Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): I welcome to the meeting Ms Alyson Kilpatrick, who is the chief commissioner at the Northern Ireland Human Rights Commission (NIHRC); Dr Colin Caughey, who is the commission's director of policy; and Dr Claire McCann, who is also from the commission. Thank you so much for attending. It has been a busy week for you, going up and down the road to and from Parliament Buildings, but we really appreciate your time today and your efforts in providing us with a submission to our inquiry. Alyson, I invite you to make some opening remarks.

Ms Alyson Kilpatrick (Northern Ireland Human Rights Commission): It is always nice to be here.

The Chairperson (Ms Bradshaw): Thank you.

Ms Kilpatrick: Thank you for giving us another opportunity to address the Committee. We welcome the inquiry, because it will reinvigorate the debate on equality law reform for Northern Ireland. We specifically welcome the Committee's focus on recommendations from international treaty bodies.

The commission published its annual statement on human rights on Monday. It includes a chapter on equality and non-discrimination. In it, we have said, and we repeat again today, that the principle of equality is central to understanding human rights. Article 14 of the European Convention on Human Rights has been incorporated into UK law by way of the Human Rights Act 1998, and I will read it out, if I may. It is quite short.

The Chairperson (Ms Bradshaw): Please do.

Ms Kilpatrick: Article 14 states:

The phrase "other status" has been interpreted by the courts as being broad.

At the international level, the right of equality tends to be defined in open-textured terms. The central international human rights covenants simply refer to an obligation on states to ensure human rights without "distinction", "discrimination", "exclusion" or "restriction", or "on the basis of equality" as between men and women. That has since been elaborated on. The Office of the UN High Commissioner for Human Rights (OHCHR) has made clear that international human rights require transformative equality in society, culture, politics and the economy.

The UK Government and the Northern Ireland Executive should ensure the adoption of comprehensive anti-discrimination and equality legislation that contains a clear definition of discrimination that comprises direct, indirect and structural forms of discrimination, covering all fields of law in public and private domains and all prohibited grounds of discrimination, in accordance with the relevant treaties. A single equality Act for Northern Ireland that ensures that intersectional, multiple-discrimination claims in Northern Ireland are addressed is required. I suspect that we will go into that in a little more detail.

Although legislation in Northern Ireland that prohibits age discrimination in the areas of employment and occupation, further and higher education and vocational training, there is no specific equality legislation prohibiting discrimination based on age in the provision of goods, facilities and services in Northern Ireland as there is in GB. That is one of the differences. We therefore recommend that equality legislation be extended to protection in the provision of goods, facilities and services to all children under the age of 18. Age discrimination, of course, applies at both ends of the age bracket. The commission encourages the Committee to consider not only which law reforms are required but how their implementation can be supported. As Committee members have said before, it is often the implementation that is most critical.

Committee members know that equality is central to the "no diminution of rights" commitment in the Windsor framework. That is largely a stand-still obligation, linked to relevant EU law as it stood on 31 December 2020. It covers only that EU law that underpins the rights, safeguards and equality of opportunity part of the Belfast/Good Friday Agreement. In September, the Northern Ireland Court of Appeal confirmed that the relevant part of the agreement contains a broad suite of rights. Along with colleagues in the Equality Commission for Northern Ireland (ECNI), the commission has identified a number of EU measures that underpin those rights. Those are set out in various bits of advice. There is also an obligation for Northern Ireland law to align dynamically — keep pace — with changes that amend or replace the six equality directives listed in annex 1 to the protocol on Ireland/Northern Ireland, where those changes strengthen rights.

We have highlighted in our submission recently adopted EU measures, such as the pay transparency directive, that will require Northern Ireland law to be amended to reflect the changes. We can discuss those today or on another occasion.

The obligation to keep pace with the six equality directives in annex 1 means that case law of the Court of Justice of the European Union (CJEU) is relevant in interpreting. It is therefore essential that the Executive and Departments monitor case law developments for updates on how directives are to be interpreted. That is also a task of ours that we continue to do. To assist the process of the Equality Commission, on our behalf and that of the Irish Human Rights and Equality Commission (IHREC), we have commissioned research to track EU developments in human rights and equality. Our first report was published in 2022, and, last month, we updated it and published a new report. It highlights key case law of relevance to the equality directives. For example, the Court of Justice held that the definition of disability discrimination in the equality framework directive, which is specifically listed in annex 1, should include discrimination between persons with disabilities. Northern Ireland law must therefore be interpreted in line with that decision. If one thinks about it for any length of time, one can see exactly why it should be interpreted in that way.

Outside of the six core equality directives in annex 1, there is no obligation for Northern Ireland law to track EU developments. There is, however, potential for equality and human rights on the island of Ireland to diverge, following the UK's withdrawal from the EU. Prior to 31 December 2020, EU law facilitated the alignment of many laws on rights and equality between Ireland and Northern Ireland. That is set out in more detail in our written submission. We take the view that long-term North/South equivalence of rights was envisaged by the Belfast/Good Friday Agreement. It is important for the enjoyment of rights on a cross-border basis and for access to island of Ireland and cross-border services such as health, which is an obvious one.

It also supports North/South cooperation, in line with article 11 of the Windsor framework.

There is, of course, also the possibility, even if it is not required under the Windsor framework, that the Northern Ireland Executive can voluntarily ensure that NI law aligns with changes to EU equality and human rights law, where those changes strengthen rights and reflect international human rights standards.

That was a very quick overview — I spoke very quickly to try to get through it — of what is set out much more comprehensively in briefings and in advice that we have published. We will do our very best to answer your questions. I know that we are short of time, but we can elaborate on the issues raised or address other issues on which I have not touched.

The Chairperson (Ms Bradshaw): Thank you, Alyson. Will either of your colleagues speak at this point?

Ms Kilpatrick: No.

The Chairperson (Ms Bradshaw): OK. Thank you so much.

I will pick up on the issue of the potential to keep pace. You have recommended that the Executive Office, pursuant to articles 2 and 13 of the Windsor framework, introduce legislation to amend Northern Ireland law to ensure that it keeps pace with the provisions in EU directives on standards for equality bodies. How difficult, or how intense, would it be to do that? Would doing so be quite a simplistic, straightforward process?

