost the EU Charter of Fundamental Rights, which applies to issues of EU law in its current form, although we retained elements of it in the Westminster withdrawal agreement and, arguably, a greater element through the Ireland/Northern Ireland protocol.

Of course, there are the additional protections based on the 1998 agreement and the non-diminution of rights under the rights, safeguards and equality of opportunity section of that agreement. Those are important safeguards. We, amongst others, are the custodians of them through the dedicated mechanism, but they refer to only one section of the agreement and are not a substitute for a bill of rights. That is my first key point.

The non-diminution commitment has an element of keeping pace with certain EU directives, but the rest is about staying where we are. It must fall within the scope of one section of the agreement, and it must be rights that apply between the day that we voted to leave and the day that we left, so between 23 June 2016 and 31 December 2020, and any dilution or diminution of rights or loss of rights altogether must be as a result of leaving the EU.

A bill of rights therefore remains a legitimate piece of unfinished business in the 1998 agreement. Frankly, it comes into its own in times of political and economic instability. The commission and I understand that it must fall within the parameters of the agreement and that it must command support, first, among members of your Committee, Chair, and then beyond, ultimately to the wider public and eventually to the UK Government and to both Governments through their stewardship of the agreement as a whole. That will inevitably mean compromises, yet it must also mean that any bill of rights is meaningful and accessible in order to provide reassurance and clarity for everyone on their rights, regardless of where political and economic circumstances take us in the future. That is my second key point.

Like Geraldine, I am more than happy to take questions on the specifics of the dedicated mechanism, the loss of rights and the interaction between where we are and where a bill of rights might take us.

The Chairperson (Ms Sheerin): Thank you very much to you both and to everyone involved in the preparation of the presentations and for the written presentations that you provided us with.

We have met on different occasions, and I heard presentations from some of you on the other Committee that I sit on. A lot of this overlaps when we are talking about Brexit and its impact on rights for citizens here. We have been talking about the different formats for a bill of rights. You may have caught the earlier part of this afternoon's meeting, where I talked about a bill of rights being an accountability mechanism. One of the things that has been discussed is the idea of pre-legislative scrutiny and how that would prevent Governments constantly being dragged before the courts. I know that there is provision in the Good Friday Agreement for a Committee to assess compatibility with ECHR standards. When it comes to the Good Friday Agreement, we are talking about the bill of rights going further than the ECHR and furnishing citizens with additional rights. Can you give a perspective on that?

Mr Allamby: I will kick us off, Geraldine. In our 2008-09 advice, the commission recommended having pre-legislative scrutiny through a distinct Assembly Committee that would look at human rights issues. We went on to look at other kinds of enforcement. We preferred a method of inculcating enforceability through the courts but not with a separate human rights court.

I thought that the piece of work done by the Human Rights Consortium (HRC) recently was a really thoughtful and considered piece of work. It set out a number of options. One was pre-legislative scrutiny by the Assembly and how you might amend the ministerial code. It was one of five possible ways of looking at this such as including placing socio-economic requirements in specific legislation. There was also the suggestion of constitutionalising principles of economic and social rights, where the Assembly would have a principal responsibility to implement them. It also included progressive implementation, which is a quite common provision in international human rights standards, and some access to judicial review on, for example, the grounds of reasonableness, or incorporating economic and social rights into future free trade agreements. These are not mutually exclusive, and, to me, the idea of pre-legislative scrutiny makes immense sense. You have a Joint Committee on Human Rights in Westminster, for example, and it seems to me that early scrutiny of legislation is in everyone's interests. It is something that we endorsed years ago and that we still think has significant merit.

Ms McGahey: I will add something on pre-legislative scrutiny. Sections 75 and 76 really have set a minimum standard for that kind of scrutiny. Ministers, the Executive, Departments etc are versed in applying the section 75 criteria screening policies at very early stages. We would be keen to see some kind of a model developed whereby a similar process is applied that puts those requirements very much to the fore in the development of policy and legislation.

The Chairperson (Ms Sheerin): Thank you. Geraldine, you spoke quite extensively about how the North is in a rights deficit, and there is obviously no single equality Act. In the presentation, you talked about a bill of rights almost as being a means to have a harmonisation of rights, particularly in the wake of losing some of the rights from the EU Charter of Fundamental Rights. How do you see that working on an all-Ireland basis?

