13
Examination of witness
Jon Burrows.
Q82 The Chair: The Northern Ireland Scrutiny Committee is honoured today to be in the Senate Chamber of Parliament Buildings here in Stormont as part of our visit to Belfast. We are now holding the seventh public evidence session of our inquiry on Article 2 of the protocol/Windsor Framework, the so-called non-diminution of rights provision, and we will hold further sessions of this kind with Northern Ireland political parties throughout today. We are pleased now to be joined by the leader of the Ulster Unionist Party, Jon Burrows MLA. You are very welcome, Mr Burrows, and we very much look forward to your evidence. We would be grateful if you introduced yourself briefly the first time you speak. Today’s meeting is being broadcast and a verbatim transcript will be taken for subsequent publication, which will be sent to all witnesses to check for accuracy. I ask you to introduce yourself, if you would like to, for the record.
Jon Burrows: Thank you, Chair. I am the leader of the Ulster Unionist Party.
The Chair: Is there any preliminary comment or statement you would like to make?
Jon Burrows: I will say that the Ulster Unionist Party was the unionist party that negotiated the Belfast agreement. At its heart was the protection of rights, and we do not shy away from that. The UK has given the world many of the rights that it now enjoys, and it led the way, but unfortunately Article 2 of the protocol has become not a shield for protecting rights but a sword for cutting through rights in terms of the sovereignty of the United Kingdom. The fundamental premise of the Belfast agreement is that Northern Ireland remains part of the United Kingdom wholly unless the majority of people vote otherwise. I will go into more detail on your questions, but that is my fundamental concern about Article 2 of the protocol.
Q83 The Chair: Arising from that, Mr Burrows, in your view, why did the UK and the EU negotiate and include Article 2 in the protocol/Windsor Framework, and what really is its political significance as you see it, as leader of the Ulster Unionists?
Jon Burrows: I do not know any good reason why the UK did it. My view is that the Belfast agreement is an internationally ratified agreement, and it is right that the UK Government uphold their obligations. I think there is a tendency—and some will disagree with this—of the UK Government, when it comes to negotiations around Northern Ireland, to take a supine view when it comes to a human rights lobby or lobbying by Dublin in terms of how things should operate here. I just call it as I see it, because this happened with the trade border too: the UK Government still live under a shadow of the threat of instability, disorder and even terrorism, and this affects their judgment in how they deal with matters in Northern Ireland.
The argument for Article 2 is that it would provide a standstill protection for rights as they were the day before we left the European Union. That may be defensible, even though I do not believe it is necessary because you have such strong guarantees in the Belfast agreement and the Human Rights Act, which incorporated the ECHR into domestic law. But it is totally indefensible once that protocol becomes a dynamic vehicle upon which you can disapply UK law in Northern Ireland. So I think it is a lack of stomach by the UK Government in order to hold the line in negotiations in which Dublin or nationalists are involved. I do not mean that with any disrespect to Dublin or to nationalists—they should argue and advocate as hard as they can—but I think the UK Government are just too supine when they deal with these matters.
The Chair: Others have said to us that they feel that the Government of the Republic do not really recognise and fulfil the intentions of Article 2, particularly in relation to cross-border issues and certain investigations. Is that something that concerns you and your party?
Jon Burrows: Fundamentally so. The Irish Government have the absolute audacity to take an interstate case against the UK on legacy when they have a record of refusing to extradite 97% of requests for terrorists who murdered our citizens here, Catholic and Protestant, during the Troubles. They still do not co-operate with the ICRIR, which is asking for information about live investigations into the murder of our citizens, both here and in Great Britain. The Irish Government still refuse to give that information. So the Irish Government are failing on legacy. Unfortunately, the UK Government are led by the nose by the Irish on that. In many ways, it could be the UK taking the interstate case against Dublin, not the other way round.
Q84 Lord Dodds of Duncairn: It is good to have your evidence here this morning, Jon; thank you for coming. You have been pretty strong in your criticism of the need for Article 2 of the Windsor Framework. In terms of its relationship with the Belfast agreement, the Good Friday agreement, how do you think it sits with that agreement? Many would argue that there is a real problem. I remember the former leader, one of the negotiators of the Belfast agreement, Lord Trimble, who castigated the protocol/Windsor Framework in trenchant terms as a breach of the Belfast agreement that he had helped to negotiate. What is your view? How do you think Article 2 relates to the provisions of the Belfast agreement itself, with all that that entails?