Ms Kilpatrick: I will not have to do it. I think that it will be relatively straightforward. I wonder whether Claire McCann, who is our everything post-Brexit and dedicated mechanism expert, wants to say something about that.

Dr Claire McCann (Northern Ireland Human Rights Commission): I will say, first, that our colleagues in the Equality Commission are leading on that work, so they are probably best placed to advise on the specificities of it. What the equality body standards do is create improved and strengthened protections for equality bodies in Northern Ireland, including the Equality Commission. Given that they amend all six of the annex 1 equality directives, there is an obligation under the Windsor framework to update Northern Ireland law to reflect that. As yet, we have not done an analysis, on a cause-by-cause basis, of what that would require, but I understand that colleagues in the Equality Commission are working on that. We will share that analysis as soon as we can.

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

Ms Kilpatrick: It may be worth adding that, as far as the standards to which equality bodies are held in other countries are concerned, we fare pretty well.

The Chairperson (Ms Bradshaw): You talked about transformative equality. I suppose that we are looking at the gaps, but we are also trying to pick up on the areas in which we have fallen furthest behind in some ways. Our go-to in Northern Ireland is probably section 75 and its protected characteristics. Are there any sections of society that could really benefit from our prioritising efforts to update the law?

Ms Kilpatrick: Children, given that they are not specifically protected, other than through employment and education. The LGBTQI community is not a homogeneous community, but there are identifiable issues that are unprotected in Northern Ireland that receive greater protection in GB. I would still say women, when violence against women and girls is at such an epidemic level. Even though women are equal in a lot of other respects, they are not equal in the criminal justice response to violence. Again on gender, there is women's health. I understand that some work was done on a women's health strategy. That should write into provision the need to reach equality of outcome as well as equality of access.

I am afraid that, across Europe, disabled people do not have the protection that they deserve, but that is not necessarily owing to an absence of law — none of those things is — but owing to an absence of the application of law or perhaps even just because of the community's mindset. We would say that, if you get that mindset right, every single person is equal, not the same. To make them equal, some people therefore need more of something and perhaps less of another thing. There is nothing unequal about that. You try to bring everybody up to the same level. Once you start looking at it like that, and you look at people and ask what it is that they need in order to be equal, you could probably expose all sorts of groups and individuals who are not yet equal, as a group of people, compared with those in other places. That is my answer. Do you want to add anything, Colin?

Dr Colin Caughey (Northern Ireland Human Rights Commission): One of our specific recommendations is on the incorporation of protections from intersectional discrimination, which, in a way, would resolve that question of the specific group. If there were protections from intersectional discrimination, those would address the majority of us, who have multiple identities and are members of multiple groups.

Further to Alyson's answer, we highlighted in our submission the fact that there is an absence of numerous strategies for those specific groups. The fact that those strategies have not been developed and put in place is hindering our ability to see where law reform is required and where, simply put, more effective policies and procedures are required in order to ensure that individuals can enjoy their rights on an equal basis with others.

The Chairperson (Ms Bradshaw): We encountered that last week in the context of minority language rights and associated strategies. A lot of that sits with the Department for Communities, but we do recognise the issue.

I was going to come on to the point about intersectionality. This will be my final question before I bring in the Deputy Chair. Last week, we held a stakeholder event in the Long Gallery. As I roved between the tables, I heard similar issues, regardless or whether they were raised by, for example, disability or religious groups. The event was about everyday people's understanding of their rights: where they should be being treated equally and where they are not being treated equally. How could that be manifested as a presentation that you feel that wider society could grasp?

Ms Kilpatrick: There is an awful lot more work to do on education and promotion, as well as on understanding what human rights are about. On human rights, there is now such a counter-narrative across the globe. That is not particular to here. People genuinely feel that their rights are not protected, because they have been told that their rights are not protected or that they have been singled out and have less of something because somebody else has got human rights. It is about finding a way in which to explain and to reach people in the life that they are living at the minute. It must cover how rights apply to such things as housing and health and counter some of the myths. That does not sound easy to do. It is easier for me to say it than to do it.

I can speak only about the time that I have been with the commission, but one difficulty that the commission has had in that time is that it has not had a budget for promotion and education work. We go out to schools. We engage with children across schools, with businesses, with human rights organisations and with sports organisations, but so much more needs to be done. It takes a lot, in the initial stages, to convert information that is legal and dry into something that people really get. It does more harm than good if we just sit and read out treaty provisions to them. We have to be able to translate that information in order to get across to people how it affects them. We also have to hold our hands up at times and admit that it is not yet perfect out there, by no means.

The Westminster Government are currently very keen on the promotion agenda. They have asked how we can feed into that. The commission has had an internal review and undergone an independent review, which, I think, recognised that we need more money for that side of our work. Claire wants to say something about discrimination.

Dr McCann: I was going to follow up on the point that Colin raised about intersectionality. I am sure that Committee members are aware that, under the keeping-pace obligation, pursuant to article 2 of the Windsor framework, the pay transparency directive specifically mentions intersectionality. Northern Ireland law will therefore need to be updated to reflect that requirement by the transposition deadline of June 2026. There is a specific legal requirement that derives from that obligation.

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

Mr Dickson: Thank you for your presentation and for the information with which you have provided the Committee. I have questions on a number of areas.

There has been a lot of talk from political parties and key players such as you about the provision of single equality legislation for Northern Ireland that draws together all the disparate equality legislation, on which we then build. Where are we with developing that? What input have you had to the Executive Office's work to help build that Bill?

Ms Kilpatrick: The Equality Commission is leading on that. There is, however, the non-discrimination article in the European Convention, which is an umbrella provision for all equality, so, for everything that we do, we look at that.

We have not been asked to advise specifically. We have made recommendations that the provision of real equality would be assisted by having one piece of legislation, because, at the minute, the legislation is fragmented and complicated. I do not know how anyone who is not a lawyer gets their head around it, when even some lawyers cannot. That legislation would be accessible to the public, so they would know what their rights are. It would also present an opportunity to bring together the legislation, as well as being helpful for leaders and decision makers to understand how all the respective bits work together. You could update provisions on age discrimination and suchlike. Other than recommending that, we agree with the Equality Commission's recommendations. It has taken the lead on that.