Yesterday, we listened to a presentation at the Executive Office Committee from Professor Colin Harvey and Mr Mark Bassett, who have done work on the EU, Irish unity and moving forward on a rights basis. We had a conversation about the change in the constitutional position being on the basis of increasing rights and bringing everyone up to the same standard. How would that work in the light of our exit from the EU and the fact that people in the North's rights now differ from those their neighbours a few miles down the road?

Ms McGahey: Equality legislation is my remit, and I am sure that Les will contribute on the human rights element. There is a recognition that equality legislation in particular lags behind in Northern Ireland. Having at a time been a province where equality legislation was very much to the fore, we now have drifted behind.

The introduction of the single Equality Act in GB has afforded many more rights and protections to citizens than we have here, particularly in relation to age-related goods, facilities and services etc. We also fall behind on race relations and discrimination on the grounds of race. The Executive have power to address some of those issues. The introduction of a principle of equality in a bill of rights will — or can, depending on how it is framed — provide a lens through which the courts will look at legislation and its interpretation with an equality focus. The power to make legislation lies here, with our Executive, and with Westminster. That is where it lies. I am sure that Les will have more to contribute.

Mr Allamby: Emma, that is a really interesting question and has some quite significant resonances. We did a lot of work with the Irish Human Rights and Equality Commission, including in discussion with UK Ministers and with officials in Brussels from the UK, the Irish Government and the Commission. As two commissions across the island of Ireland, we made the case for retaining the EU Charter of Fundamental Rights, because it would allow the idea of an equivalence of rights to be made more real. We felt that that was in the spirit of the Good Friday Agreement. In practice, our discussions foundered because the UK Government were clear that the agreement was about a South/North equivalence and not a reciprocal equivalence. From the text of the Good Friday Agreement, that is probably a tenable argument. However, it was one of life's ironies that, because the UK was already at an advanced stage of incorporating the European Convention into domestic law and the Irish Government were not at that time, but subsequently did, the notion was that South/North equivalence needed to be emphasised. We remain clear that it is not about having the same rights North and South. However, the idea of an equivalence of rights that makes sense between the two parts of the island would be significant and not out of tune with the spirit of the agreement as a whole.

Ms McGahey: Roisin Mallon, who has been doing some work in this area, might have something more to contribute to your point.

Ms Roisin Mallon (Equality Commission for Northern Ireland): Just some further points, thank you, Geraldine. As Geraldine has mentioned, the "keeping pace" commitment under article 2 applies only to the six annex 1 equality directives. For example, the EU's gender pay transparency directive is not covered by annex 1, which means that, should the EU press ahead with it, there would be no obligation for the UK Government to introduce it unless the EU made any changes to the annex 1 directives. There is also the work-life balance directive, which, as you know, has been passed by the EU but not implemented in the UK to date. That is also not covered in annex 1; there is no commitment to keep pace with it. If those directives become incorporated into domestic law in the Republic, then clearly, in certain areas, equality rights in the Republic of Ireland could become stronger than those in Northern Ireland. One of our recommendations is that it is open to the Executive to introduce equivalent rights in Northern Ireland, within their devolved competence on equality law, so they could decide proactively to keep pace even if there was no requirement by the UK Government under article 2 to do so. It might very well be the case that rights in the Republic of Ireland are strengthened because of Ireland's continued membership of the EU.

The Chairperson (Ms Sheerin): Thanks, Roisin. I have said this before, even at other Committees: an awful lot of the impact of Brexit on rights has not really been properly explored yet or recognised or realised by people. We have spent this entire period in the middle of a pandemic, when there has not been the same movement, but as we go on and as directives are employed by the Twenty-six Counties Government in the Republic, you have a situation where you could have a family living in a border region with one partner working in the Twenty-six Counties and living in the North or the other way around, and they are then operating on different levels. You could then start to see the real impact of that. Going forward, I would like to see a rights-based approach.

Thank you very much for your presentation, and apologies for taking up so much of your time with my questions.

Mr Nesbitt: Thank you all for your presentation. You have, to some extent, addressed the broad areas that I am interested in, which are the non-diminution obligation in the protocol, the commitment to keep in step with any advances that might be made by the EU and the jurisdiction of the European Court of Justice in Northern Ireland. Is there anything that Geraldine or Les can add in those areas?

