27
Examination of witnesses
Alyson Kilpatrick, Éilis Haughey and Dr Claire McCann.
Q44 The Chair: Good morning and welcome to this public meeting of the Northern Ireland Scrutiny Committee, our sixth meeting of this session of Parliament. We are today holding our fourth public evidence session of an inquiry into Article 2 of the protocol/Windsor framework, which is the so-called diminution of rights provision.
We are fortunate to be joined today by senior representatives of the Northern Ireland Human Rights Commission. Alyson Kilpatrick is the chief commissioner at the Northern Ireland Human Rights Commission. Éilis Haughey is director (human rights after EU withdrawal) at the commission. Dr Claire McCann is the senior policy and research officer at the commission. You are all very welcome to our committee and we very much look forward to your evidence. We would be grateful if, when you first speak, you would introduce yourselves briefly and declare any relevant interests in relation to the inquiry.
Today’s meeting is being broadcast, and a verbatim transcript will be taken for subsequent publication. The transcript will be sent to you as witnesses to check for accuracy. I refer to the register of members’ interests as published on the committee website.
I will turn to starting the questioning. Prior to Brexit, how were the RSEO provisions of the Belfast/Good Friday agreement protected? What was the Northern Ireland Human Rights Commission’s role in this? How does this differ from the Equality Commission for Northern Ireland, from which we have heard in this inquiry? How does this differ from the role of the Equality and Human Rights Commission for England, Scotland and Wales?
Alyson Kilpatrick: Thank you very much for having us. We very much welcome this inquiry and the opportunity to contribute to it. To start with how they were protected prior to the Windsor framework, the Belfast/Good Friday agreement was not in itself supposed to be a piece of legislation to be enforced directly. It was an agreement—a compromise—which then was attached to, as your Lordships know, the bilateral treaty, which became the Northern Ireland Act, et cetera.
It was underpinned, however—and this is the crucial bit—by incorporation of the ECHR at a time when everyone knew what that meant. They knew the scope of the ECHR and what the Human Rights Act would mean in relation to public authorities’ scope, but also the boundaries as to what they could and could not do.
In terms of our role within that, we were set up under the Northern Ireland Act as part of the Belfast agreement to advise and to enforce. In one way, it was, as described in Hansard at the time, to keep the Government on the right path despite the Government’s intentions. I say that at this stage because it is sometimes suggested that we are overstepping, and I just want to make it clear that we do what we were set up to do. This is how we differ from the ECNI and also the ECHR.
The way that we protect rights is that, primarily, we advise at as early a stage as we possibly can, throughout the passage of Bills and also after. We can carry out investigations if we see fit. We advise when we consider it appropriate or in response to a request. If we consider that advice should be given, we must give advice.
We also have to advise on what more is needed to secure compliance with the ECHR and other international treaties, which is expressly stated. It is not just the Human Rights Act. It is international treaties properly used to define and interpret the ECHR.
I am not saying that we are always right, but, if our advice is taken at an early stage, the idea is that we do not have to go to litigation or employ any of our other powers. We work constructively with Westminster and Stormont. We are not always asked to give advice, but it probably does not surprise you that we do try to offer advice whenever we see fit, and certainly wherever it is relevant and we think human rights may be relevant.
ECNI has a much different domestic jurisdiction in relation to the equality laws. It does not have a UK-wide remit in relation to equality and human rights. It does not have a role in the same way that we do to promote human rights. We have a statutory duty to promote a positive culture of human rights. We do that through education. We do it through communications, et cetera. We have a very important programme of work through schools. ECHR is closer to us, but not identical either, so the powers are slightly different.
The Chair: Do you mean EHRC?
Alyson Kilpatrick: Sorry, yes. That is quite a crucial difference—EHRC, the England and Wales Human Rights Commission, but also the equality body for Scotland.
There is some dispute about whether it has own-motion powers to bring human rights cases, but I will leave it to discuss that with you. We certainly have a power to bring cases in our own name, without a victim, and we consider that to be a very important part of our remit because it does not require a victim or potential victim to put their head above the parapet in what can sometimes be a case that goes against the strengths of public opinion and can be frightening for people. It can also mean that it is limited to their very specific facts, so we were very deliberately given power to bring a case in our own motion.
The Chair: How many cases do you have on the go at the moment?
Alyson Kilpatrick: We have one, which is the Dillon case. I did not declare that as an interest, but we were interveners. That is concluded at the UK level. Whether the interstate case proceeds, we are not in charge of that, but we will probably intervene, depending on how the argument is developed.
We have the Illegal Migration Act case, which was stayed pending Dillon. We have a High Court decision that found in favour of the commission’s argument. That was an own-motion case brought by the commission, but relying on a lot of victims’ evidence. I do not think that there is anything else pending. There are a few other issues that we are considering, but litigation is not inevitable for any of those issues yet. We are going to see if we can find a different way of resolving them.
The Chair: It sounds as though you limit your litigation, which is you say very much part of your role, to cases of high principle.
Alyson Kilpatrick: Yes, and it is very much strategic. We will take a case that is strategically important and in the commission’s statutory remit. It has to serve a purpose, and that purpose has to be part of the commission’s strategic goals.
The Chair: On the Equality Commission for Northern Ireland, or the ECNI, there must be quite a lot of overlap because equality, surely, touches on human rights.
Alyson Kilpatrick: We call equality, or the provision in the ECHR, non-discrimination, and that cuts through everything. In some ways, equality is the most central principle of the ECHR, because it was founded on universality—the idea that every human being is entitled to rights, regardless of status or of anything else. That is also non-discrimination. However, the Equality Commission focuses on the stricter non-discrimination provisions that are domestic legislation.
There absolutely is overlap, and we try very hard not to step on each other’s toes but to support each other, but we have very different origins, different statutory powers, and a very different legal framework within which we operate. We are Westminster, so we are not devolved, and that is a big difference. It was considered necessary to keep it devolved and for human rights that are still contested. They are contested everywhere at the moment, but particularly in Northern Ireland.
The Chair: Is there logic now in you not being devolved? There is another question that goes with that. The EHRC does its job for the whole of GB. Could the same job be done by a combination of the two bodies in Northern Ireland, or do you think that, because of the nature of the Northern Ireland political settlement and so on, it is in the interests of the public in Northern Ireland that they should remain separate?
Alyson Kilpatrick: I have a very clear view, having now been in this role for five years. I have worked very closely with this chief commissioner and previous chief commissioners at the EHRC, and also with my colleague in Scotland who has the human rights role for Scotland, and also in Ireland—the Irish Human Rights and Equality Commission.
I have seen how combined commissions work, and I also know how we work separately to ECNI in Northern Ireland. I can say that I do not think that anything has changed that would merit either bringing us within the remit of ECNI or, indeed, bringing ECNI within our remit.
It was meant to be Westminster. There are a lot of reasons for that which pertain. Also, around the world, you see a lot of bodies that have merged in that way. A lot of the academic study will tell you that what loses out in the end with merged organisations is the human rights component. This is not pejorative of the EHRC, but it would certainly say that its main task is as a regulator, and that includes the private sector, so as an equality law regulator and less so as a human rights body.
The last thing I would say is that we were the first human rights institution. We were set up very specifically with Northern Ireland in mind, and we have slightly different powers to everybody else because of that, but we are also on a global stage. I was elected as vice-chair to the Global Alliance of National Human Rights Institutions recently. Sometimes for good and sometimes for bad reasons, it sees Northern Ireland very separately, and also as being a leader in a lot of these fields. That is way before my time so I am not taking credit for that.