Mr Dickson: We have a requirement to keep pace. Bearing in mind the glacial speed of the Executive Office to do anything, how confident are you that we will be able to keep pace?

Ms Kilpatrick: It will first depend on whether there is a will to do so. I am not as concerned about the legislative Assembly's pace of working as I am about the will to identify that with which we need to keep pace. I am not being pejorative towards anyone or any party in particular. It is just that an awful lot is coming out of the EU. We have a department that does routine scans to try to keep on top of what everything means and what needs to be done. On many occasions, however, we have identified that proper attention is not being paid to article 2 of the Windsor framework in policy or legislation. When any policy or legislation is being developed, somebody really needs to sit down and think, "What does that mean for article 2 of the Windsor framework?". We also need to keep on top of the EU provisions. We have very good relations with the EU, in that it tends to notify us of certain things. It might not do that as much as we had hoped, but it is about keeping on top of everything and knowing what has to be included. We would love to do more.

Mr Dickson: Is it a resource issue? In a sense, is it a consequence of Brexit? When we were in the EU, the national Government translated, transposed and delivered all of that for the whole United Kingdom. Although, on the one hand, I have some criticisms of the speed with which the Executive Office works, on the other hand, is it unfair and unreasonable to expect it to keep track of all of that without having the adequate resource to do so?

Ms Kilpatrick: It is quite a challenge for the Executive Office. I have a degree of sympathy for it. When we were part of the EU, a lot of the legislation did not have to be transposed, because it was directly effective.

Mr Dickson: Yes. It was directly effective.

Ms Kilpatrick: There is definitely a resource implication. Claire might speak to that, because she works directly in that area.

Dr McCann: We are mindful of the fact that there is a huge amount of work involved in tracking what is going on. As Alyson said in her opening remarks, our colleagues in the ECNI have led on that work. On behalf of the Irish Human Rights and Equality Commission and us, it published two pieces of research that tracked some of that divergence between Northern Ireland and the EU standards that are coming down the track. It continues to identify those measures. We will undertake further research to identify developments in that area. It is a huge area of work, however. That having been said, a lot of the areas of law were devolved areas, and they required Northern Ireland to transpose them into Northern Ireland law, but the obligations are on the UK Government. Our avenue is to speak to you at Committee, to other Members and to Ministers about the importance of giving effect to those obligations in our legal framework. We will also communicate those obligations to the UK Government and the Secretary of State, because they are relevant to them as well. It is not just on the Committee or the Executive. We make the same arguments to the UK Government.

Mr Dickson: Although it has left the EU, it is important that the United Kingdom does not turn its face away from it responsibilities and that it instead recognises them. To do that requires adequate resource.

You also referred to women's issues as being one of the areas in which we have perhaps started to fall behind. It is interesting that the House of Commons Women and Equalities Committee has just published a report on misogyny in the provision of medical services for women. To what extent do you believe that that issue affects women in Northern Ireland? I certainly intend to table questions to the Department of Health, as it is an important issue, and one that needs to be tackled. Do you have any comment to make on that?

Ms Kilpatrick: I will let Colin say something about an attempt that we have made to carry out research on that and look into it more carefully. The difference is surprising: there is a divergence in health protections between men and women, and it goes back centuries. An awful lot of the health system is based on men and on men's bodies, even just on their shape, size and weight: vaccinations and all sorts of other things. That has never really been addressed. When we talk about it, there is sometimes a danger that people will say, "If you believe in equality, you should accept that men and women are human beings, with the same organs, so women do not need any special treatment", but that is exactly what has not happened. We have therefore reached a stage at which we have to redress that. Colin, I will let you say what is happening with our research.

Dr Caughey: We are looking into women's health and have been engaging with the Department of Health on its plans to develop, or not to develop, a women's health strategy. We are keen to explore how our system needs to be reformed and developed to ensure that it meets women's health needs so that we can update the Committee. I am not familiar with the report that came out today, but I am happy to review it and come back to the Committee specifically on it, if that is OK.

Mr Dickson: Do we currently have a women's health strategy?

Ms Kilpatrick: No.

Mr Dickson: That is essentially what the House of Commons Committee stated in the report.

Mr Kingston: Thank you for your attendance today and for your submission. I will explore the potential consequences of some of what you are calling for and the safeguards and mitigations that you will or will not recognise as being applicable. Recommendation 2.11 in your submission refers to the provision of goods, facilities and services. We have heard quite a lot from older people's groups on that issue. You highlight the fact that some goods are not permitted to children under 18 years of age. Some goods, such as alcohol and tobacco, are not permitted for children. There is also a need to protect children from some influences, although they may have their own views on that. The Minister of Education recently raised the issue of children having access to their mobile phone during school class time, but there are also issues such as pornography and gambling, both of which are available on the internet. What things do you recognise as being illegal or undesirable for children to have access to?

Ms Kilpatrick: It is easy to deal with what is illegal. If something is illegal for me, it is illegal for a child.

Mr Kingston: Some things are illegal only for under-18s.

Ms Kilpatrick: Yes. It is illegal only to provide them to a child, I think. I am not sure that a child would necessarily face criminal conviction for buying cigarettes, for example, but I do not know. I would need to ask a criminal lawyer about that. The point is that there are limits to all our freedoms. Society has decided that certain things are dangerous for a person who is under 18 in a different way from how they are dangerous for those who are over 18, or, at the very least, society has decided that somebody who is over 18 can take a calculated risk.

You have to balance a lot of those things. I will not pretend that there is an easy answer to some of the stuff. In fact, we were having a philosophical debate about it earlier. Who gets to decide exactly at what age something is permitted? The point to make is that we start from the basis that, all things being equal, everyone is entitled not to be discriminated against in the provision of goods and services unless there is an objective justification for doing so that is proportionate. In the case of cigarettes, alcohol and so on, that is a proportionate interference with the child's right.

Mr Kingston: I can see that there could be debates about what is permitted for a range of issues, although you recognise where the law applies.