Jon Burrows: I think it totally upends the Belfast agreement, because at its heart is a principle of consent—that Northern Ireland remains part of the United Kingdom until the majority of people say otherwise. That is not replicated now in legal constitutional reality. So not only do we have the separate issue of the trade border; we have a situation whereby laws and directives from the EU can apply in Northern Ireland but be disapplied in Great Britain, and they have no legislative basis or consent from the people of Northern Ireland or indeed Westminster. That fundamentally undermines the sovereignty of Northern Ireland in the United Kingdom, which is the cornerstone of the Belfast agreement.
Lord Dodds of Duncairn: Would you say that was true of the Windsor Framework, the protocol, in its entirety? Specifically in relation to Article 2, what do you think is the main challenge to UK integrity or sovereignty in that regard? Do you think that is as serious as the trade issues, or more serious? How do you rate it in terms of Article 2?
Jon Burrows: It is potentially more serious because it goes to the heart of our constitutional position, our laws, where our judiciary take its lead from. The trade barrier is a serious issue because of course, any nation should have frictionless trade. It feels sometimes like it is a logistical problem—a very big one if you are a business—but Article 2 is a problem that is fundamental to the human rights landscape here, our constitutional position and the sovereignty of Westminster. Even though the Dillon case in the Supreme Court clipped the wings of Article 2, it still has the capacity to disapply UK-wide laws in Northern Ireland.
Let me answer your question directly. I cannot speak for David Trimble, but I can speak for the Ulster Unionist Party corporately. If Article 2, as it is currently written and has effect, were part of the Belfast agreement, I do not think the party would have signed it. It fundamentally changes the Belfast agreement, and it is unacceptable. It damages the legitimacy of this place, and it damages the legitimacy and sovereignty of UK law throughout. These are grave matters.
Q85 Baroness Foster of Aghadrumsee: Thank you very much, Jon, for your evidence thus far. You briefly mentioned the Dillon case. Of course, we have been looking at the Dillon case and what it means for Article 2. I would be very interested to hear your response to the Dillon case and the judgment, and how you think that will work through now, given, as you have said, that it has narrowed the interpretation, shall we say, of Article 2, in so far as the Supreme Court is concerned.
Jon Burrows: Thank you for the question. I welcomed the Dillon case result by the Supreme Court; I think the Belfast court got it catastrophically wrong, so as a direction of travel it is positive. But it does not rule out entirely that Article 2 can be used to disapply UK-wide laws in Northern Ireland. Yes, the scope is much narrower and what the applicant has to show is much tighter, but the principle is still there. That is not only a fundamental challenge in any democracy that should offend, frankly, every parliamentarian in the country but, even in dealing with exempt and reserved matters, that they could pass a law and go through all of the mechanics, the consultation and the debates and get Royal Assent, only for it to be disapplied, should shock any of us. So I welcome the fact that it has been narrowed in scope, but it still remains a sword that can cut through our sovereignty. It may have been reduced in size, but it is still there. What is needed is for the UK Government to legislate so that Article 2 is completely neutered as a way of disapplying UK-wide law.
Baroness Foster of Aghadrumsee: Just as a follow-up, you said it has severe implications for parliamentary sovereignty. Would you go so far as to say that Article 2 is anti-democratic?
Jon Burrows: Yes, it is anti-democratic. It is anti-rights, and it runs completely contrary to natural justice, the Belfast agreement and the delicate constitutional settlement we have in this country that has given us peace.
Q86 Baroness Ludford: Thank you very much for your evidence; it is much appreciated. I have heard what you said about Article 2 and Dillon. To what extent do you think the Dillon case brought clarity on Article 2 and the protection of rights? To the extent that you think “yes” or “no”, how could further clarity be provided?
Jon Burrows: Dillon, through the Supreme Court, has narrowed the grounds upon which UK law could be disapplied. What you would have to cite is now much more specific, but it can still be disapplied. So it is a slightly smaller problem, but it is still a fundamental problem of constitutionality and democracy. In that way, Dillon changed nothing. It narrowed the scope, but the scope and the principle remain. We have no certainty in Northern Ireland, because a law could be passed in Westminster that we believe applies to us, and we could find out at a later date, through litigation, that it does not. That is not a democracy.