There are lots of reasons, and I think the public understand why we are separate and why we do not always do the same thing as the EHRC, the Irish Human Rights Commission or, indeed, ECNI.
The Chair: Would either of your colleagues like to add anything at this stage?
Éilis Haughey: What we will come on to talk to you about in terms of the origins of the Windsor framework Article 2 might add further light and colour in terms of the particular role and the particular situation in Northern Ireland.
The Chair: That might bring us very neatly to Lord Elliott’s question.
Q45 Lord Elliott of Ballinamallard: Thank you for your attendance here today. What we are trying to do, just as Éilis has pointed out, is to establish why the UK and the EU included the issue of what became Article 2 of the protocol and Windsor framework, why that was put in, and how that relates to the Belfast agreement, particularly around rights, safeguards and equality.
I was also wondering whether you, as the Northern Ireland Human Rights Commission, provided any advice to UK Government around the issue of the negotiations of the protocol or Windsor framework.
Alyson Kilpatrick: My colleagues will remind me if I forget about the advice on negotiations. Éilis was certainly around at the time, although we lost her for a period of time in between, but she can speak directly to that and I can speak to more recent negotiations.
Let me talk about how they relate. You will all recall that, when Brexit was being considered and debated, there was real concern in Northern Ireland, but also across the UK and among European partners, about what that might do for the status of Northern Ireland. The Government reassured people in Northern Ireland and in the UK that there could never be any contemplation of regression of human rights in Northern Ireland.
That was linked to their arguments in the Belfast agreement, because that agreement had at its heart and throughout, in all different parts, human rights and equality. That is why they linked it to the Belfast agreement.
What they then went on to say when the vote happened was that, just for certainty’s sake, to make sure that there would not be a regression, even though they had no intention of regressing human rights in Northern Ireland, they would make it legally binding. That is in their own explainer document, so they themselves tied it to that.
The way we see it is that those parts of the Belfast agreement were, in some ways, the political settlement and the diplomacy, which was then seen as the umbrella to continued human rights protection. That is why the Windsor framework is complicated and technical at times, but it refers back to something that is much more—I do not want to say the word “emotional”, but I almost mean emotional. It is in principle. It is a heading.
Human rights and equality have continued to be central, in our view, to the peace commitment, but also just to the general health and well-being of all the people of Northern Ireland. The Belfast agreement established “the protection and vindication of the human rights of all”. We know that human rights remain contentious. They are still sometimes seen as being political, and even sectarian in some circles. If that is the case, then we still have more to do to show that that human rights are for everybody and do not attach to the status of the individual.
At the time, it was also important to remember that Northern Ireland lagged behind the rest of GB in relation to some equality protections. It was recognised that, to bring Northern Ireland up to speed, as it were, tying it more closely into the ECHR but also the EU directives that had provided parity across the UK was important.
In terms of negotiations, the commission was being given powers to do things and needed a budget for it, so it was involved at that stage. It was involved in advising on the remit of its powers, what it could and could not achieve, and what the Government did and did not want us to do. Since then, we advise in relation to the application of Windsor framework Article 2 in relation to any new legislation or policy.
I will ask Éilis to add, because I know that she was in the room back then for some of these discussions.
Éilis Haughey: It is important to remember that wider civil society and the Human Right Commission were involved in discussions at a very early stage with the two Governments and with EU officials in relation to what Brexit might mean in Northern Ireland, given the centrality of human rights to the Belfast/Good Friday agreement, and given the questions that were raised by Brexit.
Part of that resulted in a very early commitment, which was maintained throughout the process, as you have heard from other witnesses. As early as 2017, it was acknowledged that there was a need to protect human rights as part of the settlement, and a commitment seen as early as the joint report of December 2017 in terms of the no diminution of rights commitment.
Part of that reflected an acknowledgement that, as Alyson has said, human rights remained contentious in Northern Ireland, and there had been a limited degree of progress since the 1998 agreement. For example, it anticipated the development of a bill of rights for Northern Ireland, drawing on international standards, and that had not materialised. In fact, what limited progress had been made since 1998 was derived, to a large extent, from the obligations of EU membership. That was reflected, therefore, in the preamble to what is now the Windsor framework, where it talks about EU law providing a supporting framework for the rights in the Belfast/Good Friday agreement.
This meant that this conversation was very important to the Human Rights Commission and we were not alone. As I said, broader civil society was involved in that. The outworking of that in terms of what the obligation meant involved us in discussions because that was critical to the development of our advice, reporting, legal powers and so on. We had to know what that would look like, what those were for in order to develop a proposal for a budget, what the commitment meant, and what the Government’s understanding of their commitment was. There were conversations in that regard as to the detail and the contours as the Government understood it.
Q46 The Chair: Can I ask you a supplementary question arising from Lord Elliott’s question and what you have been saying? In your view, has there been any diminution or increase in human rights in Northern Ireland as a result of Brexit? There is a second part to the question as well. Do you regard human rights in Northern Ireland as the equivalent of those in GB?
Alyson Kilpatrick: I will take the second bit of that. This is, in many ways, the beauty of being attached to the ECHR. It attaches to the whole of the UK, as well as to all Council of Europe member states. It is not, however, as prescriptive as to require all regions to have exactly the same laws.
Devolution happened before my time at the commission. To honour devolution, there are differences. Sometimes it can be positive and sometimes less so, from our perspective. Other people may have a different view about whether it is an improvement or a decrease in rights, but we would certainly say—I know that we are going to go on to this—that, since Brexit, there is a risk of diminution of rights. We brought the Illegal Migration Act case because we feared that, if that Act was enacted in Northern Ireland, there would be a breach. The court agreed with us, and that case is now stayed, pending further appeal.
I am not sure we can point to any breaches as such, but we are working on ensuring there are not in the future. Just going back to the Government’s own explainer document, which is quite important to this as well, it ties the Windsor framework to the Belfast agreement, but recognising the unique circumstances of Northern Ireland’s history and the need to put rights and equality central to creating a peaceful and shared future in Northern Ireland.
In that sense, rights are viewed slightly differently. Even though the substance of rights should be the same across the UK, they are viewed slightly differently and may be enforced differently in the devolved Administrations. In Northern Ireland, it is not just a legal technicality but a government promise. It was a peace settlement that hundreds of thousands of people have relied on ever since. Not finding a breach so far does not mean that there will not be or that we are not fearful that there are breaches out there. If there are, first of all, what we try to do is work with Government or the Executive to remedy the breach. Ultimately, we may need to go to court on further cases, but we really do try to avoid that if possible.
The Chair: Is that explainer document still online as an explainer document?
Alyson Kilpatrick: It is not.
The Chair: What is your view on that? It is something that was drawn to our attention previously.
Alyson Kilpatrick: It is disappointing that it has been removed, but what is most disappointing is that it has been removed without any explanation or anything else in its place. We did not know that it had been removed until somebody brought it to our attention.
The Chair: So it was removed without telling the Northern Ireland Human Rights Commission. You have, presumably, sought to obtain an explanation and you have not been given one.
Alyson Kilpatrick: Yes. It was removed as a result of Dillon, so that explanation has been given.