Ms Kilpatrick: Completely. So much of this is politics, which is not for us. We accept that the legislature gets to have such debates, and democracy often gets to decide where the balance has to be struck. As long as it is lawful, necessary and proportionate to do so, you can limit rights. Right now, my rights are probably limited to some extent when it comes to what I can go and do after I leave here. It is similar with children's rights.

Mr Kingston: OK. Recommendation 2.13 refers to gender identity, which is a topic of much public debate. It states that we need:

What is the commission's position on female-only protected spaces in society, including not only in sport, which has become a topic, but in prisons and in certain care settings, and on female-only groups such as girls-only schools or youth organisations such as the Girl Guides? The same question applies to boys-only organisations.

Ms Kilpatrick: There is a whole range of ways in which you could look at those issues, depending on which you are talking about. Of course, the law now states that if somebody has a gender recognition certificate, they are treated for all purposes as being of the gender recognised on that certificate. A trans woman would therefore be entitled to access a woman's space.

In prisons, all sorts of risk assessments are carried out as to who is put together in any one cell or on any one wing of a prison. For example, a white nationalist woman could be a danger to a Muslim woman in a cell with her. Those are issues on which other people are better equipped to decide.

If what you are really asking is, "What is gender, and what is sex? Is it determined at birth or not?", that is not something on which we have a position. We follow the European standards, and they are not as clear as I wish that they was. I wish that somebody else would tell us where the lines are. It is, however, certainly unlawful to discriminate against somebody. That does not mean, as I said earlier, that everyone gets treated exactly the same, so you can apply restrictions.

Sport is difficult, particularly because most people refer to elite sport, which is very different from kids playing or doing PE together at school, or from even adults playing sport at university or at work. With elite sport, it is more difficult. A lot of medical evidence is developing, and a lot of the guidance is changing. In short, I do not know the answer. I wish that I could tell you what the black-and-white answer is, but I cannot.

Mr Kingston: I do not deny the complexity of the issue. The problem is that, when things become law, without there being mitigation measures in place, there are consequences, whether intended or not. I want to stand up for female-only spaces in society. There is a need for them, and for good reason.

Ms Kilpatrick: It is a balancing exercise. What we talk about in making the recommendation is discrimination on the grounds of sexual orientation or gender identity. Nobody would say that anyone has a right to discriminate against anybody else, whatever the reason. How "discrimination" is defined is really important. Not everybody should be treated exactly the same, but that does not mean that they are discriminated against.

Mr Kingston: When National Lottery funding first started, single-gender groups found that they were being excluded, because the lottery could not fund a group that provided only for boys or only for girls. I am not sure what the up-to-date situation is.

I have just one more —.

Ms Kilpatrick: Not for a second will I pretend that this is easy.

Mr Kingston: I have one more question, Chair. I want to ask about recognition of the religious values of Churches and other faith-based groups. When something is a faith-based value, do you agree that there needs to be recognition of that in legislation? For example, if Churches have a position on same-sex marriage, they should not be persecuted or prosecuted?

Ms Kilpatrick: I would not even try to argue against that. You would not persecute somebody who has a faith-based objection to something.

Mr Kingston: OK.

Ms Kilpatrick: It is about how we define persecution.

Mr Kingston: Or prosecution, more to the point.

Ms Kilpatrick: Once you get into the actual application, it gets a lot more —.

Mr Kingston: You would recognise that, however?

Ms Kilpatrick: Absolutely, as does the European Convention. There is a free-standing right in the convention for people to express their religion. It is written into, for example, a child's right to education. There is also a right for parents to have their child educated according to their religious ethos. Again, it goes back to striking a balance. A parent does not have a right to deny a child all education. That is where society and politicians like you often get to decide where that balance lies. I absolutely agree that people's ability to express their faith is absolutely core to their belief. I would not seek to argue the other way.

Mr Gaston: Thank you very much for coming today and for providing your submission, which has been very useful. It is the information that you have provided on which I will touch.

Paragraph 2.12 on page 12 of your response states:

In your eyes, at what age can a child identify as lesbian, gay, bisexual or transgender, or even be classed as straight?

Ms Kilpatrick: Thankfully, it is not for my eyes to determine that at all; it is for others. That recommendation does not have anything to do with that. It is about protection against bullying, harassment and discrimination, which, as I said previously, no one would condone against a child, for whatever reason. You are asking much more philosophical, maybe even medical, questions that I am not equipped to answer. My personal belief is neither here nor there. At the commission, I do not have the luxury of acting on my personal beliefs or convictions. I look at the European standards, and that is simply what the United Nations Convention on the Rights of the Child (UNCRC) committee "noted".

Mr Gaston: I am interested in building on what you have in your response to understand when that committee believes that a child can classify as gay, straight, lesbian, bisexual or transgender, because that goes to the heart of the matter. It seems that there are those who want to sexualise children at a young age. The age of consent is 16. Why make this an issue for children under 16?

Ms Kilpatrick: I am not sure that it is talking about children under 16 in particular.

Mr Gaston: That is the age of consent. Once a child passes the age of 16, they will be classed as a young adult. When it talks about children, it is obviously talking about children under the age of 16.

Ms Kilpatrick: It is talking about children up to age18. It defines a child as anyone up to the age of 18.

Mr Gaston: It could be anybody. It could be somebody in primary school.

Ms Kilpatrick: It could be anybody up to the age of 18. It could not be anybody else.

Mr Gaston: Yes. My concern is that it is in your briefing paper. That certainly concerns me.

Ms Kilpatrick: It is in the paper simply because it is a factual situation: that is what the United Nations Committee on the Rights of the Child said and the recommendation that it made. It does not recommend an age at which to accept the capacity of a child to identify or to tell you what they are feeling. There is evolving capacity. The issue of whether you can decide whether you are gay is a whole other debate that I will not have today, because that is not for me. If a person who is gay is under the age of 18, the UNCRC committee has said that they have been subjected to bullying and harassment and should not be, and that is what that recommendation is about.

Mr Gaston: Paragraph 2.13 states:

Surely, however, discrimination is already illegal. What further protections do you want to see put in place?

Ms Kilpatrick: Discrimination is not illegal. If I discriminate against somebody on the grounds of their being gay, that is not illegal. It depends on what you mean by illegal. Do you mean criminal?

