15
Examination of witness
Matthew O’Toole.
Q99 The Chair: We are now holding the eighth 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 with Northern Ireland political parties during the day. We are joined now by Matthew O’Toole, the SDLP’s Leader of the Opposition here at the Northern Ireland Assembly. Mr O’Toole, you are very welcome and we very much look forward to your evidence. We would be grateful if you could introduce 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 you to check for accuracy.
Matthew O'Toole: Thank you, Lord Carlile. Thank you, members of the committee, for having me. I am Matthew O’Toole MLA, the Leader of the Opposition at the Northern Ireland Assembly, which is a relatively new role. I am also the SDLP MLA for Belfast South.
The Chair: In your view, looking at the background, why did the UK and the EU negotiate and include Article 2 in the protocol/Windsor Framework? What has its political significance been since it was created?
Matthew O'Toole: Before I answer the question, I would like to give a note of gratitude to this committee for its continued engagement on these matters and on Northern Ireland issues more generally. The quality of the scrutiny on a cross-party basis has been very notable.
As a note of coincidence, I was sitting in your chair, Lord Carlile, yesterday as chair of the Committee for Finance, and we were dealing with correspondence that came from your committee about Windsor Framework-related matters. We are grateful for that correspondence; it is most helpful. I wanted to put that on the record on behalf of my committee.
The Chair: Thank you very much for that. We sometimes think that we may over-correspond a little, but we want to keep up our activity at a level which worries the Government from time to time.
Matthew O'Toole: Obviously, it is the committee clerks who are the most burdened with the correspondence, so, after we are gone, they probably can talk about how much correspondence committees generate. However, it is useful and it gives clarity to proceedings.
In answering your question, I should say that these are my observations; I do not claim to be a jurist or a human rights specialist. When I was talking with Lord Elliott outside, I said that the nature of my job means that often I have to try to appear to be an expert on everything. I am not an expert on this, but I can give you my view and that of my party on the broad political context of human rights in Northern Ireland pre and post Brexit.
The protocol was originally a part of the Windsor Framework, and the initial purpose of the negotiation from the perspective of the EU—and I think this was the stated position of the UK Government then; I should say in parenthesis that I was, at that time, a UK Government civil servant—was to protect and preserve the Good Friday agreement. Clearly, that then led to a negotiation about what the meaning of the Good Friday agreement was in various ways. There was one set of very complicated and, yes, controversial negotiations. There continues to be a degree of controversy around that and, I think it is fair to say, around the border of the island of Ireland and how it would be kept open for the movement of goods.
There was a separate question about the rights, safeguards and equality provisions in the Good Friday/Belfast agreement and how they would be protected. From memory, that was much less controversial between 2017 and 2020. There was an early agreement from the UK Government that there would be no diminution of rights, and the EU was keen to underpin that. Clearly, the rights outlined in the agreement are broad and aspirational, but they were interacting with a series of other human rights provisions, including European convention rights, and then the domestic writing of those rights into law by the UK Government through the Human Rights Act. Certain rights were underpinned by the European Court of Justice, and there was a specific concern that certain rights which may be justiciable via EU routes might be lost or diminished after the UK left the EU. That is the broader context.
My observation is that, at that time, it was deemed to be, if not uncontroversial, then less controversial than some of the other Good Friday agreement-related negotiations. It was a positive thing that no diminution of rights was included in the protocol—latterly the Windsor Framework. The question is: how justiciable and enforceable are those rights? Clearly, that has come to the fore in various legal cases.
Q100 Lord Dodds of Duncairn: It is good to see you again, Matthew, giving evidence to this committee. You said that Article 2 was negotiated to guarantee the provisions of the Good Friday agreement and so on. First, what do you say to those who are concerned that in the very existence of the Windsor Framework, and Article 2 as part of that, there is actually a diminution of the Belfast agreement? Some would say that it is a flagrant breach—as has been put in evidence to us—in the sense that there is no cross-community consent for these provisions. Indeed, there is some trenchant opposition and criticism.