Éilis Haughey: I do not know that we have requested an explanation per se, but, to be honest, given that the Government had argued forcibly in a way that was contrary to the explainer document before the court, one might be less surprised.
Alyson Kilpatrick: I have certainly raised it at my level, but I could not produce a letter to say that I have asked for a fulsome explanation for why it has been removed. It has been discussed in some briefings. It is disappointing for us in a number of ways. First, it was recognised by everyone, including the previous Government, which negotiated this framework, as a key document in terms of understanding of what they—and, presumably, what they thought the EU—were signing up to at the time. This has remained in place throughout, right up to the day of the Dillon judgment.
Everyone is entitled to take the Government at their word and, up until the Dillon judgment, their word was set out in the explainer document. It also made a lot of sense to us. It was logical. I believe that, at the time, there was some discussion with the Human Right Commission and ECNI, et cetera, on whether this was a workable explainer.
The Chair: I do not want to spend too much time on this explainer document, but I suspect that my colleagues would agree that, if we were to ask you, as the Northern Ireland Human Rights Commission, to provide us with a very short paper just explaining what has happened to that document, our request for that explanation may help to speed a decision up as to whether there will be a new explainer document, if colleagues would agree with that.
Alyson Kilpatrick: Selfishly, that would be very helpful for the commission as well, because there is a narrative out there that the commission somehow had an expansive interpretation that was all its own. This is now removed from the website. We could have pointed to the Government’s own expansive interpretation of the Windsor framework, and we did not go any further than they did. It is undermining the Windsor framework and our reputation, and making it quite difficult for us to promote a human rights culture.
The Chair: It shows how tempting a question can be. You have given us a very substantive answer.
Q47 Baroness Ritchie of Downpatrick: Alyson, Éilis and Claire, you are very welcome to give evidence to us today. I want to move on to the scope of Article 2. The UK Supreme Court said in Dillon that Article 2 of the Windsor framework is capable of “direct effect” in certain circumstances. In the view of the Human Right Commission, what are those circumstances and what rights are covered in them? It is also interesting to point out that the Dillon judgment states that the bullet-pointed rights in the RSEO section are all concerned with ending sectarian conflict, but how do you read and interpret that paragraph?
The Chair: You are allowed to say, “I do not know”, if you do not know, by the way, because there are those who do not.
Alyson Kilpatrick: I am going to touch very briefly on this and then pass you over to the person who really can explain this bit of it. They can decide among themselves, but I suspect it is going to be my colleague Claire.
If I can go back to the sectarian conflict, because it relates to something that we were talking about already, everyone was surprised that the Supreme Court found this to be somehow linked to or constrained by whatever could be defined as “sectarian conflict”. I do not think very many people thought that the Belfast agreement was about simply resolving sectarian conflict or that, indeed, the conflict was about sectarianism. It was not about Protestant versus Catholic in and of itself. That came as a huge surprise and it is also a real concern, because what it says is that the rights are about the rights of two groups of people in Northern Ireland. Northern Ireland is much bigger than that. It always was, but it is definitely bigger than that now.
The great thing about the Belfast agreement and about human rights generally, which is why the convention was written into it, is that they apply to every person equally and universally, and all of the rights apply to those people. If somebody at the time had asked the commission or any of the civil society organisations, “Is this about rights?”, I do not even know how you would describe rights to sectarian conflict. Does that mean people injured in the Troubles? I am not sure. Even if you had asked anybody throughout this whole period of time until the Dillon judgment whether it was limited in that way, they would say, “Of course it is not. Let us read the Government’s own explanation and what they thought they were doing”.
The very last thing I would say is that the Windsor framework looked again at the Belfast agreement, so it was not this old, dusty document. They looked again and very specifically tied it again to ECHR. They knew it was ECHR rights, not some other, additional sectarian/equality-type rights or conflict-related rights. This is very common across the world in these peace settlements, where you have a very technical document that incorporates a peace agreement that is political and a compromise, and that is why that is not as precise.
Baroness Ritchie of Downpatrick: What about the issue around direct effect?
Alyson Kilpatrick: I am going to let Claire answer that.
Dr Claire McCann: I am Claire McCann. I am a senior policy and research officer in the Human Right Commission, working in the human rights after Brexit workstream.
On direct effects, the committee will be aware that the Supreme Court used the Demirel case, which is an EU law test. It requires that, in order to have direct effect, terms must be sufficiently clear, precise and unconditional. That is the baseline.
However, it also used that EU law test in respect of the Belfast/Good Friday agreement, which is not EU law. In the early part of the judgment, it used this EU law test to analyse the specificity, conditionality and precision of the right, safeguards and equality of opportunity chapter. In the absence of the EU measure, it found that it is generally ruled out as being capable of direct effect, although there is some nuance to that.
However, later in the judgment, when they come back and look at those provisions when attached to a relevant EU measure, it does not rule out the possibility of direct effect in those circumstances, so you need to look at the judgment in the round just to understand how that fits.
Essentially, the court found that it is necessary to identify a clear and precise obligation in EU law by reference to the right safeguards and equality of opportunity chapter. That understanding is pivotal both to direct effect and to the scope of the rights, which Éilis will come to in a minute.
They did say a few things about direct effect that are useful, because there is some nuance and some reading that you have to do. It found that Windsor framework Article 2 is capable of direct effect, specifically in relation to provisions of the annex 1 equality directives. It further found that Article 2 can have direct effect when it is read with other EU laws that fall within the ambit of the RSEO chapter, providing the Demirel test—clear, precise and unconditional—is satisfied. It also mentioned specifically the eight bullet-point rights and indicated they may be capable of direct effect, but they were not raised in the case, so it did not go into any precise analysis of those bullet-point rights.
Why that is relevant is that, although the court dismissed the EU victims’ directive in the context of the specifics of this case—i.e. in relation to the wider policy about immunity—it did not rule it out in relation to the possibility of individual prosecution, so it did not look at it in that context. That is interesting in terms of understanding direct effect because, although it dismisses some parts of the rights, safeguards and equality of opportunity chapter, being too high-level in terms of generality, to be themselves capable of direct effect, when it read it with specificity of the EU victims’ directive, it at least raised the possibility that it would be capable of direct effect, albeit it did not rule on that specifically.
Q48 The Chair: Can I stop you for a minute? You have given a very clear explanation as best one can. I am going to ask you a question that I asked our witnesses last week. Supposing that I was a trade union officer somewhere in Northern Ireland, and one of my members came to me, saying, “I believe my human rights have been affected in a particular way, and I would like the union to do something about it”, how would that trade union officer, who is an important representative of the public who are members of his trade union, deal with that question, short of simply saying to his member, “I am going to ring up the Northern Ireland Human Rights Commission and ask it to explain it to me”?
Dr Claire McCann: I might defer to colleagues who might have something specific to say. I would recommend that they contact the Human Rights Commission to provide advice, because it is a very complex and nuanced area, and it is not very straightforward. That would be my advice in the first instance.
The Chair: So the judgment leaves some matters rather obliquely explained.
Alyson Kilpatrick: I am really reluctant to say this, and I certainly do not put myself in a position of being able to judge the UK Supreme Court. I would not dare. What I can say is that, rather than providing clarity, it has provided some confusion—
The Chair: You could not be clearer.