Mr Gaston: Going against someone because of their sexuality. You cannot take that into consideration.

Ms Kilpatrick: It is only very recently that the law came up to date to protect people specifically from discrimination on the grounds of sexual orientation or gender identity, but it is not illegal to do so. You may face a consequence of your action. If I were cruel to a dog, I would face a consequence of my action. That is all that it is. The law around discrimination is that, if you discriminate against somebody, you will face the consequence of your action. It is not yet a criminal consequence unless you are doing something that is also criminal: for example, if you assault somebody.

Mr Gaston: At 2.16, the commission recommends:

Do you recognise that there is a conflict between female rights and calling for action, as you have done, on so-called gender identity?

Ms Kilpatrick: I would not put it as bluntly as that. There is a big grey area in the middle, and I confess that I do not know the answer to all the situations that arise in that area. Having analysed the objective standards and which discrimination is prevented and which discrimination is not, I do not feel that that pitches women, as you are describing them, against others. I do not think that they are in competition with each other at all. We are talking about discrimination. As I said, there are people with much bigger brains than mine who are still trying to work out what we do in that area in between. There can never be a reason to discriminate against somebody, and that is what we are talking about.

Mr Gaston: Surely, the starting point is that a woman going into a women's toilet needs to be protected if it is a women-only toilet. There is no grey area in that. A woman needs to feel safe going into a women's toilet.

Ms Kilpatrick: I wish that I could say that women are uniquely safe. It does not mean that you are safe just because it is a women-only toilet. There are lots of men who are not trying to take advantage of female clothing, if I can put it that way — if that is the sort of person whom you are talking about, who could access that space.

Mr Gaston: My concern is more that a transgender man thinks that he has a right to go into a women-only toilet.

Ms Kilpatrick: A person who would have a right to go into a women-only toilet would be a trans woman who has a gender recognition certificate because they are a woman. That is the law, and it has been for a very long time. I am not meddling with the law: that is simply what the law says. As to whether you think that trans women are more dangerous, I would disagree with you. The research shows that that is not the case. As I said, there are better people than me looking at all of that and what the consequences are.

I think that more needs to be done around violence by men against women and that, perhaps, there should be less focus on trans women, who comprise a very small proportion of society.

The Chairperson (Ms Bradshaw): I am sorry, Timothy, but you have asked five questions. I will bring you in if we have time at the end.

Mr Gaston: I thought that we were going by time, not questions.

The Chairperson (Ms Bradshaw): No. I will bring you in if we have time.

Ms Kilpatrick: There is one important thing that I would like to say, just in case I have not made it clear. Trans women are not dangerous. There is no evidence that trans women are dangerous, nor is there evidence that they are a threat to anybody. A trans woman with a gender recognition certificate is a woman: it is as simple as that. That is the law.

The Chairperson (Ms Bradshaw): OK, thank you.

Ms McLaughlin: Thank you very much. As it is Human Rights Week, I congratulate you on the work that you and the commission team do. I attended the launch of your statement on Monday, and it was so heartening to see the depth and scope of the work that is going on in the commission, so thank you for that.

One of the recommendations in your paper states:

Can you give me a wee bit more detail around what those possible institutional mechanisms might be? What do you think about the suggestion of having a gender equality commissioner or a women's commissioner, and how might such a role might support the whole issue of gender equality?

Ms Kilpatrick: I will let Colin respond to that. I will say only that, where you have an inequality, you really need focus, at least in the first few years. You need a focal point and an institution that is monitoring and looking at whether the grand ideas of equality are being met in practice. You need people who are specifically set up to do that. Colin will talk about the institutions that we envisage.

Dr Caughey: Our recommendation draws on the 1995 Beijing platform for action, which considered how women's rights could be better placed in the policy priorities of Governments throughout the world. With that platform for action, there was a move to have institutions in government with a specific focus on the promotion of gender equality for women. We were highlighting in that recommendation the importance of that. We have the Equality Commission, which is independent of government and monitors its performance, and, of course, our institution, which reports on it to the international human rights system.

We are keen to see a focus within government. Particularly in Northern Ireland, joined-up government can be a challenge, so it is about ensuring that you have a mechanism within government that can coordinate the response and deal with any blockages in Departments in order to bring change about. In the UK Government, the women and equalities unit very much takes on that role. There is a need to consider who in the machinery of government that we have here in Northern Ireland has specific responsibilities when it comes to equality for women, and we possibly need a refresh.

I should say that we very much see the ending violence against women and girls strategy as being, if not the gold standard, very close to it in how strategies should operate. If the actions in the strategy are implemented, that will have real potential to effect change. Essential to that is effective working across government, and we hope to see that. We would then have a model on which to develop other strategies.

Ms McLaughlin: Yes, we need to see action on the ending violence against women and girls strategy. You suggested that TEO analyse the EU directive on combating violence against women. How does TEO, for example, inform the work of other Departments? In this instance, that would be the Department of Justice.

Ms Kilpatrick: I will ask Claire to respond to that.

Dr McCann: I will leave it to the Committee to work out the role between the Executive Office and the Department of Justice. I might be best able to speak to what the directive on combating violence against women does. Essentially, it updates some of the victims' directives at an EU level. It is not part of our keeping pace obligation. There is an area where it may overlap, but it is generally part of the wider risk of divergence from EU standards. Essentially, it updates EU standards on victims' rights to reflect largely the Istanbul convention, which is the Council of Europe convention on violence against women and domestic violence, and takes it into EU law. It sets a model for how that can be transposed into law, which is useful, we think

Where it does, perhaps, engage the keeping pace obligation is in the role of equality bodies and the specific provisions that it has in relation to the criminalisation of sexual harassment in the workplace, for example, given that sexual harassment in the workplace falls within the annex 1 directive on gender equality in employment. It sets out a comprehensive suite of protections in this area, which is a useful model, rather than something that we are saying needs to come into Northern Ireland directly. It could be useful for consideration in developing standards in domestic law.

Ms Kilpatrick: Colin wanted to add something, if that is OK.