Secondly, there is the whole issue of the democratic deficit, in that you at Stormont as Leader of the Opposition—or the Executive or anyone—has no say whatsoever in the making of these laws that are imposed on us across large parts of the economy, and indeed on Westminster as well. How do you address the point that there is a deep irony in saying that Article 2 protects the agreement, when many people in Northern Ireland, including some of those who negotiated the Belfast agreement, say the exact opposite?
Matthew O'Toole: First of all—without wanting to relitigate, no pun intended, all of that—the process of the UK leaving the EU was fundamentally destabilising for the entire edifice of the Good Friday agreement. It obviously changed the constitutional context, because it meant that the one major legal, diplomatic and trade-related underpinning of the UK-Irish bilateral relationship was gone. That was the common membership of the European Union. That meant that there would have to be a way of protecting relationships, in so far as that was possible. I recognise that it is deeply complex; it is part of the reason why my party did not want Brexit in the first place.
I acknowledge that there are tensions around how you balance rights going forward, and I suppose that Article 2 is part of that. Is the point you are making about the rights of people who are unionist and British in Northern Ireland—you can correct me if I am depicting this wrongly—to live in the UK as per the Good Friday agreement? Is that not correct; am I missing something?
Lord Dodds of Duncairn: No, the point I am making is about the rights to make laws. It is not a unionist issue; it is an issue for everybody in the Assembly. The people who elect people who are Sinn Féin, SDLP, Unionist, TUV or whatever all have the right to have laws made for them by their representatives—and that is denied. It is not a unionist/nationalist thing; it is a general thing.
Matthew O'Toole: I am not sure I would characterise that as a diminution of human rights, but I would say that it is important to look at the historic context for Northern Ireland when it comes to rights. I do not want to relitigate all of history because I am not sure it is productive, but clearly there was a sense, particularly among people from the nationalist tradition, that the institution that was housed in this building—the old Northern Ireland Parliament—did not respect their rights, to put it mildly. They were not included. That is why there was a civil rights movement. Then there was all the difficult history after that, and the conflict. I do not want to relitigate all of that, except to say that that previous history—and then an appalling violent conflict, which led to deep injustice, murder, the loss of life and serious injury—meant that we were in a context with a more complex rights environment than there would be in other places. Therefore, people need to be confident that their rights are going to be protected. That is why the Article 2 provisions of the Windsor Framework were so important.
To come to your point about lawmaking and who makes the law, I acknowledge that there is a differential position for Northern Ireland, in a pure sense, in that some of the laws or regulations that we follow for our economy are made in the European Union. That is true. That is part of the provisions of the protocol. I do not necessarily see that as a more egregious loss of rights than some of the other losses of rights that have followed Brexit.
Following the negotiation of the Windsor Framework, there have been safeguards; they were put in place after detailed negotiations specifically between your party and the UK Government. They include what is called the Stormont brake and the existence of the Windsor Framework Democratic Scrutiny Committee here. I appreciate that lots of people think that those are imperfect and not good enough, but it is not true to say that they do not exist at all.
I would also say—this is more a political point than a legal one—that lots of the laws that are passed at Westminster are passed without people in Northern Ireland having a say. A point that a unionist would make is that Northern Ireland remains part of the United Kingdom—I respect that; I am not trying to diminish that. But one of the pieces of law which ultimately led to the litigation around Article 2—i.e., the Dillon case—related to the previous Tory Government’s legacy Act, which had no democratic support whatsoever in Northern Ireland, so far as I am aware, from any political party, yet was still passed.
So, I think it is important to take a take a view of how these rights are enforced in the round and understand that we are in a very particular set of circumstances in Northern Ireland where there are rights that have to be balanced and protected. It is not straightforward. I am not trying to give you an evasive answer; I am just trying to answer you in the round.
The Chair: On your point on the legacy Act, is it your view that it would be useful to have a certification on Bills going before the Westminster Parliament, similar to the certification of compliance or otherwise with the ECHR, to cover compliance with Article 2?
Matthew O'Toole: In general, yes, it would be helpful to have clarity around whether these things are compliant. But rather than give you a detailed view on that, we might write to you as a party, because I do not want to commit myself to a specific provision or policy prescription that might be contradicting a colleague.