Alyson Kilpatrick: I am taking my life in my hands—in the way that it sets out its reasoning. The test of when the Windsor framework applies is, essentially, the one that the Human Rights Commission came up with right at the beginning. We broke it down into six parts. It put them together into three parts, but we do not disagree with the test, so the test remains the same. It is the extraneous stuff that gets more confusing, and the application in practical situations, which is much more difficult.
You can see that I have some of the best help here in terms of working out what it means practically. We work very closely with civil society and with academics. We have read the Dillon judgment I do not know how many times, separately and together. You would have to go to a specialist. if I was the trade union representative or the law centre, I would probably panic and say, “I am not equipped to deal with it”.
Éilis Haughey: I just want to come back to the rights in question, because this perhaps illustrates part of the answer in terms of how it needs to be thought about, should an issue arise. As Claire pointed out, the interpretation of the RSEO chapter really is pivotal because it determines the rights that fall within what the court called the ambit of the chapter. Based on those rights identified, this allows us to identify what EU minimum standards continue to set standards in Northern Ireland.
This is where the first gap arises in terms of the judgment, because the court dealt with three specific paragraphs of that chapter that were put to it. Those paragraphs, as you know, were paragraphs 1, 11 and 12. Paragraph 1 dealt with civil rights, as well as the eight bullet-pointed rights.
In this case, on these particular facts before it, the court rejected reliance on civil rights in this case, saying that the paragraph 1 reference to civil rights was a general commitment to civil and political rights and did not cover the specific rights in Articles 11 and 16 of the victims’ directive. You will recall that that is the right to seek a review of a decision not to prosecute, and the right to compensation. In those very specific situations, the court said that that general reference to civil rights did not cover those particular rights. This does not seem to rule out a reliance on civil rights to identify relevant EU law, but it certainly makes it more difficult.
Q49 Lord Thomas of Gresford: Could you draw up a list of rights that would come within the scope of having direct effect?
Éilis Haughey: In terms of the judgment, it is limited, as I say. The court did not define the full ambit of the chapter and, therefore, that means it did not go on to identify the full range of EU law that would be captured or relevant as a consequence of that. If it is helpful to continue just a little bit, it looked at victims’ rights and did not rule out reliance on paragraph 11, which deals with victims’ rights.
The Chair: So you can say what it did not rule out, to some extent, but not necessarily what it ruled in.
Éilis Haughey: Yes, precisely. It did not rule out reliance on Article 11. Having mentioned this high-level, general language, once it read it with the victims’ directive, it said, “We do not feel it necessary because we found no diminution in this case, but we do not rule out reliance on paragraph 11 of the RSEO chapter. It may be broad enough to encompass the particular rights under the victims’ directive, but there is no diminution in this case, so we will not rule”.
It appears to affirm the eight bullet-pointed rights in paragraph 1, and the commission has done work with the Equality Commission and published a scope paper setting out the bits of EU law that we feel fall within each of those bullet-pointed rights. We also have done work identifying other bits of EU law that we think fall within the civil rights commitment.
Very importantly, we would like to talk to the committee a little bit about the connection with the ECHR, because the RSEO chapter deals with a wide range of other rights that are not covered by paragraphs 1, 11 and 12, but, as I said, that was not put to the court, and the court did not rule upon it.
For example, as has already been mentioned this morning, one of the paragraphs of that chapter provides for the incorporation into domestic law of the ECHR. The commission has considered that carefully, with the explainer document, over a long period. We spent two years engaging in detail, commissioning pieces of research and doing our own work, and the paper that we produced considered that the ambit of the chapter, in our view, cannot be any narrower than the range of rights in the ECHR, given that parties to the agreement had agreed that the ECHR should be brought into domestic law.
What that means in practical terms is that, in the view of the commission, EU law that bound the UK before Brexit and is relevant to or gives expression to ECHR rights falls within the scope of the Article 2 protection. To be clear—and this is really important and got a little lost in some of the court pleadings—this is not about suggesting that Article 2 can be used to enforce ECHR rights as ECHR rights.
The Chair: I am going to stop you because we need to move on, but I just wanted to ask you if you would do something else for us, which is to produce for us a short paper about the issues we have been discussing in relation to the last question, as raised by Lord Thomas’s question. We bear in mind that we are a parliamentary body, so we are not offending anyone if we were to conclude that the Dillon case has created a situation that needs to be remedied by legislation in some way or another. We are allowed to do that without causing anything worse than occasional personal offence to the odd judge.
Q50 Baroness Foster of Aghadrumsee: I declare my interest as chair of Intertrade UK and a member of Co-operation Ireland, for the record. To go back to the “Rights, Safeguards and Equality of Opportunity” chapter in the Belfast agreement and the fact that the court decided that that chapter was to deal with the particular circumstances of Northern Ireland, it is important that I push back a little bit, Chair, on the fact that it does say in the opening paragraph of that chapter that, “Against the background of the recent history of communal conflict, parties affirm in particular”, and then it goes on to talk about the bullet points.
It also deals, as we know, with the victims of violence further on in the chapter, so I do not think that it is an unreasonable interpretation for the court to say that this is coming out of what has occurred in Northern Ireland pre-1998. I just wanted to push back a little bit on that, and I would be interested to hear your thoughts about the narrative in that chapter.
Article 2 of the Windsor framework imposes an obligation on the UK Government, and I would be interested to hear what you think that obligation is in the light of the Dillon judgment. We have had various academics giving us their views in relation to the Dillon judgment and its impact on the Windsor framework. Some have said that it has cleared up the interpretation of civil rights. Others have said that it has made it more complex, so I would be interested to hear what your view is, as well as in terms of the significance of the obligation for Northern Ireland and, indeed, for the UK Government as a whole.
Alyson Kilpatrick: We can maybe split that. Although it clearly was recognising the backdrop of the conflict, and those were part of the circumstances, those were part of only those circumstances that required special protection, because what it then goes on to do is set out rights that clearly are not related simply to sectarian conflict. We have, for example, the rights of people to equality, regardless of disability. At no stage did anyone suggest that that was somebody who had been disabled as a result of a conflict-related injury. It clearly embraced wider rights.
Probably more importantly—and you may say that we would say this, of course—it is generally recognised that what the ECHR does is secure peace, democracy and the rule of law. It is across the world that this is often adopted, because every right is equal and every person is equal. That is how you overcome conflict. If the Belfast agreement said, “Some people will enjoy rights, but not others”, I do not think anyone would argue that that would have got us over the hump of the conflict, because that is what some people were arguing was the root of the conflict, whatever perspective you are coming from. This was supposed to be a guarantee that everyone would have access to the rights laid out in the ECHR as interpreted by the relevant court.
I can also say, though, that the Government did not, at any stage, argue that this was tied to sectarianism, even in front of the UK Supreme Court. I know that it appears in the Secretary of State’s statement to Parliament, but it was not in the pleadings before the European Court. It might have been said by one of counsel on their feet, but it certainly was not in the written pleadings, so that was news to us.
The other thing about this narrative around the Belfast agreement and since is that rights mean something only if all of the rights apply to all of the people. That means all of the rights, interrelated and universal. The ECHR clearly stretched way beyond sectarianism or conflict. You might say that that is reinforced by the fact that the Belfast agreement, and then the Windsor framework, set out separately equality directives that were to be dealt with differently to the more general rights—the no diminution provision that was underpinned by the ECHR and the Human Rights Act.