Unfortunately, people have taken a view on this: if they were in favour of remain, they simply say, “Well, that is okay”; if they were in favour of Brexit, they say, “It is terrible”. I hate to use the Orange-Green thing but, generally speaking, the nationalist side think it is nothing to worry about, while the unionist side are saying it is horrendous. Anybody doing any objective analysis of this—our party backed remain, because we foresaw problems—should say that it is a fundamental breach of sovereignty that a law passed by our sovereign Parliament could be disapplied by a judge following a case brought by a citizen of our country.
Baroness Ludford: You replied to Baroness Foster that you would ideally like the UK Government to legislate to neuter Article 2. Parking that for the moment, because it is quite a high bar, is there anything short of that that you think could clarify Article 2 or put some constraints around how it would be applied or what it could be applied to? Are there some boundaries that could be put around it?
Jon Burrows: I am always open to review if people come up with practical solutions, but the fundamental problem with this is that Article 2, as it is currently set out, has legal effect. We can have all kinds of understandings and clarifications, but this is the most litigious part of the United Kingdom and perhaps the most litigious part of the EU; whatever the Government do to clarify it, someone will test it. It needs a primary legislation firewall to make sure that EU law cannot apply to Northern Ireland without it either pre-existing our exit from the EU or being mandated by Westminster or Stormont. I am not an expert on this, but I cannot see how that can be done through any other way than clear legislation.
Q87 The Chair: If you will forgive me, I will act as devil's advocate for a moment. Do you accept that at least some people were, or maybe still are, of the belief that Article 2 was a guarantee, not a diminution, of rights in Northern Ireland? Do you accept that what you are saying negates that view and is possibly a little exaggerated?
Jon Burrows: No, I do not believe it is exaggerated, but that is a fair question. Article 2 was to provide a standstill arrangement, but clearly there is a dynamism in it. The Dillon judgment might have tempered that, but it still exists.
The Chair: Do you think the dynamism in it—I understand the dynamism of the suggestion—was designed to ensure that people did not have a diminution of their rights as a result of the relationship with the European Union, and that it left the law and the courts open to enforce the rights that existed before Article 2?
Jon Burrows: No, I do not. Among those who propose that, there is a fundamental misunderstanding of the role that the EU played in peace in Northern Ireland and in the Belfast agreement. The Belfast agreement sets out a series of rights. The Human Rights Act incorporated the European convention into domestic law. If there is any suggestion that the UK has breached the Human Rights Act, there is legal recourse there. We also have more accountability and equality bodies in Northern Ireland than anywhere else, and they often do a very good job. So there is no real risk of a diminution of rights because we left the EU. We have some of the most developed rights.
My old job was in the police service. That is an example. Rights, protections and all these commissions are a bit like cholesterol—there is good and bad. Sometimes in Northern Ireland we are crippled by trying to get things done in what is a minefield. I will give you a very brief example: we had a police service case recently where the chief constable said—this is a bit tangential, but it goes to the heart of this—that police officers in Northern Ireland are more likely to let themselves be assaulted before they use force than those anywhere else in the United Kingdom. Because we are such a litigious society, with so many accountability bodies and such scrutiny, it has almost jammed up our police officers' operational decision-making. This is one of the places on earth where human rights are most scrutinised, certainly in the Western world, and we did not need Article 2 to protect us.
Lord Dodds of Duncairn: To follow up on what the Chair was saying, your argument, Jon, is that on this issue of Article 2 guaranteeing no diminution, the reality is that the existence of Article 2 represents a diminution in the sense that people get laws applied to them in Northern Ireland that they have never voted for and that they have no representation on, which is a diminution of everybody’s rights. I just want to clarify that that is your view—that the argument that this guarantees no diminution in itself is a diminution of everybody’s rights?
Jon Burrows: Yes.
Q88 Baroness Ritchie of Downpatrick: Thank you, Jon. You are very welcome. Given the evidence that you have already given, how would you see those rights being protected as per the Belfast/Good Friday agreement? I suppose you have already answered some of this, but what is your overall assessment of the success of Article 2 of the Windsor Framework in ensuring the protection of rights following the UK’s exit from the European Union, bearing in mind the section in the Belfast/Good Friday agreement that deals with rights, safeguards and equality provisions?
