I thank the Chairman and the committee for the invitation. I start by endorsing Ms Logan's remarks on the level of engagement we have had with the British and Irish Governments and the Commission's Article 50 task force, and paying tribute to the work of human rights non-governmental organisations. Both the organisations, which are present, and others in civic society have played an active role in the campaign and debate about the ramifications of leaving the EU for human rights and equality.
The six recommendations of the joint committee that were outlined by Ms Logan had twin aims, namely, to preserve the existing human rights protections and keep pace, at the least, with human rights and equality developments as they progress within the EU in the future. We recognise, therefore, both preservation and development as key aspects of the matter. Our view is that the draft withdrawal agreement suggests substantial progress has been made but there are also significant gaps. I will start with the good news before speaking about where work still needs to be done.
The Ireland-Northern Ireland protocol contains a number of important provisions, which should not be underestimated. First, the UK Government has a commitment to ensuring no diminution of the rights contained within the rights, safeguards and equality of opportunity section of the 1998 agreement as a result of leaving the EU. I emphasise that I refer to one part of the agreement rather than the whole agreement, although ideally we would have liked to have seen a commitment to the whole agreement.
Second, a number of specific EU directives will continue to have effect in Northern Ireland covering equal treatment such as in accessing goods and services, employment, self-employment and social security alongside equal treatment between persons of racial or ethnic origin, which extends to other groups. Those commitments cover both existing protection and keeping pace with future EU protections, which gives Northern Ireland some additional protections to the rest of the UK.
Third, and importantly, the UK and Irish Governments will continue to be able to make arrangements for the common travel area, including offering more favourable treatment between the two countries than to other EU citizens in certain circumstances.
Fourth, existing North-South co-operation will be maintained in a number of areas, including justice and security, which is particularly important, and both Governments may continue to build on the provision of the Good Friday Agreement in other areas of North-South co-operation while respecting EU law.
Fifth, institutional arrangements will be put in place to oversee the protocol and, in turn, those arrangements can fit into the full oversight architecture within the withdrawal agreement, the importance of which Professor Harvey mentioned.
A number of outstanding issues, however, remain to be resolved. First, the scope and extent of the protections provided by the non-diminution commitment within the rights, safeguards and equality of opportunities section of the 1998 agreement needs to be determined. That section was not drafted with EU law in mind, as the assumption was that we would remain within the EU. It contains a number of specific commitments to rights but also embraces broader aims, such as social inclusion; the advancement of women in public life; respect, understanding and tolerance in relation to linguistic diversity; and victims’ rights to remember and contribute to a changed society. How these broad concepts will be translated and interpreted with reference to EU law remains to be seen. We take an expansive view but whether the courts will take the same view is a matter of conjecture. We have argued strongly that explicit reference, as a minimum, should be made to a number of other EU directives, for example, on parental leave, rights of pregnant workers and rights of victims. We argue that they should also be covered by the non-diminution commitment. Whether they will be remains to be confirmed but the equality commission and the joint committee have made strong representations in that regard.
Second, there is the UK Government’s decision to be no longer bound by the EU Charter of Fundamental Rights. The charter largely mirrors the rights contained in the European Convention on Human Rights but goes further by including a number of economic and social rights. As Mr. Gormally outlined, the 1998 agreement envisaged a bill of rights for Northern Ireland supplementing the rights contained in the convention to reflect the particular circumstances of Northern Ireland, drawing on international instruments and experience. In effect, a bill of rights was to provide a "convention-plus" approach to human rights protection. Although the charter post-dates the 1998 agreement and applies it only in conjunction with EU law, the charter remains the closest equivalent to a "convention-plus" approach contemplated in a bill of rights.
It has been argued that while the draft withdrawal agreement does not incorporate the charter into Northern Ireland law, other provisions within the withdrawal agreement mean that the charter would apply extensively. Moreover, the UK Government has argued that much of the charter will be retained in either common law or statute law. Nonetheless, the loss of the EU charter in its current form would lead to a loss of legal certainty and consistency, as legal cases would have to argue that the charter applies as well as how it applies. In addition, the charter is an accessible document and the wider understanding of rights would be hampered through the failure to incorporate it within the draft withdrawal agreement. The retention of the charter would also provide a degree of continuing equivalence of rights throughout the island of Ireland and, therefore, is in line with the spirit of the 1998 agreement. For all those reasons, the commission continues to hold that the charter should be retained for Northern Ireland at least until a bill of rights for Northern Ireland is introduced.
Third, while confirmation that the common travel area will continue is welcome, leaving the EU changes the legal dynamic underpinning the existing and future arrangements, particularly for freedom of movement. The formal legal underpinnings are relatively scant, as outlined in the work the joint committee commissioned, and rely on the provisions of EU law governing freedom of movement and other associated rights. Although I recognise there is no desire in the UK or Irish Governments to dilute common travel arrangements at this point, to safeguard against any future dilution we recommend that the two Governments should agree a common travel area treaty, covering common immigration rules, travel rights, residency rights and related rights to education, social security, work, health, security and justice. Moreover, access to some rights in a cross-Border setting remains determined by EU law rather than the common travel area, and childcare support within UK social security benefits is one example. The common travel area, therefore, is not the answer to all the ills of rights for cross-Border workers.
Fourth, is the extent of the commitment made in the 2017 report that people who are Irish citizens will continue to enjoy rights as EU citizens. What that means in practice remains unclear. Focusing solely on those who identify as Irish within Northern Ireland creates a potential towards unequal citizenship counter to the principles of the 1998 agreement unless those rights are extended to all the people of Northern Ireland, whether they identify themselves as British, British and Irish, or Irish. The commission's assessment, on the basis of what we have seen since the December 2017 report, is that the ambition of those initial intentions from within the EU 27 have been significantly tempered and we would like to see clarity as to what exactly the rights and entitlements will be for Irish citizens in Northern Ireland when the UK leaves the European Union.
Fifth, the long-term arrangements on the issues of justice, security and data sharing arrangements are very important and have yet to be agreed. That includes the continuation of the European arrest warrant, and the question of how oversight and redress is maintained given the UK Government's red line that it wishes to leave the Court of Justice of the European Union. We still do not know in detail what the bespoke alternative is. It is the fine detail that always counts on these issues.
On the sixth recommendation, EU law has provided significant rights and protections for people living in Northern Ireland. The withdrawal agreement cements some of those protections but by no means all of them. It seems to us that there is a real likelihood of Northern Ireland diverging from Ireland and other EU member states in EU-led rights protections. We have seen how Northern Ireland has fallen behind other parts of the UK in terms of the single Equality Act, equal marriage, rights to abortion, etc. Those are all issues that we could see in the future where Northern Ireland would be a back marker rather than a leader in the development of rights, without the important value of EU law to provide some underpinning protection.
Finally, there is the value of the dedicated mechanism alluded to by Professor Harvey. Its effectiveness will be determined by the statutory powers and the mandate given to the two commissions and the joint committee and the resources provided to the commissions. Alongside that, we have also argued very strongly that there must be individual rights of enforcement, with access to legal aid for those on low incomes. Separate individual rights enforcement has not been confirmed in the protocol, although we anticipate that will happen. We do not think that the commission should be the only place that people should be able to enforce their rights. People should have the choice to do that of their own volition as well as through the commissions.
There remains a great deal to be done, assuming the withdrawal agreement eventually comes into effect. We are committed to continuing to battle for those issues that we have identified.