We would say that it was clearly intended that no diminution of rights meant just that, as at a date and time. The Government were saying, “We never intended to and, therefore, we are happy to put in writing the fact that we will not let Northern Ireland slip behind where it is today in so far as rights are underpinned by EU law”, and guaranteeing ECHR is that underwriting, so it is relevant that there was the backdrop.
Going back again to the explainer document, they do talk about the background to conflict in Northern Ireland, but, if you read beyond that, it talks about facilitating rights in all forms of discrimination and all people. It sets out the right to equal opportunity in all social and economic activity regardless of class, creed, disability, gender or ethnicity, and the rights of women to full and equal participation, for example.
The Government understood and were telling people that this was much broader than that. It was never confined to sectarian conflict. The fact that this appeared in the UK Supreme Court judgment was a surprise to most people. If we had anticipated it, we would probably have put something in writing before the Supreme Court, but it was not there to correct.
I also want to say that, in terms of the Supreme Court case, much focus has been on our participation in it. We were afforded 15 minutes before the UK Supreme Court. This was not our case. We intervened in it and were very limited in what we did.
The Chair: Presumably, you put in written submissions.
Alyson Kilpatrick: We put in a written submission, and then we were given 15 minutes for oral submissions.
The Chair: That is common practice in the Supreme Court.
Alyson Kilpatrick: Yes, absolutely.
Q51 Lord Dodds of Duncairn: It is an interesting discussion about your view of what the Supreme Court decided, but are we in danger of having a bit of an academic discussion and relitigating? The Supreme Court has looked at this issue. It has come to a unanimous decision in the areas where it has been clear, and is, very clearly, going to be very persuasive in the areas where it has discussed other issues and all the rest of it. Is there any merit in going over this while we would have expected this? Do we not need to look at this in the light of, “Here is what the Supreme Court has decided. It is obviously going to apply more widely in the lower courts and we need to adjust to that reality”?
Alyson Kilpatrick: Yes, absolutely. I do not disagree with that, and that is exactly what we are doing at the minute. We are trying to adjust to that reality. At the same time, the Supreme Court left gaps. It also, with all due respect, contradicted itself in some important respects and made it quite difficult to say, “This is not black and white. You cannot read that judgment”, I do not think, and most of the academics and other people giving evidence have said the same thing, “and get one clear picture”.
Clearly, it has narrowed the application. Even if we disagree with the Supreme Court, which we are entitled to do, it does not mean that we dispute it, so we will have to apply it. There are so many jigs and reels in this judgment that you think there is clarity, and then it goes on and says, “However, in these circumstances, it may be”.
The Chair: This might be a useful moment to move on to Lord Thomas’ question, which is connected.
Q52 Lord Thomas of Gresford: Did the commission argue, either in its written or oral submissions, that the bulleted rights in the RSEO of the charter could be enforced by an individual litigant? Do you think that the Supreme Court, in drawing the scope of the article very narrowly, meant that you might have been rather ambitious in your interpretation that you were seeking to put forward of Article 2?
Alyson Kilpatrick: It might certainly be said, and I know that some people have said that. I would disagree, with all due respect to those people. What the judgment does not do is say that it is not directly effective. Direct effect is simply the European law way of talking about enforceability. What is absolutely clear is that the Windsor framework was supposed to give rights to individuals. That is written throughout everything, and that is why the Human Rights Commission, with ECNI, were given joint but also separate powers to litigate and bring cases on behalf of others. Nobody is suggesting that a person should not be able to enforce this in court.
This judgment, because of a few technical matters, including the fact that it was challenging legislation before it came into force and, therefore, the test applied to the right to relitigate it, if we want to put it that way, was much narrower. The Supreme Court certainly said that it could be directly enforceable, but in certain circumstances. What it does not do is then set out what those circumstances definitively are, so we are still going to have to go through and work out what those circumstances are.
Lord Thomas of Gresford: Your position, as I understand it, therefore, is that the bulleted rights in the charter are enforceable by the individual in court. Is that right? That is your position.
Alyson Kilpatrick: Yes, in principle, but what we cannot yet say is which right is enforceable and how it is enforceable.
Lord Thomas of Gresford: Do you not think that that is contrary to the judgment in Dillon, by which we are all bound?
Alyson Kilpatrick: Yes, absolutely, but, contrary to some of the reporting of Dillon, it did say that direct effect was relevant in certain circumstances. It has not said that it is not directly effective. Perhaps I can ask Éilis just on that very technical point.
Éilis Haughey: It takes us back to what Claire was advising on in relation to the way that direct effect operates. The court said that we have to read the RSEO chapter with the relevant EU measure, and the court did not rule out direct effect in that situation. It affirmed, in fact, that it could envisage direct effect coming into play with the annex 1 directives, for example, as they provide for specific rights. You can see that the bulleted rights in the RSEO chapter are of relevance to those. It did not rule out direct effect arising in respect of other rights within that chapter, to the extent that there is a directly affected EU right falling within the ambit of the rights in the chapter.
Q53 Baroness O'Loan: You have dealt to some degree with the question that I am about to ask you, but, post Dillon, is it clear who can rely on Article 2 of the Windsor framework? Are you confident that you can offer individuals clear advice?
In relation to the explainer document, I think the answer will be one word, but would a new version of the Government’s explainer document of Article 2 be helpful for clarifying the scope of Article 2, considering the court’s judgment in Dillon? I think you have already answered that.
Alyson Kilpatrick: I will start with the short one. Yes. However, we will be advising that the Government need to not just summarise Dillon but to understand it, and to go back to the agreement that they made with the EU and clarify what that agreement meant, not just the UK law means of enforcing it by an individual before a local court. That is really important. There is a separate thing about enforcement before a local court, and then there is also the whole nature of this agreement, which is not just the UK.
In terms of whether it is easy for us to advise, it is not. That is almost easier. In terms of to whom it applies, the answer to that is also no. If, when the Government wrote the explainer document, they meant that this was a true reflection of what they thought had been agreed, it says, “The UK Government will be legally obliged to ensure that holders of the relevant rights”—and, if you go back, that is all holders of any rights, including ECHR rights—are able “to bring challenges before the domestic courts and, should their challenges be upheld, that appropriate remedies are available”. That is when we were given the power to bring our challenges before courts and also to represent individuals. Individuals have the right to go before a court as well.
If something has changed—clearly, the Dillon judgment in the Supreme Court has changed that framework dramatically—then the Government need to decide, “Does that mean that we have been taken away from the true nature of the Windsor framework? If so, do we need to tell our negotiating partners in the EU and try to come up with an answer?”
A new explainer document taking all of that into account would definitely help us, because, at the minute, there are two different things being presented. Dillon is so narrow. It is easy to say, “Dillon is done. It is binding and we cannot argue anymore”. In some ways, we wish that that was the case, because it would make our jobs and lives an awful lot easier, but it is simply not possible to say that with any credibility. There are so many gaps and what-ifs. Even the court itself says that this is not binding in relation to individual cases under the Troubles Bill or under the legacy Act. Even on that narrow ground, the court has not ruled out questions. Going back to what the Government said they had agreed with the EU, it should be enforceable by everyone.
Q54 Lord Dodds of Duncairn: Thanks very much for your evidence so far. Alyson, you said right at the outset, when you were talking about the powers of the commission and so on, that you would advise and enforce. You mentioned the possibility of intervening on Dillon in relation to an interstate case. First of all, could you explain what you meant by that?