Dr Caughey: Yes, it is about how Departments here work together. We have established a treaty working group that includes the Northern Ireland Departments that have responsibilities for international treaties. Through that forum, we hope that departmental officials who have international reporting responsibilities are able to share their experiences and look at how, for instance, the Istanbul convention on violence against women and the other treaties come together and how you coordinate action across government to ensure that Northern Ireland is meeting its international human rights obligations.

Ms McLaughlin: Staying with gender inequalities, we had, for example, a statement from the Minister of Health on Tuesday about a three-year plan for stabilising transformation and reform. It is a hefty enough and quite ambitious programme. Obviously, a lot of funding is required for that to be more than a statement, shall we say, but it was remarkable that women's health was not mentioned as an area for reform. There is a great deal of inequality in women's health. A report from the Southern Trust on medical negligence in cervical smear testing came out today.

Women have died as a result, and it is not an isolated incident. There were reports yesterday that it is an issue in other trusts: the Belfast Trust and the Western Trust. I met a few constituents the other day. There are terrible consequences. An equality commissioner, gender commissioner or women's commissioner would be vital in pulling all this together and making sure that we use every institutional mechanism that we can to tackle the widening gaps.

Whilst TEO is leading on, for example, ending violence against women and girls, the government collective needs to work with it at pace. That is what I am looking for in the mechanisms. You could maybe have an annual report or something like that that tells you where you are and what inroads you have made. What are your thoughts on that?

Ms Kilpatrick: Even recognising that there is an issue is a really good place to start. I am not sure that we even recognised that there was an issue until recently — or at least the extent of the issue in health. I recognise it in relation to other things. I am not sure how you do that institutionally. You are probably asking the wrong person, because I am inclined to have a commissioner for all sorts of things, but only if they are given something real to do, they have some power and they work closely with government, which has to make the final decisions.

That would enable men's health issues to be addressed as well. Men have some health issues that are not being addressed, maybe because we have a preoccupation with gender neutrality, which is the same as saying, "Equality is treating everybody the same". It is not, because some things are quite gendered for men and for women.

It is really important to recognise that having people who are specifically educated and trained and know what to do with those gender-specific things can make a difference. If you started off with a commissioner, that commissioner, by consulting the community and people who know better than I do, could presumably start to make recommendations about the kind of institution that you need. You would start off with the experts in that field to advise you on the institutions.

Ms McLaughlin: May I ask another question?

The Chairperson (Ms Bradshaw): Yes.

Ms McLaughlin: You also suggest in the paper that there has been no clear indication yet from the Department for the Economy on whether it will ensure the relevant protections in relation to equal pay and keep pace. I know that a good jobs Bill is out for consultation, but what precisely would you advise the Minister for the Economy to do in order to correct that? Do you have an assessment of whether the appropriate — again, I am back to this — departmental structures are in place to make sure that we monitor the status of and developments in equal pay?

Ms Kilpatrick: My slightly simplistic answer to that is that, if everyone is doing what they are supposed to do —. [Inaudible.]

Ms Kilpatrick: Claire will probably have a much more sophisticated answer. Can we say anything on that at this stage?

Dr McCann: I will just reiterate that this issue is one that we have identified as falling within that keeping pace obligation. It is a compliance issue. It needs to happen by June 2026. We issued a briefing. Our colleagues in the Equality Commission led on this in, I think, August, but it could have been September. They set out a clause-by-clause analysis of what the pay transparency directive requires from Northern Ireland law to keep pace and why we think that it is needed. It covers every provision and where we think that the law needs to change and be updated to reflect that. The consultation on the good jobs Bill — the employment rights Bill, as I like to call it — did not address that issue specifically. We recognise that the consultation on new regulations has also not specifically dealt with that issue. I emphasise again that this is a legal requirement and needs to be actioned fairly quickly in order for it to be implemented in Northern Ireland law by the deadline of June 2026.

Ms McLaughlin: Maybe it is not specific there because they will be compliant, so it did not have to go into the Bill. It was not there, and it is important that we —.

The Chairperson (Ms Bradshaw): Absolutely.

Ms Ní Chuilín: You have identified a number of areas on which we certainly need to keep pace. You have racial equality; gender equality; as Sinéad said, pay; and disability discrimination. Is it too naive to think that, as well as trying to keep pace, this is another argument for the need for a single equality Bill? In the absence of that and in the absence of agreement before June 2026, what will happen? Disability, gender, race and other strategies have been blocked before. In legal terms, what will that mean for citizens here?

Ms Kilpatrick: A single equality Act brings everything together.

Ms Ní Chuilín: It does.

Ms Kilpatrick: The text of the Act treats everyone equally, but not the same, and it distinguishes and explains all of that. At the minute, if you have something for a disabled person, that separates them out already. They could also be a worker, a woman or somebody of colour, so their equality has to be met for all those reasons. It makes no sense to me that all those different groups have been provided for separately. If you have a single equality Act, we can all understand it. I think that that is much better for employers and service providers as well, because they know exactly what it is.

Ms Ní Chuilín: There is a single Equality Act in Britain.

Ms Kilpatrick: Yes. It has been working pretty well.

Ms Ní Chuilín: It has been working very well. Despite Brexit and everything else, it is still keeping pace with European directives, because it is a single Act.

Ms Kilpatrick: It is just easier. You do not have to start amending all different sorts of things.

Ms Ní Chuilín: The spine of what should be done is already there. Brexit has had no impact, and it will not and should not have an impact on legal obligations in respect of marginalised groups or minorities.

Dr McCann: There are two or three different things in that. I will break it down. The obligation to keep pace with the annex 1 equality directives is not comprehensive. We have identified that it is asymmetric: different protections in different directives provide for different levels of protection.

Ms Ní Chuilín: To be honest, I was exhausted even reading the paper.

Dr McCann: Yes, it is complex. We are not pretending that it is not. That is another argument.

In 2022, the European Commission had a consultation on the race equality directive. As part of our response to that consultation, we identified that pulling everything together into one cohesive piece of legislation makes things easier. That was our recommendation to the EU on how it should take forward any changes in that area. Obviously, we do not have the same influence there as we do in Northern Ireland. Some of these protections are required because the European Court of Justice, for example, has issued a judgement in an area.