Mr Allamby: With regard to access to the Court of Justice of the European Union (CJEU), there are still circumstances in the overall agreement where individuals will have access to the Court of Justice, so it has not completely gone. Under the article 2 provisions, if an individual came to ourselves or the Equality Commission, saying, "My rights, under the rights safeguards and equality of opportunity, have been diminished", and if we were to take a case to the court, it would be going to the domestic courts. Access to the Court of Justice of the European Union is not something that has survived our bit of the protocol, if you like.

On what may be behind the import of your question, yes, only Northern Ireland has to keep pace with those six directives. They are significant because they are covering equal treatment in employment and social security, in access to goods and services, in self-employment and in freedom from discrimination on racial and ethnic origin. First of all, of course, the EU must decide to go further than the UK. There is nothing to stop the UK going further, but it is confined to keeping pace with those. The rest of the article 2 commitment is about not diminishing the existing rights that were in place on 31 December 2020.

I do not know whether that is helpful in terms of access to the Court of Justice etc.

Mr Nesbitt: Yes, that is helpful, Les. So there are kind of limited protections?

Mr Allamby: Yes, they are limited. They are important, and they emphasise where the 1998 agreement is important, but the idea that they are all-embracing and that somehow we do not need to think about a bill of rights, which is the point I was making —. They are not our bill of rights and should not be our bill of rights. They would be a very, very poor substitute for what a bill of rights could potentially do in terms of what a bill of rights was, I think, designed to do in the agreement.

Mr Nesbitt: OK, thank you.

Ms McGahey: I made reference to the limitations of article 2, and I think they are significant. As issues arise over the coming period and the courts interpret those situations, I think that we will have a lot more

However, I think the

six directives is leaving us quite vulnerable in terms of how that legislation could change from either our own Executive or Westminster. That is a vulnerable

Mr Nesbitt: How do we cover that in a bill of rights, Geraldine?

Ms McGahey: Through the principle of equality and taking the opportunity to strengthen our equality legislation. Harmonising it upwards with that in the rest of the United Kingdom would be a good starting point. A principle of equality in the bill that applies a lens through which the courts will interpret other legislation is

That is something that the Commission continues to explore, and we will be in a better position to come back to you with more specific information on what our views are and how they can be defined. It is all about how the principle can be framed in a bill of rights.

Mr Allamby: Sorry, Mike, I will very quickly add to that. You have an example. The Commission's view has always been that there should be a free-standing right of equality, unlike the convention where you have to tie freedom from discrimination to the ambit of another right. The fundamental charter was very good at recognising equality between men and women, for example, and still allowing and recognising that positive action can be taken. There are some models on how you can do that.

Mr Nesbitt: Would it be useful, then, to do two things in a bill of rights? First, on the substantive rights, which we are nailing down in, to use the current phrase, a granular way, you would have specific rights and remedies. Secondly, in the preamble, you could make it clear that you want rights to evolve as our understanding of the environment changes.

Ms McGahey: How the bill of rights is framed is very important. In my own personal view, being very specific can limit how the bill of rights is interpreted and affect its longevity. It becomes difficult to change the bill of rights at a later stage, so how it is framed and what its purpose is needs to be very clearly defined at the beginning so that it has longevity

the need to reframe it, if that makes sense.

Mr Nesbitt: If you were talking about the who, what, when, where and why of rights, the "why" would belong in the preamble, which is where you

it. Everything else is, to use the phrase again, more granular in the

Ms McGahey: Yes.

Mr Nesbitt: That is useful. Thank you.

Ms Bradshaw: Thank you, panel, for coming this afternoon. I have two questions. The first one is on the commitment to the non-diminution of rights under the protocol. There is an emerging body of opinion — it has been touched on at this Committee several times — on the inclusion of environmental rights. Obviously, a lot of people who were against Brexit are very concerned that we will not be able to keep pace with the evolving legislation and protections at the EU level. To what degree should we use this opportunity to tie those together in our bill of rights?

Ms McGahey: Les, do you want to address that?

Mr Allamby: Yes, thanks, Geraldine.