Jon Burrows: There is a section that is internationally binding on the United Kingdom, and I do not believe that Article 2 was required to make it thus. I do not think it has been successful; it has undermined the Belfast agreement. Can I have the first part of your question again?
Baroness Ritchie of Downpatrick: Bearing in mind your position, how do you think rights would be protected in Northern Ireland, bearing in mind the RSEO section of the Belfast/Good Friday agreement?
Jon Burrows: You have a very developed and sophisticated architecture for enforcing human rights throughout the United Kingdom, but in particular in Northern Ireland.
Baroness Ritchie of Downpatrick: Through the Human Rights Act?
Jon Burrows: Through the Human Rights Act, and you have a plethora of bodies that will police compliance with it. We have the Equality Commission, the Northern Ireland Human Rights Commission—we have commissioners for all kinds of different things. Ultimately, the European convention was incorporated into domestic law. There could be an argument for a supplementary Bill of Rights—that was in the Belfast agreement—and those things are all possible, but ultimately the ECHR is in domestic law.
Baroness Ritchie of Downpatrick: You mentioned a Bill of Rights. Would you see a Bill of Rights for Northern Ireland replacing Article 2?
Jon Burrows: Something you could consider is a UK-wide Bill of Rights. I always thought that the UK has given the world a lot of the language and laws that it now relies on. I am a great advocate for what the United Kingdom has done through Magna Carta and its common law. We should be proud of that. I think the Bill of Rights is one option, but I go back to my original assertion that the human rights framework developed under the Belfast agreement is the gold standard. It does not require any supplement. Article 2 has undermined it and the principle of consent.
Unionism was split down the middle on the Belfast agreement. It was probably 50/50 if you crunch the numbers. But if you had told unionists at the time, through an asterisk beside the principle of consent, that there would be a future Article 2 which says that, even if Westminster passes a sovereign law, it might be disapplied because you are in Northern Ireland and you are not really in the rest of the United Kingdom, 90% of unionists would have rejected it. These are fundamental issues of democracy, our constitutional settlement and the rule of law and sovereignty in Northern Ireland. It should be seen that way, regardless of your views on Brexit or your future aspirations for the United Kingdom or a united Ireland. This is simply an issue of democratic deficit. We used to talk about democratic deficit in Northern Ireland because we did not have direct rule; this is democratic deficit supercharged.
Q89 Baroness Sanderson of Welton: Nice to meet you; it has been interesting listening to you today. You have a very clear view on what Article 2 is and does, but do you think the public more generally understand what Article 2 is? Do they have a view on it? If they do not relate it to Article 2 specifically, do you think there is a sense within the public of a concern about their rights, or whether they have been diminished in any way?
Jon Burrows: It is a very good question. Cullybackey is in my constituency; if you asked 100 people in Cullybackey about Article 2 of the protocol, they would look at you and probably not really know what you meant. If they did, they probably would think you were talking about Article 2 of the European Convention on Human Rights on right to life. They might not know all the minutiae of the terms, but unionists would have a sense of unease about the overall position that we are in—an Irish Sea border, a rights border and cases such as Dillon. There is a deep unease. They might not know the terminology, but unionism is very uneasy about the situation we are in.
I worry in the long term that it will be used to undermine our institutions. The TUV has a simple slogan of “No Irish Sea border”, for example, and it is very effective. It wants to pull down Stormont, which would bring us back into direct rule and would be a disaster for the UK and for Northern Ireland, because Sinn Féin would say we were a failed statelet. The UK Government, who have been supine in many ways on the deal with Northern Ireland, would probably give Dublin a greater say to try to counterweight not having a Northern Ireland Assembly. It would be disastrous for everything in Northern Ireland if these institutions collapsed. If we do not deal with the protocol and the Irish Sea border, it will give more succour to those people who want to pull this place down. Once this place is down, it might never be back up again. So, the man in Cullybackey might not know exactly what Article 2 means, but he is deeply uneasy about this whole situation that we are in, and it is causing a real problem in unionism.
Q90 The Chair: Would your views be different if, as some are suggesting, the United Kingdom was to leave the Council of Europe and therefore the convention? Would Article 2 then be clearly a guarantor of human rights in Northern Ireland because that other guarantee had been removed?