Q101 Baroness Foster of Aghadrumsee: Thank you, Matthew. I think the last time I was here, I was giving evidence to you, so we are changing roles.
Matthew O'Toole: It is “The Magic Roundabout”.
Baroness Foster of Aghadrumsee: You have mentioned the Dillon case. Obviously, we have been looking at the judgment from the Dillon case, and we have received various views on the outcome of the Dillon case, the judgment and what it means for the interpretation of Article 2 of the Windsor Framework. So, we would be very interested to hear from you what the SDLP’s view is on the decision of the Dillon case.
Matthew O'Toole: First of all, we acknowledge the court case. We are not challenging the right of the Supreme Court to have handed down the judgment. There are very real concerns, though, and we expressed real concerns at the time, about the Dillon judgment.
I have a couple of points. First, I think it is important to say that the people who brought the Dillon case are people who have been victims. I know this is something you have obviously done a lot of work on through your career and something you have a very deep experience of. It is fair to say that victims in our society here, from, as it were, all sides—and I do not like that term—have been failed by our politics. There are many people who live with real pain and trauma, and there has never been any judicial process around the loss of their loved one or the serious injury of themselves or their loved one. That is just a deep injustice. Those are the people who were involved in the Dillon case, and the legacy Act was about removing any meaningful route to justice for them. That is why our view was that it was immoral. So, we were deeply disappointed that the interpretation of the High Court and then the Court of Appeal in Belfast was diminished by the Supreme Court, because our view was that those people deserved better than they were getting from the British Government.
In relation to the specific concerns, I am aware that people who know much more about this than me, such as the Human Rights Commission, have been concerned about particular phrases in that judgment, one of which is that the human rights provisions, and perhaps specifically, Article 2—or more specifically, the original 1998 agreement—were there for the purposes of “ending sectarian conflict”. That has been a bone of contention, it is fair to say, because it is rather a simplistic interpretation of the rights provisions in the Good Friday agreement, for a start. It was not simply about ending sectarian conflict—that is a problematic way to describe it by itself. Clearly, there is sectarian division in Northern Ireland. There was in the past, and there sadly still is now, albeit diminished, and for the large part, thankfully, no longer violent.
The rights provisions are there for a whole range of reasons. They protect the pluralism of our society. This is a contested space: people have different national allegiances and different forms of cultural expression. We have a rights frame, recourse to justice, rights provisions, and the courts, in part because we live in that contested space. So, it was simplistic to simply say it was about sectarian conflict.
There are concerns about the Dillon judgment and some of the language in it. The Human Rights Commission in particular has outlined those. We would like to see more clarity on what the UK Government believe. The UK Government have talked about being committed to non-diminution of rights, but, consistently, their approach in the courts, as far as I am aware, has been to either row back or resile from a more expansive interpretation of those rights. Indeed, I think I am right in saying—though I am happy to be corrected—that one of their submissions to the court during the Dillon case was that they either disowned or disclaimed their own explanatory document from back in 2021. I do not think that does a lot to engender confidence.
There will be different groups who will want to go to the courts to enforce rights here. Of course, part of the reason people have to go to the courts in Northern Ireland is because we have such consistent political dysfunction and failure here, and we have a very complicated past. If the UK Government are disclaiming or disowning their own guidance around their non-diminution of rights pledge, that does not fill those people with confidence, so we are concerned about it in that regard.
Baroness Foster of Aghadrumsee: I think you will accept that, if a Government change in Westminster, they have their own right to interpret what Article 2 means. We have taken a lot of evidence on the issue of the explainer document and the fact that it has now been taken back. We have asked questions about whether there is going to be another explainer document, and we have not got clarity on that, it is fair to say. But I think you will accept that, if a Government change in Westminster, they have their own right to explain what they understand Article 2 to mean—or do you think it is set in time?
Matthew O'Toole: Yes and no. Let me put it this way: the phrase “non-diminution of rights” is clearly not ultra-specific. There is a list of very specific things that are protected—am I right in saying?
Baroness Foster of Aghadrumsee: Yes.