Secondly, when we look at what might happen in the Dillon case, there is always the possibility of this matter being taken to the joint committee between the UK and the EU and, if there is failure to agree there, to arbitration thereafter. Have you, as the Human Rights Commission, made any representation or are you considering discussing with the EU or the UK Government the possibility of this matter being taken to the joint committee? What discussions have you had with the Irish Human Rights and Equality Commission about that or, indeed, Dillon in general?
Alyson Kilpatrick: I think I was unclear. I probably put two things together. In terms of Dillon from the UK Supreme Court, that is it. There is no appeal. Even if it goes to the European Court of Human Rights, it does not change anything necessarily. It will not go on appeal. That is it. It is done.
However, there is an interstate case, which will touch on some of the other issues here. We do not know yet, but it is unlikely to get into the Windsor framework. The commission may intervene if there is an interstate case in relation to ECHR elements, and it may become necessary to argue about the Windsor framework if the court asks us about the effectiveness of a remedy provided in the Windsor framework. I apologise if I put two things together. I should not have done that.
However, we understand that there will also be an applicant’s petition to the European Court of Human Rights. Whether it goes into the Windsor framework, I do not know, but it is not really the European Court’s business to determine Windsor framework Article 2. There may be a reference to the Court of Justice of the European Union, if that is the case.
In many ways, we see that as a very blunt instrument and a very costly way of trying to sort this out. The best approach would be, first, through the UK Government, because they are to whom we report and advise. We will do what we can to work out with them, first, what is intended. Have they achieved what was intended, and is it enforceable? Are the powers given to us relevant and practical, and can we make use of them, or do we need to ask for different powers or limit them completely? If it is not intended that we bring cases, maybe they need to clarify that as well.
In terms of talking to the Irish Human Rights and Equality Commission, we have not yet, other than it came up over a cup of coffee, so we have this joint committee. In very general terms, it is on our agenda, in full disclosure, for a July meeting, but it will just be keeping each other informed. As you know, the Irish Human Rights and Equality Commission has a role in the island of Ireland aspect of the dedicated mechanism.
We have not met or discussed with the EU yet. I am sure we will at some point, but what I should make clear is that we do not see it as our job to persuade any of those parties to take a particular position, other than in pursuit of the agreement and the proper interpretation.
I know it is probably an unhelpful way of answering this, but it is the truth. The Supreme Court takes us only so far. What we are still left with is an agreement, which is either honoured or not, and is either meant to be enforced in a certain way or is not. That is still on the table. That agreement is still there. We will help the Government work out what they want to do. It is only in the statement post Dillon that the Secretary of State alluded to the fact that they always believed that the Belfast agreement was about ending sectarian conflict. They may well have done, but we did not understand that to be the case. We did not know. We had not heard that before. If that is right, we need to work with them and sort this out.
We are not going off in other directions yet. We want to know exactly what it is we are supposed to do. We will advise, because the function that we were given makes sense only if what we say about the applicability of the Windsor framework is right.
Lord Dodds of Duncairn: You would not go to anyone else yet, so you want to work with the UK Government, but you do envisage the possibility that, if that does not work from your point of view, you may well go to other parties to have a wider discussion of the joint committee in Europe.
Alyson Kilpatrick: Only in the sense that we all co-operate with each other all the time. We discuss things. People will ask us things and we will tell them what our view is. We do not go off trying to persuade somebody. It is not that we will go to the EU and say, “We do not like what the UK Government have said about this”. That is not what our job is. We do try to work out what exactly the UK Government and the EU signed up to.
Given that we were put in as the dedicated mechanism to enforce these rights, we need to understand what our job is. I am not saying that we will say, “I cannot talk to you about that”. We will probably discuss it, I am sure, and they will ask us for advice. We sometimes ask the EU to give us advice on what European Union law is coming down the track, because we have to keep pace with the equality directives, but it is not a campaign or anything, and it is not what we like; it is what the Windsor framework and the Northern Ireland Act say, and it is what our role is and what the Government intended. That has all been thrown slightly in the air by the Dillon judgment, so we are trying to bring it back down to earth again.
The Chair: I hope that colleagues will forgive me, but I do not want us to fail to get to questions 10 and 11, which refer to the dedicated mechanism. I am going to ask Baroness Sanderson to deal with question 10, and then, immediately afterwards, Lord Hain to deal with question 11 in our list of questions, and then you can answer them together.
Q55 Baroness Sanderson of Welton: You have spoken a bit about working early in the process. Do you think that a more routine and formalised engagement between Parliament, the Northern Ireland Assembly and the dedicated mechanism would ensure that Article 2 issues are considered right at the outset when making legislation? Do you think that a ministerial statement of compatibility for Article 2, similar to Section 19 of the Human Rights Act, would be helpful in this context?
Lord Hain: First of all, apologies for being late, and no disrespect intended. It was unavoidable.
Alyson Kilpatrick: None taken at all.
Lord Hain: How would you assess the effectiveness of the existing Windsor framework structures for formalised engagement between the Northern Ireland Executive and the dedicated mechanism, and in respect of the engagement between Westminster and/or Whitehall and the dedicated mechanism? Could they be improved in the future? If so, how?
The Chair: One of the suggestions we had in our evidence session last week, and in writing, is that, in the same way that, in statutes, there appears an ECHR compatibility statement by a Minister, there should be a similar provision for Northern Ireland.
Alyson Kilpatrick: Yes.
The Chair: Yes.
Alyson Kilpatrick: You have almost invited me to say another sentence, which I hope you will not regret. Yes, so long as it is based on an analysis and is not just a statement. There have been human rights memoranda and statements in the past that do not appear to be accompanied by analysis. Presumably, the relevant Minister wants to be able to stand over the statement and in relation to the Windsor framework, so they or their officials must have undertaken an analysis.
What we are saying is that we would like to see it as well. If you made it available to all those who are interested in this, that would be a great benefit, because it focuses the mind but also tells other people that they are taking it seriously, so yes to the human rights statement and also the Windsor framework statement.
From the beginning, we understood that that is what was going to happen, and the Cabinet Office guidance was amended to say, “This is very important. You should take this into account in legislation and policy”. Again, we are simply putting it back to them and saying, “You thought it was important and we agree, and it has not become less important”.
In terms of formalised engagement, it has got better and better, I have to say. We talk regularly to officials. We think that they could come to us more often and more formally to ask for advice. They do not have to always follow our advice, but at least a discussion on it and where we are coming from would be really helpful for us. We think, in all good grace, it would be helpful for them too.
Maybe it is just presence on the ground and impact, but we are more likely to engage with the Executive and with the Assembly departments than we are with Westminster, although we do engage with the Northern Ireland Office, which is more directly affected. That relationship is better and better, so we are seeing a lot more engagement and some really honest and respectful conversations, and it really wanting to understand.
What is also important is that, if we give advice—and as I say, I am not claiming that we have the answers to everything—it has to be taken seriously. We do not do it lightly. We were given the role, so whether we wanted it or not, this is our statutory responsibility, not just to the Secretary of State but to the whole of Northern Ireland society and the rest of the UK. We have to give that advice and it needs to at least be addressed. Too often, it is not.
The Chair: So that is a yes, yes and yes.
Lord Hain: I was intrigued by what you said earlier, which is that the EU might consult you, or you might seek advice on what was coming down the track. I assume that would simply be in relation to human rights issues, and not agricultural or border transport arrangements and so on.