Jon Burrows: Potentially, but I am always very wary about this withdrawal from the European Convention on Human Rights. I did my master’s in law and human rights law.
The Chair: I noticed that.
Jon Burrows: I will answer your question indirectly to begin with. I think the problem with the European Convention on Human Rights is not what is in it but how it is applied and interpreted, daftly sometimes, by judges. The interpretation of the ECHR is a big issue, which might be remedied if we left, because you will still have other rights that the UK judges will have to interpret. I also think it would be an absolute disaster for Northern Ireland because you would open up another front.
The Chair: Is there not a contradiction between your enthusiasm for the European Convention on Human Rights and the fact that the European Court of Human Rights, much criticised for the relatively low quality of its judges, some would say, is a “foreign court” which is guaranteeing rights in Northern Ireland and the rest of the United Kingdom?
Jon Burrows: Yes, but the sovereign Parliament has decided that we are in the ECHR and has ratified it. If a majority of parliamentarians decided otherwise, then we would leave. But that would be with the express consent of the majority of people in Westminster. That is different from the workings out of the protocol, where the majority of MPs in the House of Commons and the Lords pass a law that is taken out of their hands and disapplied—that is an entirely different situation. I think that leaving the European Convention on Human Rights, even if the same rights could be enforced just through a domestic human rights Act, in reality would just open up a can of worms for Northern Ireland. I could see the Government again coming to some arrangement where there would be another rights border in the Irish Sea.
The Chair: Again, as devil’s advocate, is that not a flawed analysis? It is not just legislation but debate that decides what the UK Government do. The Good Friday agreement and all the Northern Ireland legislation we are talking about has been extensively and fully debated in the British Parliament in London and approved, has it not?
Jon Burrows: It has, but that does not change the fact that, under the protocol and even after the Supreme Court treatment of it in Dillon, they can still change—without any democratic vote—a law in Northern Ireland that was passed by Westminster. That is a fundamental breach of sovereignty. My views on the ECHR are somewhat tempered by realpolitik: the UK leaving the ECHR would simply open up another front on which we would have endless litigation and battles over people saying the Belfast agreement has been fundamentally broken. It would cause tensions in this place. I think we need to deal with Article 2. Dillon does not do that fully and the Government need to legislate for that.
Q91 Lord Elliott of Ballinamallard: Thank you, Jon, for your attendance. I think you have answered part of the question, so I will rephrase it slightly. In the light of the Dillon judgment, how would you interpret, and recommend, that any new legislation meets the principles of Article 2 of the Windsor Framework in principle, whether in Westminster or here in Stormont?
Jon Burrows: All legislation goes through that equality screening. For me, that is the key to making sure that it is compliant with our obligations under the European Convention on Human Rights. It is inherent in the way we do legislation in this country, and that is the solution.
Lord Elliott of Ballinamallard: Do you believe the Dillion judgment makes any difference to that?
Jon Burrows: It does, yes, because Dillon, even though circumscribed in terms of the Supreme Court judgment, still has the capacity to change our laws despite it going through that screening. There also seems to be a future-facing element to this: there are future directives or EU laws that could still be applied. At the end of the day, we have a very settled and developed democracy here in the United Kingdom, and I think the way we make laws is consistent with our obligations under the Human Rights Act and the ECHR. I do not think it needs Article 2 whatsoever.
The Chair: Whenever a Bill is presented to the Houses of Parliament, the relevant Secretary of State has to certify whether the Bill does or does not comply with the UK’s obligations under the ECHR, and that goes on the front of the Bill. We have had it suggested to us that something similar should be added to each Bill to ensure that it is certified as to whether that Bill applies properly Article 2 and human rights requirements in Northern Ireland. Do you think that would be helpful?
Jon Burrows: It is an option that I would certainly take away to consider. There is scope for those practical things. If our sovereign Parliament has made that judgment and voted on that, it cannot be reopened. I think there is merit in considering that.
Q92 Baroness Ritchie of Downpatrick: Jon, could you clarify for us again how those rights in the RSEO chapter of the Good Friday agreement would be protected if there were not an Article 2 of the Windsor Framework, considering that some of those rights, as some have suggested to us in evidence, find their origins in European Union laws?