Matthew O'Toole: The Dillon judgment draws a distinction between those and rights which are derived elsewhere, or which are slightly less clear in the text of Article 2 of the protocol, the Windsor Framework—albeit both Belfast courts took a different view on that.
In relation to your point about one Government and another, the principle in a parliamentary system is obviously that one Government do not bind the hands of another. But the reason for international treaties and international law, and them being justiciable in a court, is that citizens and other international actors—other states—are entitled to say, “You might be of a different party, but you signed up to this”.
One example would be the Good Friday agreement. This has been in the news recently; I am certainly not opening this up for discussion now. But you would not accept, nor should you accept, the idea of a UK Government saying that they have decided now that, on the principle of consent in relation to Northern Ireland, they have a different interpretation of what that means. That is a specific thing. I am honestly not trying to open up the constitutional debate, but I am just giving an example. A UK Government could say the threshold of consent should be that 25% want a united Ireland, or 75% want a united Ireland. In both of those cases, a unionist or a nationalist would say, “Actually, I do not care whether it is a Labour Government or a Tory Government now—that is ridiculous”.
Q102 The Chair: Forgive me for interrupting you—you are making a very interesting point, and I want to slightly refine it, if I may. Do I understand you to be saying that, as Baroness Foster has said, a new Government have a perfect right to reinterpret legislation or to change it, if they can get a majority in Parliament, but I think you are saying there is a second level of documentation, an international treaty, which may require a slightly higher level of approval before it can be changed?
Matthew O'Toole: I would say that, if it relates to fundamental rights, yes, that is right. But in relation to Northern Ireland and the complex set of arrangements we have, the deep injustice of the past and the complexity we are going to have to navigate in the future, words have to mean something. They cannot simply be washed away by the next political cycle. The Good Friday agreement, or indeed subsequent agreements, would not have been viable if the different parties to it felt any future Government, whether Labour, Conservative or Reform—and the Reform point may well become pertinent in the future—could just abjure this because it is a change in government policy. I would draw a distinction, in Northern Ireland terms, with government policy on education. Clearly there is a difference in emphasis between the Labour and Tories on education policy, but that is not the same. I personally do not then think we can say, “Well, that’s grand. We can simply accept that your commitments to human rights, the constitution and legacy to the people of Northern Ireland change with the Government of the day”. I suppose that they are legally able to do that, but they have to accept that there will be a profound consequence, and you are seeing that consequence in our society.
Part of what you are seeing is that trust in successive UK Governments has diminished. For people who are unionists, nationalists or neither, it has diminished, as it has in your former party, in Sinn Féin, in my party and the Alliance Party. Basically Brexit—some people would say it happened before then, as there is some argument that the previous Conservative Government did some things that were not ideal—warped British politics, in my view. It put new pressures on British Governments to take ever more extreme positions and got them into legal difficulties, which gradually reduced their ability to have some kind of broad base of trust. It is not that republicans and nationalists were ever highly trustworthy of the UK Government, but we understood a vague sense of consistency post 1998. That has been undermined, and that is the point that I am making: it is not the same as other domestic policy.
Baroness Foster of Aghadrumsee: I do not want to get into trust in politics in general, because we could talk about that for a long time. We have heard evidence this morning that, if the Ulster Unionist Party had known that Article 2 was coming along, it would not have signed and supported the Belfast agreement. We have received that quite strong evidence this morning, Matthew, and I want to put it to you. They are saying that, if they had known that Article 2 would be in place 10 years later, they would not have signed up to the Belfast agreement.
Matthew O'Toole: It is an odd historical counterfactual to think that David Trimble and the other people in your then party—the now Lord Kilclooney and all these people—would have known that, in 18 years’ time, the UK Government would leave the EU and that they were going to sign a non-diminution of rights agreement. That highlights how destabilising Brexit was, because it throws up all sorts of different things. Other people might say, “Well, if we had thought the UK Government were going to sign into law an amnesty for people who had killed people, whether they were state actors or paramilitaries, we would not have trusted the British Government on a whole range of other things”.
Baroness Foster of Aghadrumsee: I am only putting that evidence to you because we just received it this morning.
Matthew O'Toole: It is a strange counterfactual.
The Chair: There are quite a lot of dramatic questions that one could ask with the benefit of hindsight.