Ms Ní Chuilín: I cannot even pronounce the disability case mentioned at 3.41 of your paper.

Dr McCann: That is a requirement that the law that we currently have be interpreted in line with those obligations. It does not necessarily require a change in the law, but, because we are no longer part of the wider framework, people might ask, "Oh, do we have to pay attention to that? To what extent?". That is required under the Windsor framework as well. We are just highlighting that as something that needs to be borne in mind.

When it comes to amending the legislation, that has to proactively happen. We are also making recommendations in relation to the pay transparency directive and equality bodies —.

Ms Ní Chuilín: Sorry to cut in, Claire. If we cannot get agreement by June 2026, what happens?

Dr McCann: That is a requirement under the withdrawal agreement. It is an obligation on the UK Government, so, if there is no agreement here, there are other avenues. When we were an EU member state, the UK Government stepped in occasionally when there was not agreement in Northern Ireland in order to give effect to EU obligations. It would depend on whether they were prepared to do that. If not, there are other mechanisms under the withdrawal agreement that we can use. For example, the Human Rights Commission and the Equality Commission can raise issues with the Specialised Committee, which is one of the oversight bodies for the Windsor framework. That Specialised Committee can make recommendations to the Joint Committee, which can make decisions etc. There are structures in the withdrawal agreement that can be used if we cannot find a solution locally to these issues.

Ms Kilpatrick: Ultimately, it will be a breach —

Ms Ní Chuilín: Of course.

Ms Kilpatrick: — if it is not achieved.

Ms Ní Chuilín: There are breaches in human rights legislation here. It is a fact of life and has happened for a long time. What we have by way of section 75 is OK — that is all that it is. It points out that you should not discriminate against particular groups. To make sure that everybody's rights are protected as well as possible, we need a single equality Act for everyone. That would not only tidy everything up but make it crystal clear in law.

Ms Kilpatrick: If you do not mind my saying, that is a really good way of putting it, because it is saying that equality, in and of itself, has its own rewards, that it has to be provided for and that everybody is within that at different times of their life, for different reasons.

Ms Ní Chuilín: Thank you.

Ms Sugden: Thank you for your presentation. Others have touched on the absence of a single equality Act, and Carál just mentioned it. In the absence of such an Act, I have written to you and signalled my intention to take forward age discrimination legislation regarding goods, facilities and services. I feel that there might not necessarily be agreement on the starting age for that legislation. A lot of work has been done in the area. Most people agree on the legislation, in and of itself, but I understand that there was contention around whether it was to extend to all ages, whether it was to begin from 18, as is the case in the Equality Act in England and Wales, or whether we could bring it down to 16. I am keen to hear your views on that. I am sure that I will engage with you more as I take forward the Bill.

Ms Kilpatrick: We were having that discussion earlier. It is fascinating, but I am not sure that there is a right answer that will be very satisfactory, because it will depend on balancing interests and evolving capacity. It is not that you simply reach the age of 18 and you are an adult and, at anything under 18, you are a child. Under-18s need special protection in some situations, and we allow for that, but they are not rights holders in the same way as I might be. We have to recognise that. At what stage do you, essentially, become able to exercise your choice over the choice of parents, for example? That is often where people come from when looking at this. It depends on evolving capacity. This is similar to one of the answers that I gave earlier: some of it will be merit-based and based on a case-by-case assessment, so you will end up having a floor, I suspect, rather than a ceiling. I do not think that you can legislate for every situation or even for a particular age, although you will have to decide on an age. That is not a very good answer, but it is the best that I have. Does anyone else want to say anything? No.

Ms Sugden: I expect that I will get a range of views when it goes out for consultation.

Ms Kilpatrick: There will be a range of views. When you plump for something, we can certainly carry out an analysis and look at balancing situations, but it is very difficult to give an answer. I know that some of our colleagues would say that there is a very simple answer to this, but I am not sure that we think that that is correct.

Ms Sugden: You talked about parental rights. From a human rights perspective, I am interested in that. From chatting to others, I know that they feel that some of the concerns around the loss of parental rights, particularly in this area of goods, facilities and services, are unfounded, because we have age discrimination legislation. Do you have a view on that from a human rights perspective and on if we were to extend it to all ages, for example?

Ms Kilpatrick: Do you mean would a parent have a right to forbid a child from purchasing something or accessing a service even if the child otherwise had the right to access it?

Ms Sugden: To be honest, I am not clear on the arguments around it. I just know that when this issue was discussed in the past, there were concerns around parental rights if the legislation was extended to all ages. That is probably one of the reasons why it did not go forward at the time. Does the Human Rights Commission have a view on that? Do you feel that parental rights would be affected if this law, which would protect people's rights because of their age, came into place?

Ms Kilpatrick: I have to admit that parental rights would be affected, but it is about the way in which they are affected. They could be affected in a very positive way, or some people might say that it is in a negative way. I do not want to give a glib answer, because too much is involved there. A lot of parents will have very different views. There is probably even a range of views in the courts on the answer to that. It will partly depend on the child's age and capacity and the reason for the parent wanting to limit a right that would otherwise be granted.

Ms Sugden: OK. I am just conscious that we have positive discrimination in other areas when it comes to age. It is not necessarily that that I am concerned about. It is more about parental rights and all of that. I am sure that we can get into it in more detail. I was just interested to know.

Ms Kilpatrick: Relationships and sexuality education (RSE) is an example that might be a little bit more helpful. The right for a parent to withdraw a child from RSE in a school has been mentioned recently. According to the convention, the parent has a right to have a child educated according to that parent's ethos, but there is a limit to that right in that the ethos cannot be used to deny a child's entitlement to education. The fact that it is RSE does not make it different from geography or maths, for example. The state has control over the education that children receive and what they are asked to do, which can outweigh a parent's right over the child. It is all a balancing exercise. You look at the way in which you can accommodate both. A child has the right to be educated, and a parent has the right for their child to be educated according to their ethos, as long as it does not deny the child's right entirely.

Ms Sugden: I agree. It is about the balance of rights. We hope to achieve that; it is the intention of Bill. It is about how we ensure that it does not limit other people's rights. That was my only question, so thank you.