Jon Burrows: People can still litigate without Article 2. They still have all their rights under our Human Rights Act, with us as a signatory to the ECHR, to take action. I do not see that Article 2 guarantees that at all.
Baroness Ritchie: How do you view the dedicated mechanism that is undertaken or implemented by the Equality Commission and the Human Rights Commission?
Jon Burrows: They do their job, but I do not see that their job relies on Article 2. They are both extremely vocal bodies. The other thing is that we are in a society where people have recourse to the court. I do not see the basis on which Article 2 actually protects or augments rights here. I do not think it is necessary.
Q93 The Chair: Can I go back to something you have just said, and said earlier, about the courts? Like you, as a young lawyer, I took a great interest—and still do—in the separation of powers, and you seemed to be implying that Article 2 has compromised the separation of powers by forcing judges in Northern Ireland to make what I think you would describe as political decisions. Yet if you look at the number of judicial review cases taken in Northern Ireland, proportionately, they are much smaller in number than those taken in Great Britain; there is far less appetite for judicial review. I met with senior lawyers in Belfast and they were surprised that there were so many judicial review cases in GB. Do you have any comments about the separation of powers consequences beyond what you have already said?
Jon Burrows: No, other than that that division between the legislature, the Executive and our judiciary is fundamental, and I think that Article 2 drives a coach and horses through that.
The Chair: I am just trying to understand this, partly because you may well be right. Is that because Article 2 is a constitutional provision, whereas, normally, judicial review is of legislative provisions? Therefore, are you saying that it drags the judiciary into constitutional issues, which normally they would not deal with—though occasionally they have had to, for example with the Boris Johnson Prorogation legislation?
Jon Burrows: Yes, absolutely. They are arbitrating on constitutional issues, as opposed to legislative issues or administrative reviews of whether decisions are reasonable. That is fundamentally different, and it puts our courts in a position that, constitutionally, I do not think they should be in.
Q94 Lord Dodds: I come back to the issue that Lady Ritchie raised about the dedicated mechanism of the Human Rights Commission and the Equality Commission in Northern Ireland. We heard evidence yesterday, and have heard previously, about the way these bodies are viewed across the community generally. What is your thinking on the effectiveness of both those bodies taken together and the confidence of the community across the board?
Jon Burrows: I suppose there is my view and then I can give a sort of temperature check from unionism. I hate us ever being presented as against human rights, checks and balances, and all those things. Unionism is deeply sceptical about a lot of those institutions and bodies. There is a feeling that there is an inherent bias towards—I am calling it what the unionist community sees it as—nationalism and left-wing issues. There is a challenge there for unionists in making sure that they are properly represented. For young people who are attracted into the law, there tends to be disproportionality now in terms of Catholics and Protestants. I do not like to get into the religion of police, but we have a lot of commentary about the police service being 70% Protestant and 30% Catholic. Journalism and the law seem to attract people on a different scale. We have to recognise that there is a sense that there is a much warmer relationship with the equality bodies within the nationalist community. In the unionist community, there is scepticism. That is not necessarily me criticising those bodies, but that is the perception.
Q95 Baroness Ludford: You have said that you would rather not have Article 2 at all. You did make a comment that a standstill may be defensible but your real problem is with the dynamism—the dynamic alignment. Are there areas of EU law that you would identify that would particularly worry you should they come in through that dynamic alignment channel?
Jon Burrows: I think they all worry me, frankly. It is a constitutional issue. We could specify specific areas, but the bottom line is that it should not be dynamic at all. It was not sold as dynamic. It was sold as a line in the sand—this far and no further—and, clearly, that is not the case. The dynamism needs to be drawn from it.
I believe in rights. In this country, people died for the rights that we have today. We uphold the right to life, and there are those who want to take it from us. Northern Ireland is a very different place from what it used to be. I do not want to sound sceptical in giving firm testimony here today, but there were things that were not right in Northern Ireland. We did not always get things right. There was a need for fair employment laws. There was a need to get things changed. But the landscape we are in now is completely different from what it was 50 years ago.
For most people in Northern Ireland, they just want to get on with their life, and they believe that the state is fair, but things like Article 2 are driving a coach and horses through our democracy. I believe that the unionist feeling on this will gather and mount. We are coming up to election time, and it will become louder. I worry because, if this place ever collapses, people think it will never come back up again, and then the central plank of the Belfast agreement will be gone. One of the undermining factors to this place is the protocol and the Irish Sea border.