Matthew O'Toole: I just think it is a strange counterfactual. I also think that we do not yet know about some of the outworkings of Article 2. It is still relatively live—the provisions came into force five, nearly six years ago—and, as I said, the party is concerned about the outworkings of the Dillon judgment. We feel particularly for families who still await justice. Obviously, my colleagues in Westminster, and I am sure people in this room, will be working to get the legacy legislation to a place that does right by those families and does not give the state, as is the intention of certain people, the right to sweep certain things under the carpet.
In relation to past counterfactuals, I think it is impossible to say. I suppose that highlights a point that has been made on numerous occasions: at that time, the Good Friday agreement was utterly contingent—even though it was totally implicit, because it was taken for granted—on the UK and Ireland both being members of the European Union. It would not have come up.
Q103 Baroness Ludford: To what extent can you see any clarity about Article 2 from the Dillon judgment? People have said that it left it unclear. Do you see any parameters of clarity about where Article 2 still applies in the light of the Dillon judgment? How do you consider that further clarity could be brought?
Matthew O'Toole: I return to my point that I am not a jurist and nobody looking at my remarks would be fooled if I was claiming to be. So I am not going to get into detailed commentary on case law or any of that, because I would simply be bluffing. In broad terms, the Dillon judgment did not cover or give definitive answers on lots of aspects of how Article 2 is justiciable. It is clear that it is not giving clarity around lots of it.
I have talked about the specific concern and this general sense that the Good Friday agreement rights provisions, and therefore Article 2 of the protocol, are about ending sectarian conflict. That is a problematic phrase.
One of the other questions that came up in your pre-brief was around individuals and groups here seeing that Article 2 protections were there to enable them to seek recourse. I hope that many people do seek recourse because, post Brexit, there is a whole range of areas where there potentially is a diminution of rights—for example, frontier workers. I am not going to go out and offer free legal advice to groups representing frontier workers, but I can give you one example.
The Good Friday agreement, first of all, offers people the right to identify as British, Irish or both, but it is also designed to offer certain protections around social and economic rights. It is harder to be a frontier worker on both sides of the border now, because financial services—this is something I have done a lot on, in the committee in this room—are harder to obtain on a cross-border basis. There are fewer mortgages. There are people who are paid in euros, like in County Cavan and even in County Fermanagh, but their mortgages have to be paid in sterling. That is harder now than it was 10 years ago, as there are fewer financial services products because the UK does not have passporting. I do not know, and maybe I should not be speculating, but there are interesting rights like that where I would like to see these protections at least tested to see whether they are offering some protection.
Q104 The Chair: In going back to the fundamentals of Lady Ludford’s question, on the one hand, one could say that the Supreme Court was accurate and wise in saying, “We are not legislators. We have a framework. We will interpret that framework in the way in which it was meant: to deal with the Troubles and things flowing from them”. If people want to establish their individual rights, they can go to their trade union, for example, and the trade union will bring a judicial review action in the High Court in Belfast.
On the other hand, you might say that the Supreme Court was really unhelpful, because it was very prescriptive about the way in which it interpreted the breadth of Article 2, which means that people are not readily able to go to that trade union official to find out what their rights are; they are forced to go to court, which is slow and expensive. Now, I think there is a strong argument on both sides of those propositions, but where do you stand?
Matthew O'Toole: You would always expect our party to be on the side that believes in greater breadth of rights arising originally from the Good Friday agreement, but that is a concern, as you said.
The Chair: I would expect that, but I also expect your party to be very keen on the separation of powers and on not giving judges too much discretion.
Matthew O'Toole: But here is part of the challenge with that, Lord Carlile. You could think about why a rights framework and recourse to the courts ultimately matters maybe more in Northern Ireland. Obviously, in a human sense, it never matters more for the human in a free society, and this is ultimately about individual citizens; but in the political context in which we operate here, let us talk about the historic context. The exclusion of one particular community for half a century, violent conflict with a massive loss of life and injustice for 30 years, then a peace agreement that sought to create rights that had to respond to some of that pre-history—injustice around the way the place was run and the injustice of conflict—is a historic reason for us to have particular recourse.