I struggle to immediately see how the non-diminution of rights, safeguards and equality of opportunity would provide very significant safeguards on environmental rights. Remember, our application of article 2 means that it must be somewhere within that section of the Good Friday Agreement. If you go back to the EU Charter of Fundamental Rights, there are one or two lines, from memory — I am not quoting verbatim — about the right to something along the lines of the highest standards of environmental protection. That only applies in conjunction with EU law rights, so there are examples of how you can build in protection for environmental rights, either within the charter or from other international standards, but I do not think that you are going to find protection for environmental rights falling easily within the scope of non-diminution. No doubt, someone may come to us and say, "Here is a bit of the agreement that we think can be tied to environmental rights", but it is not obvious or easy to discern how you could do that.

Ms Bradshaw: OK. Thank you. My second question is for you, Geraldine. It is in relation to paragraph 4.4 of the paper that you submitted:

I lead on health for the party, and I am interested in health outcomes. To what degree could a bill of rights go beyond equality of access to public services and focus more on equity of outcome? Everybody can go to school and everybody can access the health service, but if there is equity of outcome, that allows you to skew resources or put up particular provision for, for example, the transgender community. I am wondering about a move more towards equity, as opposed to equality, of opportunity.

Ms McGahey: I take your point. We are still examining that in detail, but, in terms of the inclusion of a principle of equality, we are looking at a statement that everyone is equal before and under the law and that they have rights and protections and equal benefit of the law, including the full and equal enjoyment of all rights and freedoms. It could make clear that individuals should not be discriminated against across a range of equality grounds. You are moving away from the pure interpretation of equality into the equity of the outcome, much in the way the Programme for Government has moved away from very specific indicators to outcome-based analysis. That will evolve. We have not been looking at that specifically, and I am not sure that we have come across, in any of our studies of other constitutions, a framing of a bill of rights that addressed that equity issue, but we will continue to look at that and, if we do find it, we will be happy to come back and share our information with you. Les, Roisin or Éilis might have something to add to that.

Ms Mallon: One option is to look at an equality principle that could be framed in terms of more substantive equality of outcome as opposed to an approach that is simply a declaratory principle that states the status quo, so to speak, and does not really go beyond current levels of protection to increased protection. There are examples from other constitutions whereby countries have sought to go beyond the status quo and to increase protection through an equality principle. For example, the South African constitution clearly states that states may not discriminate directly or indirectly on various grounds and that legislation must be introduced in an effort to prevent discrimination. That is one model, and other models are more broad, general statements in terms of equality before the law. There are a range of different ways to frame an equality principle, and, as Geraldine said, we can come back to the Committee in more detail on that, if that would be helpful. Certainly, one option is framing a principle so that it is framed in a way of substantive equality. Hopefully that is helpful, Paula.

Mr Allamby: Paula, I have one thing, and we will then see if Éilis wants to add anything. International standards, particularly economic and social rights —. With the concept of progressive realisation, you are, in effect, on a journey towards the rights being fully implemented. There are ways in which you can talk about duties around making the maximum amount of resources available. There are things that you can do that are not quite equity but are a recognition of the fact that, economically and politically, some groups and individuals have more power, and therefore more access, than others. There are principles of international standards that can be drawn on, as well as looking at what other bills of rights have done in practice.

Ms Bradshaw: I suppose that you are right. It is a term that we have grappled with from the start, and it is more about a very clear intent that we want a more equitable Northern Ireland — our country — as opposed to saying that we will have it some time in the future. It is about a push from the start to show that this is a clear intent from the Executive and the Assembly. I appreciate that. Thank you very much.

The Chairperson (Ms Sheerin): Thank you to the presenters. Following on from what Paula said, when I was speaking to the RaISe presenters earlier, I was thinking about how equality and our perception of equality have evolved. Equality of opportunity is no longer just about everyone being treated the same; it is about acknowledging that people's particular circumstances or characteristics mean that, although they have the same equality of opportunity on paper, they do not actually have it, and that therefore the outcome has no chance of being the same. I think that that is an important distinction to make, and I agree with the sentiment of what Paula said.

No other members have indicated that they want to come in so, unless, anyone has any closing comments, I will just thank you again for your presentations and for your time this afternoon. Thanks for answering all our questions and for taking the time.

Ms McGahey: Thank you very much, Emma. Thanks to the Committee.

Mr Allamby: Thank you. Good luck in your deliberations.

The Chairperson (Ms Sheerin): We might need it.