Q96 Baroness Foster of Aghadrumsee: Jon, you made some comments about the ECHR. There are a number of national parties now on record saying that, if they are in a position of government after the next general election, they will leave the ECHR. If that is a decision taken by our national Government in London, what do you think your position would be? It is your position that you believe in parliamentary sovereignty; you believe that that is what must be protected. If that is the decision of our national Parliament, what then will be your position on the ECHR?
Jon Burrows: If that is the decision of the national Parliament, it is the decision of the national Parliament. It is a bit like our position on Brexit. We said with our head, “Do not leave”, but with our heart many of us wanted to leave. We accepted the decision because the majority of people in the United Kingdom made that decision. But, of course, we did not leave—Northern Ireland did not leave.
That is why I would raise my concerns about the European Convention on Human Rights. It is not that I do not believe that, domestically, we can guarantee all those rights. I believe that we can. The “but” is about what happens in Northern Ireland. I just do not have trust. I have heard politicians from when I was this high say, “Northern Ireland is as British as Finchley”. But when it comes to it, suddenly, the “No, no, no” becomes, “Okay, we will do a deal”. Nigel Farage might say that he will take every inch of the United Kingdom out of the ECHR, but when it comes to it, I worry that Northern Ireland will be left in a quagmire. Whatever the rights and wrongs of it, I have never seen the UK Government simply say, “Sorry. Northern Ireland is part of the union”.
Q97 The Chair: Given your view of the ECHR—it is an interestingly nuanced view—and given that we have devolution to Northern Ireland, if the United Kingdom were, as Baroness Foster has suggested, to leave the ECHR, would you expect this Parliament to try to create its own Bill of rights to replace the rights that are underpinned by the ECHR in GB?
Jon Burrows: First of all, I am not an expert on whether they would have the jurisdiction to do that.
The Chair: Let us assume that there was the jurisdiction.
Jon Burrows: If there was the jurisdiction, some would. First, I will sound a warning that there are politicians who would love to walk away from this place and have something to blame for it. Sinn Féin, particularly at the moment, are losing support in the polls, so that would perhaps be something that they might want to cling on to, to say, “Oh sorry, the Belfast agreement is fundamentally breached—we are walking”. That would not be the right thing to do, but could they do it? I think they could.
You ask a hypothetical question. It would certainly be debated. There would be those who would say, “Let’s do it”, if they could do it. I cannot see this place—which sometimes has difficulty passing any legislation whatever, and when it does, it is horrendously bad at times—passing a Bill of rights. I can see petition of concern over it. I just do not think it is reality. It is so contested. And how it would be drafted by some people on one side would be entirely different from what it would look like from people on the other side. I think it would be destabilising for Northern Ireland, and I say that with head versus heart, a bit like I do for Brexit.
Q98 Baroness Ritchie of Downpatrick: As we live in a divided society in Northern Ireland, Jon, how would the rights of all of the people—unionists, nationalists and others—be protected if there was not an ECHR, or a Bill of Rights, or an Article 2? I realise that that is in supposition territory.
Jon Burrows: I believe that all people are created equal and have absolute equality of rights. They should have equality of opportunity and be fairly treated. I make that absolutely clear. Frankly, I do not care about someone’s religion. I go to my own church and, as far as I am concerned, Catholics and Protestants worship the same God.
I think the question you ask is more one of perspective than legal reality. Leaving aside any political protestations, if we had a workable Bill of rights that replicated, for example, much of what is in the ECHR, it would be accessible no matter your religion or constitutional position. Whether it originates as an ECHR or some domestic Bill of rights, it would be the content that would make the difference. You would still have equal access to take a case. The laws would still be equally applying to you, so it is really a political perspective as to whether that should be best done through an acre or domestic Bill of rights. I do not think that it would actually change the rights that any individual would have.
The Chair: We have run out of time now, but thank you very much indeed for an extremely interesting three-quarters of an hour or so on some very important subjects. You have been clear and have made your and your party’s views very evident to us. I draw this part of our session to a close. I remind you that a verbatim transcript will be sent to you for correction, and I thank you for your evidence.