There are two subsequent factors that are particularly important here. Number one is the fact that we very often have political dysfunction in Northern Ireland. If the alternative, which is obviously always a point that the judges will make, is to say, “This is for legislators to legislate. We cannot come up with the law. People who are elected ultimately have to create the law”, part of the challenge is that our politics has failed to create rights via law, even when there is consensus. Equal marriage was a notorious example here for a very long time. Our Assembly failed to create the right for gay people to marry, despite it happening elsewhere. Before this institution existed, when we were still in conflict, it took a decade and a half later than England and Wales for homosexuality to be decriminalised in Northern Ireland. We operate in a very particular environment.
To answer the question, “Well, shouldn’t we get politicians to do that?”, I say as Leader of the Opposition that it would be great if we could. It would be great if our legislature was more functional and the public could see rights. One answer to that might be—perhaps members of certain parties might say this—to use some of the rights provisions in a political sense to prevent certain things passing and to see it as a legitimate use of the rights set out in the Good Friday agreement to prevent them. I would see it as preventing progress; they would see it as protecting the prerogative of their community or the people who elected them.
I have just illustrated the tension and, in a sense, why having recourse to the courts and having an expansive interpretation of some of those rights might be more important in Northern Ireland than it is in other jurisdictions with slightly more functional politics.
Baroness Ludford: One view put to us is that a particular problem with Article 2 that creates one of the factors of destabilisation is the dynamism in it—the dynamic alignment. Had it been a standstill about rights, that would have been one thing, even for those who did not want Article 2 at all, but the perpetual threat, if I can call it that, of dynamic alignment makes it a lot worse. What do you feel? Could it be that in some theoretical world, if not a real one, Article 2 would be brought back to a standstill and not have a pipeline of new stuff coming in that nobody really knows what it might be?
Matthew O’Toole: If the counterfactual is a standstill in terms of the rights that existed on 31 December 2020, or 22 June 2016 or whatever, I would go back to my previous answer that that might be a more defensible position. From my perspective—I am not making a legal argument; I am making a political argument here, since this is about politicians and how they interact with the law—I am perfectly happy with a more dynamic alignment in the context of a politics where we often do not keep track of changes in the rights framework even in other parts of the UK.
The Chair: The rights framework evolves. That is a truism. You referred to gay rights; those have evolved in the lifetimes of many of us on this committee.
Matthew O’Toole: But they did not evolve in Northern Ireland. Our political system did not evolve to legalise them. People had to go to court. By the way, the UK Government could have legislated for that if they had wanted to—
The Chair: What I am saying is that human rights evolve, but you certainly have to go to court to turn that evolution into rights that you can enforce.
Matthew O’Toole: But it is also possible for legislatures to legislate for those things. Your former party colleague, David Steel, legalised abortion via a Private Member’s Act in 1967. I recognise that people have very strong views about that subject, but I am giving it as an example. That was a Private Member’s Act of the UK Parliament in 1967; in Northern Ireland, it was legalised because there were successive legal actions and then ultimately the UK Government legalised it in 2019 or 2020. I recognise that that is a subject of some controversy, but I am giving you an example of how we do not really keep track of rights changes.
Q105 Baroness Ritchie of Downpatrick: Matthew, my question leads on from all the other stuff you have said this morning and the other questions. What is the SDLP’s overall assessment of the success of Article 2 of the Windsor Framework in ensuring the protection of rights for the people here following the UK’s exit from the European Union?
Matthew O’Toole: I would say two things. First, we are still strong supporters of the existence of Article 2, but it is probably too early to give a definitive view. As I said, obviously the Dillon case is a concern. We would not want to overstate that and say, “Well now, it’s totally narrow, so people shouldn’t be using it”. As I say, I note the concerns that the Human Rights Commission has offered in its submission to you. I suppose I would restate our broad point that we need to have robust human rights protections, via Article 2 in this case, until there is some other mechanism that replaces it—for example, in some future constitutional scenario. Those will be particularly important because rights were fundamental to the Good Friday agreement, which remains the key touchstone of our settlement society—complex dysfunctional arrangements such as they are, it still remains essential and the rights framework is essential.