Alyson Kilpatrick: It depends. I have to say that the dedicated mechanism team’s workload is huge, because it can be. We discovered that one of the things might be accessibility of lifts that go up and down. First blush, you would not have thought that that had anything to do with this, but it does. Pet passports became relevant. How kosher food was imported into Northern Ireland and what the conditions attached to that were became relevant. It is only when you search through some of these wider issues that you discover that there are implications.
Lord Hain: Do you have advance notice of those from the EU?
Alyson Kilpatrick: No, not formally. I do not know whether Claire or Éilis want to say exactly how it works, but we do have a good relationship and we do try to get advance notice. Colleagues have to sit and scan everything that is coming out, particularly in relation to the six equality directives.
Éilis Haughey: There are mechanisms for sharing advance notice. The EU side is expected to share advance notice of directives coming down the tracks that affect the dynamic alignment obligation. That mechanism was a little rusty to begin with. I do not think that the binding standards for equality bodies directives were necessarily notified, as we would hope things would be in the future, so we do our own monitoring and tracking as well.
That engagement that the chief commissioner referred to in terms of officials is very helpful as well. We know that they are looking to see what new measures might be coming that affect dynamic alignment as well. Our relationship with the EU side connects to Article 14 of the Windsor framework provision, whereby our commission, the ECNI or the joint committee may raise issues of implementation with the EU-UK specialised committee, so there is a proper formal channel to raise issues there if we have concerns.
The Chair: Are these engagements in any way formal and routine, or are they ad hoc?
Alyson Kilpatrick: They are both, but more ad hoc than formal. We have had a few formal meetings, but arranged at the last minute, because we might be visiting somewhere, or people might be visiting Northern Ireland. It is not on an agenda as such.
Éilis Haughey: There was a meeting held in Belfast some years ago when EU Commissioner Maroš Šefčovič came to Belfast. That sort of formal level is quite rare, really, but the more ad hoc, informal engagement with the EU side is what we have participated in.
The Chair: Part of the thrust of these two questions asked by Baroness Sanderson and Lord Hain is whether there should be a more formal approach to ensure that the consultations were both disclosable and accountable, in certain circumstances where that was required.
Alyson Kilpatrick: I will answer that very shortly. Yes.
Q56 Baroness Foster of Aghadrumsee: I was just thinking about our previous inquiry, and our questions about the Northern Ireland Executive’s office in Brussels and whether it provided any assistance to the Northern Ireland Human Rights Commission. Our last discussion was around the fact that, by the time it becomes a directive, it is too late to do anything about it, as such, if there are human rights implications. I was just wondering what your relationship was with the Northern Ireland Executive office.
Alyson Kilpatrick: It is not too late, in the sense that it can be disapplied.
Baroness Foster of Aghadrumsee: But it is too late to influence the—
Alyson Kilpatrick: Yes, I know. The UK Supreme Court did not say that disapplication was not the remedy, so in that sense, it has continued that. At least the word on the page is “disapplication”. We do engage with them in the sense that, once a year, we have gone over and presented to them. Do you want to say how effective the sharing is?
Éilis Haughey: That office has kindly facilitated our engagement at EU level on an annual basis, where the three commissions have gone over and briefed Members of Parliament and presented our work to representatives from the UK mission and the Irish permanent representation. Representatives of all the institutions there have been brought together, so that has been very helpful. We also meet regularly with Executive Office officials, which includes members of staff working in the Brussels office, and exchange information as best we can in that form.
Q57 Lord Dodds of Duncairn: On this general theme, what sort of interaction do you have with the Democratic Scrutiny Committee in the Northern Ireland Assembly? Would it regularly or generally ask you for advice on these various implications from a human rights perspective?
Éilis Haughey: That has not arisen to date.
Lord Dodds of Duncairn: Has it happened at all?
Éilis Haughey: No. As the chief commissioner says, we can give advice, and we do routinely provide submissions on Bills without a request for advice, as such, but we have not as yet. We have recommended that a human rights analysis be part of their scrutiny and that they should engage with us as appropriate.
Alyson Kilpatrick: We would be very happy to if they did ask.
Éilis Haughey: I assume, perhaps, that they have come to a view.
Q58 Baroness Goudie: Just going back to the breaches of those rights—and thank you for what you have told us so far—the Equality Commission for Northern Ireland told us that resolving breaches of Article 2 of the Windsor framework via legislation is a failure. Do you agree? Would it be more effective to address Article 2 Windsor framework concerns at an early stage of the legislative process?
Alyson Kilpatrick: I am not sure that I would describe it as a failure. It is a necessity that we should not resort to unless it is necessary. It is part of a process that was provided for, because the courts are an independent arm of oversight. We might be wrong, and we are quite happy for the court to tell us so. The court can be a very useful place to take disputes. I do not see it as a failure.
It is better and cheaper if things can be done properly from the outset, but we may not agree with what is proper, and the Government may not agree with what we say is proper. Sometimes, you have to put it into the hands of the courts, which have a long history of being independent and adjudicating on issues that the parties cannot agree on, so I am very happy with that, so long as we do not run off to courts all the time asking them to do our work for us.
Q59 Baroness Ludford: If we look at the rights that the Supreme Court concluded fell within the scope of Article 2, how would a diminution of rights be determined? What is the role of the dedicated mechanism framework in determining a breach? Could you give an example?
Alyson Kilpatrick: On that very technical matter, I am going to let the expert answer that to start with.
Éilis Haughey: First of all, the court in Dillon applied, as was mentioned earlier, a three-stage test, not dissimilar to what we proposed and have in our scoping paper.
It starts with the analysis of the RSEO chapter. Is there a right, safeguard or equality of opportunity protection engaged? The second step is to see what the EU law underpinning was and whether it had legal effect at the time of Brexit. The third step is then to look at whether there has been a diminution of that right that would not have been permissible had we remained in the EU. That test is consistent with what we had previously advised and remains in place.
Importantly, in terms of our role, the commission does not determine a breach, but that is the kind of analysis that we would conduct when we see legislation or policy, or have a client come to speak to us. Our job is, of course, to advise Government on compliance with their existing commitments. As we have said, in order to be useful, that advice needs to be listened to and considered at an early stage, if possible, to pre-empt or avoid litigation becoming necessary. Should that not be the case, of course, we do then have the power to initiate, support or intervene in litigation.
I can walk through an example if there is time, if you wish. One example that comes to mind is in terms of the issues for victims of human trafficking. The commission considers that the EU human trafficking directive—the 2011 one, not the more recent one—falls within the ambit of the RSEO chapter, for three reasons.
First, on the basis of ECHR right Article 4, we think that it is given expression, to some degree, underpinned by this EU trafficking directive. Secondly, human trafficking victims are, in a sense, a subset of victims, and victims’ rights are within the ambit of the chapter. Thirdly, it does so on the basis of the commitment to equality of opportunity in all social and economic activity, regardless of gender, given, quite often, the gendered nature of human trafficking.
Based on that analysis, when the Border Security, Asylum and Immigration Bill was going through, we raised concerns in respect of some of the provisions that have been left on the statute book. Notwithstanding that most of the IMA was being repealed and so on, some provisions are left on the statute book that reduce the rights of victims of human trafficking, including, for example, disqualifying a potential victim from what is known as the recovery and reflection period on grounds of public order or bad faith. We do not think that those restrictions or disqualifications sit well with the minimum standards in the EU trafficking directive, so we argue that that should be remedied. Perhaps that is helpful, but we can provide more detail in writing.