The Chairperson (Ms Bradshaw): Before I bring Emma in, I have a question that directly relates to that. When we had the 2015 consultation, the Northern Ireland Human Rights Commission and the Northern Ireland Commissioner for Children and Young People (NICCY) recommended that discrimination against children under 16 should be included. How does that sit with a minor's capacity to enter a contract? Is that where it starts falling apart a wee bit?

Ms Kilpatrick: Before I let Colin answer the specifics of that — 2015 was before my time — I will say that my thinking and legal analysis on that is perhaps different to that which was said in 2015. The law has developed over centuries to decide what children can and cannot do legally. Entering contracts is one thing that has been considered over the past 10 years, particularly in relation to whether 16-year-olds could hold a legal, binding tenancy. There is all sorts of interesting stuff around that. Children can be discriminated against if that is justified, based on their age and the need to protect them. I am not sure that I even necessarily agree with the statement that was made by the commission, but I do not want to hold my colleagues to that. I will let Colin explain that one.

Dr Caughey: In the consultation response, we reflected recommendations from the UN Committee on the Rights of the Child. As there are no specific details of what would be included in a legal provision or a Bill, we are somewhat limited in how we can consider those matters. When it comes to contract law, it depends on what the contract is for and what protections were included in relation to the specific service that is being provided.

Ms Kilpatrick: The way that they got over the tenancy issue was to enable an adult to take out the tenancy on behalf of the child. There was an agreement between the child and adult, but the adult was the person who would be taken to court, if necessary. There are always ways around it. The law has developed to such an extent that a 16- to 18-year-old could enter a contract, just as a 16-year-old who wants to get a car can do so. The more difficult stuff nowadays concerns that 16-to-18 age group.

Ms Sheerin: Thanks to you all for your presentation and the written document that you provided us with. In an annual report, it is always really helpful to see the recommendations laid out and the gaps listed so clearly. I have a question that I think I have asked you before: I have definitely asked Alyson it before. If you could make one simple recommendation to the Committee on the progress that we could make, what would you swing for?

Ms Kilpatrick: Before you do anything, be it policy or legislation, you sit down and think about what you are trying to achieve and whether it advances equality and human rights protection, because ultimately that is what the law is for. I know that people have different views about what comprises human rights, but human rights that are properly understood, according to the convention, should be the job of government to protect. That should always be your starting point. You should start there, and then you can start looking at justifications for restrictions and balancing rights and all the rest of it, but you have to at least start from the basis that what you are doing is providing for the protection of rights.

Ms Sheerin: OK. Everything should have a rights-based approach.

Ms Kilpatrick: It must start that way. Thereafter, it is almost like a decision-making model regarding human rights. It is a lot less subjective than a lot of people think, but there is an element of subjectivity in it. If you start off meaning to comply and follow the process, you almost always end up with the right answer, which is a legal answer and a compliant answer. Too often, legislation or policy is developed and then goes to somebody to screen it or human rights proof it, to see whether it will fall foul of the law. However, with human rights, you should be complying regardless of whether you get caught out or whether you are taken to court. It is government's duty to do that from the outset.

Ms Sheerin: That was one of the key themes throughout the whole bill of rights process in the previous mandate. Oftentimes, the evidence that we were getting from different minority groups and people who were living with a particular rights deficit was that, had we a bill of rights in place and that duty on all elements of government, whether creating policy, implementing legislation or delivering services, a lot of the issues and problems that we deal with as MLAs — constituents coming to us making representations — would have been alleviated. Had there been a rights-based approach to how a service could best be delivered, you would have been in a situation in which nobody's rights had been denied and, therefore, they would have been able to access whatever they need to, because the focus would not have been on money-saving or whatever else. I take that —.

Ms Kilpatrick: A bill of rights is a slightly different thing. Also, it is important to say that, if a rights-based approach is taken according to what the European Convention strictly requires and what the courts have said, it would not necessarily alleviate all those problems because the convention itself does not require, for example, a right to a house. There are lots of rights in the convention around your home, but it still does not guarantee you a right to a home, which is one of those fundamental rights that a lot of people are surprised is not part of the convention.

I do not want to make it sound like it is an easy answer to everything or that it will necessarily address everything, but, certainly, if you start from the basis that you have to fulfil, promote and protect rights, as set out in the convention, you are not going to go far wrong. However, I do not want you to think that that means that there will not be issues. There still will be, and the convention —.

Ms Sheerin: In constituency work, there are loads of examples that I can think of. For example, special educational needs children who do not get a school place, or an appropriate place, at the beginning of the school year or who do not get the transport that they require, people who require domiciliary care packages and people who are living with a disability and cannot get the respite that they need. It always strikes me, when we talk about equality legislation, that we should employ that rights-based approach. If decision makers based their decisions on fulfilling the rights of citizens as opposed to meeting a budget or whatever other priorities feature, you would be alleviating a lot of the stresses that we incur.

You referred to competing rights. As you can see, there is a narrative rising on the idea of competing rights, which, an awful lot of the time, I find very unhelpful. I come at it with the mindset that rights are universal and additional rights for one group does not mean lesser rights for anyone else. I find the discourse around the progress made for the Irish language community interesting. Last week, we had Foras na Gaeilge at the Committee, and it presented through the medium of Irish. For anybody who holds the Irish language dear, the Assembly in the North being able to facilitate that was a big step. It was massive progress for minority languages and language rights. We see a discourse around the protection of English. Do you have any comment to make on that or on the notion of competing rights?

Ms Kilpatrick: Rights can sometimes come up against one other. If you approach it properly, they should never be in competition so that one person necessarily loses out. It may be that my right to do one thing is circumscribed because somebody else has a greater or more immediate right to do something else. That is what life is. Sorry to sound corny, but all law is like that. You have rights, but there are responsibilities that immediately go with the exercising of those rights. Too often, we see it as one right excluding another right, but it does not have to be like that. You can have a right for English speakers and Irish speakers.

The Chairperson (Ms Bradshaw): That is lovely. Thank you so much. There is a lot to digest there. I really appreciate your time, as ever. Good luck with everything.

Ms Kilpatrick: I appreciate the opportunity. Thank you.