If you look at some of the other things that have happened, the legacy legislation, which is hopefully being unwound by the current Government, is an obvious example of why you need a rights framework. If the idea is, “People should trust in the legislature. There should be a functional politics in which people elect their legislators and they do what most people want”, in the Northern Ireland context that just does not work in so many ways, I am afraid to say. That is not to say that politicians are not important, although sometimes we seem to want to make ourselves seem irrelevant here. But think about the context of low trust in our institutions, repeated failure to deliver rights by the devolved institutions, the fact that we have limited traction on issues in the UK Parliament, notwithstanding the work done by members of this committee, and the fact that, candidly, very often UK Governments will when it suits them do things which are deemed to be violations of rights of people in Northern Ireland. Most egregiously, there is the legacy Act, but unionist parties remain furious about the protocol itself. That is an example of how simply trusting a UK Government or the Northern Ireland Assembly to be able to deliver and protect rights is not good enough for people in Northern Ireland, I am afraid.
There are a whole range of other reasons—in terms of language rights, the Irish-language community here is still having to litigate around delivering an Irish language strategy—why we need robust protections more so than elsewhere.
Baroness Ritchie of Downpatrick: Obviously, what you are saying is that you believe in the importance of the dedicated mechanism that is overseen by statute in relation to the Human Rights Commission and the Equality Commission.
Matthew O’Toole: Very much so, and I welcome the fact that they have been given those responsibilities. In one sense, the debate about Article 2 was not a major political story here because the debate was about the protocol, the movement of goods, customs regulations and SPS rules. That is still a live subject for some, although from my perspective, I think it is proven—I note in parenthesis that the most recent economic statistics illustrate that Northern Ireland is growing faster than the UK as a whole—that human rights and Article 2 are essential, and we welcome the fact that the Equality Commission and the Human Rights Commission have been given those rights. But I would want to see probably a bit more awareness of some of these issues among not just the public at large but interested parties who might want to litigate.
The Chair: You have brought us to exactly the next point we were coming to.
Q106 Baroness Sanderson of Welton: Good to see you, Matthew—it has been a good long while. What you are saying brings me exactly on to my question. You say the debate was not about Article 2. To what extent do you think people understand or have any knowledge of Article 2 itself, what it does and how they might be able to use it? You have asked for more awareness and talked about the complex rights landscape here, which is different. So, if they do not relate it to Article 2, do you think there is a sense more generally without knowing—
The Chair: If they do relate it to Article 2, do they know which Article 2 they are relating to?
Matthew O’Toole: No, indeed. Obviously, there are two Article 2s, which can complicate things.
One of the things about politics—obviously, people in this room know this—is that members of the general public have very busy lives. They are not expected to be, and nor should they be, au fait with the minutiae of legislation or, indeed, the legal backdrop to their rights. Lots of people know that the Good Friday agreement created a rights framework and that people have a set of rights here that are derived in part from that agreement, or at least specified in that agreement, but underpinned by other arrangements, including the European Convention, previous membership of the EU and the extent to which EU law written into domestic law underpinned that, and other domestic provisions, including the Human Rights Act—although not, it should be said, a devolved local bill of rights.
To go back to the point I have made before about the failure to provide these things at the devolved level, the fact that we have never been able to provide a bill of rights underlines even more why you need an Article 2 and other sources of it. I suppose it is important that people are aware of—the example of trade unions was given earlier on—the fact that there is a dedicated mechanism with the Human Rights Commission and the Equality Commission. Often people become aware of these provisions only when there is a specific bit of litigation in the news.
Baroness Sanderson of Welton: On that point, you say there is a general awareness that the rights are contained within the Good Friday agreement, but do you get any sense from your constituents, or just more generally, that there is a growing concern—we have heard it as an unease—that those rights might be under threat, or a chance that they may be?
Matthew O’Toole: I think there is a general sense that there has been, post-agreement, a sliding—you might call it backsliding—away from the fulsome commitment to rights that people perceived, or at least felt, was there. That has manifested itself in a number of ways—obviously, in the legacy legislation and even through the Brexit process, with the British Government’s initial commitment to no diminution of rights and then a gradual, “Well, actually, what we meant by ‘no diminution’ was sort of that we did not mean those rights; it’s much narrower than all of that”.