Q60 The Chair: We can move on to a few minutes of a rather freer session. Can I provoke it by asking you two questions? One is about formality and informality. I happened to be involved in a discussion this week about some activities of the Financial Conduct Authority, which is a completely different subject, that deal with issues that affect real people in very large numbers—for example, unfair credit agreements. You deal with issues that affect any citizen in Northern Ireland, and you, at the end of the day, are there to provide the Article 2 human rights aspect of this. What would be your wish list to improve the effectiveness of your already very well-known commission to ensure the protection of rights following Article 2 and Brexit?
Alyson Kilpatrick: I will keep it short, because I have a very long wish list, if I was to really take advantage. I do not know if you could do this in statute, but it would be something that recognised the independence of the commission and why that is important to its functions under the Windsor framework as well as under the ECHR.
As it was said at the time, we were there to keep the Government honest and keep them to their promises, even when that potentially puts us in conflict with government policy or even with public opinion. I do not need to tell anyone here that we are sometimes contrary to public opinion, and it is very uncomfortable indeed, but we have to do it. It is our job to do it.
If that was reflected in how the Government saw us, that would be helpful. If the Government were able to say, “This was deliberately set up as an independent organisation to help us but also to challenge us when necessary”, that would be helpful.
Another would be an obligation to at least take account of or consider our advice. There is no obligation. We have a duty to advise. There is no corresponding obligation to consider or respond to our advice. That would be helpful, even if it is just two sentences saying, “We disagree with you. We think you are fundamentally wrong, for this reason”.
Lord Hain: Is that just UK Government?
Alyson Kilpatrick: It is both.
Lord Hain: The Northern Ireland Executive as well.
Alyson Kilpatrick: Yes. Because the Northern Ireland Executive cannot legislate, contrary to the ECHR or the Windsor framework, and it is outside of their jurisdiction, we thought that they would be at least throwing it past us to start with to see what our view is on whether it is likely to be compatible. Maybe they have not made enough use of that.
The Chair: What is the level of communication between yourselves and the Stormont Government?
Alyson Kilpatrick: It depends on which Department. It depends on the issue. It depends on the time of year. I think it is getting better—and I hope I have not spoken too soon—as our role is better understood and our determination to be independent, but also to be straight down the middle, which I mean in every sense, is recognised more and more. The more work we do, the more we advise, the more we issue our research and the more we give evidence, people are beginning to realise what we are about and how we conduct our work.
The compatibility statement would be helpful. Just having a process there would be really helpful. Whoever came up with that as a first idea, it was a really good one. I cannot think of anything else specifically. It is more about the intention and the good will behind it.
Éilis Haughey: In terms of Section 90 of the statement, we had previously advised about the expansion of the human rights memorandum to set out that transparent analysis, and we should, in this context, acknowledge that this committee has been the first to elicit any kind of transparent analysis of compliance with Windsor framework Article 2 in relation to the recent Bill, where the committee wrote and said that they were not content with the yes/no answer. That did elicit a few paragraphs at least of the Government’s consideration. We think that that substantive transparency is very helpful for parliamentary scrutiny and for ourselves to understand government thinking.
The other action that would be helpful in putting Windsor framework Article 2 on a clear and firm fitting would potentially be a joint committee decision at EU-UK level, providing that clarity on an agreed basis. Of course, any decision of the EU-UK joint committee has the force of treaty and, because of Section 7(a) of the EU Withdrawal Act, is automatically incorporated into our domestic law.
Q61 Baroness Ritchie of Downpatrick: How often do you meet with your political masters in the NIO? Are you able to discuss the outcome of Dillon and the confusion that has emerged? Are you able to talk about rights, and about what they mean today in terms of the Good Friday agreement?
Alyson Kilpatrick: I must say that that has improved considerably more recently. The interest in meeting with us is much greater than it might have been before. The door is open to me to ask to speak, and I have, on a number of occasions, met with the Secretary of State and his officials. I know that officials also meet even more regularly than that. I cannot criticise the opportunities that I have had to discuss, right down to Dillon as well. The way it was described was “robust conversation”, and we know what that means. It was not rude, but it was an open, honest conversation where we had different views about things. This is where the independence of this organisation really is cherished by us.
The Chair: At what level are these conversations taking place?
Alyson Kilpatrick: I have had a number with the Secretary of State, the permanent secretary and some of the other officials. What is proving so helpful is that we can have those discussions without any retribution in any way, and I do not mean anything too extreme. That true measure of the independence that has been conferred upon us and that being honoured is hugely important. It is maybe not said publicly enough, but it is very welcome.
Lord Thomas of Gresford: Do you have the standing to go to the UK Government and ask them to raise in the specialised committee and, beyond that, the joint committee, the question, “Is Dillon really what was agreed and intended?” If you do, is that a line to pursue, perhaps through arbitration and beyond?
Alyson Kilpatrick: We can certainly ask. When we have those sorts of meetings between myself and my colleagues and the Secretary of State, they are at least very interested, on both sides, in what needs to be done to make sure that everybody is on the same page. We cannot force them to, but we can certainly ask, and that may well be where this ends up. That may well be the best outcome.
Lord Thomas of Gresford: Presumably, in the joint committee, they could decide, “Dillon does not reflect what was really agreed and we will tinker with the Windsor framework in order to make clear what exactly we intended”.
Alyson Kilpatrick: Yes, and a decision coming from there on that would have the same force.
Q62 Lord Dodds of Duncairn: We had a bit of a discussion when I asked you whether you would seek to have that done. Just to clarify, and following up on Lord Thomas’s question, you said there that you could ask and that maybe that is the best outcome. What is your position exactly on this? Ultimately, if you do not get any agreement, from your point of view, from the UK Government on your position, do you reserve the right to go to the EU and bring this up with the joint committee, or with the Irish Government, for that matter, or by any other mechanism? Would you consider that?
Alyson Kilpatrick: No. We may have a discussion with them. I am not ruling that out, but it is not our role to go to them and ask them to use a process. That is not directly open to us.
Lord Dodds of Duncairn: Who do you mean by “ask them”?
Alyson Kilpatrick: The Government could say to me, “Is there something that we can do to clarify things for our own sake?”, given that we are there to advise on implementation of the Windsor framework, and we might say, “If you want to short-circuit it, you could go back and ask the specialised committee or the joint committee to determine this”. I do not mean that we would request or require them to do it. We cannot do that.
What I was trying to say earlier—again, maybe I did not make this terribly clear—is that it is not our job to advocate for anything over and above what the Windsor framework was as written down and agreed, and our role as set out in legislation. If it ends up that the EU agrees with the UK Government’s position post Dillon, it is not for us to challenge that. It is not for us to try to use a process that was not put there for us. We confine ourselves to our own remit and processes. When I answered yes to “ask”, what I mean is that they may ask our advice on what is now available.
The Chair: Thank you all very much for your evidence, which has been extremely interesting and helpful. I just remind you that a verbatim transcript will be sent to you for correction, and we look forward to the follow-ups that I have tricked you into agreeing to give and that will be useful to us; I apologise for giving you extra work. I am now going to draw the panel to a close.