I think people get a general sense of that, and that actually underpinning the complexity of rights that are required in Northern Ireland is gradually becoming political. For example, particular individuals simply want to say, “We’re going to pass a blanket, sweeping amnesty because the politics at the minute says that our party and certain newspapers are demanding that we give an amnesty to our troops; therefore, we are creating a blanket amnesty for anybody. It doesn’t matter whether your loved one was shot in the back by a soldier, murdered by the IRA or murdered by a loyalist gang, we are just going to give a blanket amnesty to everybody”. People get that, and they do not necessarily understand how different human rights frameworks or courts interact. I said earlier on that I cannot claim to be a perfect expert on all these things, and I am a legislator. Individual members of the public are not experts, but they get the general sense that there is an unwinding of the rights framework.
At a local level, people will also see some of the local litigation that happens around language, for example. More recently, there has been litigation on the Parades Commission, which is slightly separate. Broadly, people are litigating about their right for one thing or another, whether you are sympathetic to that right or not. I think people get a sense that this stuff is out there in the ether. I think it is part of a general sense that, at a UK level, there is either less interest or less ability to uphold the set of arrangements that we had post-1998 to balance and protect rights and perspectives. I think that is unarguable. Frankly, that has been the perspective of many unionists as well.
Q107 Lord Elliott of Ballinamallard: In the light of the Dillon judgment, what is required from the UK Government and, indeed, the Northern Ireland Executive to meet their commitments under Article 2 of the Windsor Framework? As a wee supplementary, do you see any way to help give more rights to people who have had loved ones murdered, mainly by terrorists, who see that there is a differential of rights between their loved ones being murdered and those who are killed by security forces?
Matthew O’Toole: In relation to people who have lost loved ones, all I can say is that where things are now is continuing to press for the repeal of the provisions of the legacy Act, which were abhorrent. All parties in Northern Ireland, from all perspectives, said that. There is a need to rebuild confidence among victims, and that includes victims of paramilitaries, as well as all other victims. It is right to say that there is a particular challenge around getting justice for victims of paramilitaries. That is not made easier if there is a political desire simply to say that no member of the security forces must ever face any legal consequences for killing people. Ultimately, I do not think that that is in the interests of people whose loved ones were murdered by paramilitaries. Where the focus has to be now is on ensuring that that legacy legislation is human rights compliant, fit for purpose, compliant with all international legal obligations and, finally, does right by individuals. I will not go through the list of people who have been utterly failed, but victims of all stripes—I hate to use that word, but you know what I mean—have been utterly failed.
To go back to the other question about what the UK Government need to do now on—
Lord Elliott of Ballinamallard: It was about what our Governments need to do, both His Majesty’s Government and the Northern Ireland Executive.
Matthew O’Toole: On the Northern Ireland Executive first, it would be helpful for the Northern Ireland Executive to be willing to legislate in areas where it is agreed that there is a potential for a clear deficiency of rights—for example, the absence of progress on matters relating to racial equality. This summer, I had Indian families sheltering in my constituency office because they, basically, were burned out around the corner. We had riots on the streets of Belfast. What you need is a local Executive who are showing leadership and, where appropriate, using legislative vehicles to uphold rights. Sadly, the leadership of the Executive for the past two decades have proven unable or unwilling to make progress on that.
What the UK Government need to do—I do not want to be too specific, and I am trying to be general—is illustrate, in word and deed, that they are committed to Article 2 and non-diminution of rights, and be clear about that. I worry about future UK Governments. When you have a potential UK Government under Nigel Farage threatening to leave the European Convention on Human Rights, you basically have fundamental jeopardy for the Good Friday agreement and the broader framework that we that we exist in.
The Chair: We have run out of time. Thank you very much for your contribution. It has been extremely interesting, and it was nice to meet you again. I should just deal with the formal side of this, which is that the public element of this meeting is now concluded. You will receive a verbatim transcript of your evidence for correction. Thank you very much for giving evidence.
