With the consent of members, we will go into private session for a moment to go through the list of rotation of speakers and how we will call them.
EU-UK Withdrawal Agreement: Discussion
The joint committee went into private session at 1.44 p.m. and resumed in public session at 1.46 p.m.
I thank our guests for coming and apologise for the delay in starting. They are very welcome indeed. Our meeting today is an engagement with the Irish Human Rights and Equality Commission, IHREC, the Northern Ireland Human Rights Commission, NIHRC, and the Equality Commission for Northern Ireland, ECNI. We have received apologies from-----
(Interruptions).
We will go into private session to sort out some sound issues.
The joint committee went into private session at 1.46 p.m. and resumed in public session at 1.47 p.m.
On behalf of the committee, I welcome Ms Sinéad Gibney, chief commissioner, IHREC, Ms Alyson Kilpatrick, chief commissioner, NIHRC, and Ms Geraldine McGahey, chief commissioner, ECNI, to discuss their very important work on Article 2 of the EU-UK withdrawal agreement ensuring the protection of human rights and equality.
Before we begin, I must explain some standard procedure on the limitations as to parliamentary privilege and the practices of our Houses as regards references the witnesses may make to other people in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, witnesses and participants who give evidence from a location outside the parliamentary precincts are asked to note that they may not benefit from the same level of immunity from legal proceedings as a witness giving evidence from within the parliamentary precincts does and may consider it appropriate to take legal advice in this matter. Witnesses are also asked to note that only evidence connected with the subject matter should be given and they should respect directions given by the Chair on the parliamentary practice to the effect that where possible, they should neither criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the person or entity named. That is standard for everybody.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him, her or it identifiable. I remind members of the requirement that they must be present before they participate.
I call Ms Gibney to make her opening statement.
Ms Sinéad Gibney
I thank the Chairman and wish everyone a good afternoon. I am chief commissioner of IHREC, Ireland's independent national human rights institution and national equality body. I am joined by Ms Kilpatrick and Ms McGahey. When the three of us appear together, I feel like we hit the record for the number of times a person can say the word "commission" in five minutes.
The Belfast Good Friday Agreement is really and truly foundational to the rights and equality framework for the island of Ireland.
The agreement instigated the establishment of the two Northern Ireland commissions, and one of IHREC's legacy bodies, which is the former Irish Human Rights Commission.
The agreement also specified the establishment of a joint committee of the two human rights commissions. That joint committee serves as a forum to discuss and address rights and equality issues that affect the island of Ireland. It took on an additional fervour following the 2016 UK referendum decision as we carried out significant work to identify and address the human rights and equality implications of Brexit. This work saw us engage directly and frequently with parties in London, Brussels, Dublin and Belfast.
Joined now by our colleagues in the Equality Commission for Northern Ireland, our three institutions continue this work today in our efforts to oversee and report on the implications of Brexit for rights and equality for everybody on the island. As members will know, the EU-UK withdrawal agreement contains a protocol on Ireland and Northern Ireland, which aims to address the unique circumstances on this island in terms of Brexit.
In Article 2, the UK Government commits explicitly to ensuring that no diminution of certain rights, safeguards or equality of opportunity, as set out in the relevant chapter of the Good Friday Agreement, results from its withdrawal from the EU, including in the area of protection against discrimination as enshrined in EU law. Article 2 specifies that this commitment be implemented through dedicated mechanisms. It commits the UK Government to facilitating the work of the two Northern Ireland commissions, as well as the joint committee of IHREC and the NIHRC. Additional statutory powers have been conferred on the two commissions to act as such dedicated mechanisms.
Article 2 also sets all three commissions to work on providing oversight of, and to report on, rights and equality issues that have an island-of-Ireland dimension. To co-ordinate our efforts we have built a framework to govern our Article 2 work and established a joint working group to drive it. Last November, we also met as three full commissions to review and plan our work.
Building on this framework, the focus of the two dedicated mechanism units in the NIHRC and the ECNI is now on understanding and engaging with the very significant issues we are seeing following the UK’s departure from the EU. The rights and equality issues are multiple, as is evident in research by the commissions in areas such as human trafficking and divergence of rights on the island. My colleagues in the two commissions will say more to these concerns.
In addition to parliamentary engagement to raise awareness and understanding of Article 2 and our commissions’ roles therein, which has included regular appearances before the Northern Ireland Assembly Committee for the Executive Office, an appearance before the Seanad Special Select Committee on the Withdrawal of the United Kingdom from the EU last year and proactive engagement with North-South civil society. For example, we held a Rights After Brexit event with the Centre for Cross Border Studies in May 2021, and an event in Derry with a focus on minority ethnic groups, migrant people and Border communities in March of this year. These events have been invaluable opportunities for our organisations to connect with civil society, and to learn from the experience of rights holders who are most impacted by Brexit, particularly the communities on both sides of the Border whose day-to-day lives are hugely affected.
Finally, I want to mention our engagement on policy issues. The one I want to highlight here concerns the UK Nationality and Borders Act. As members will know, the Act provides a basis for the UK to introduce an electronic travel authorisation or ETA regime. ETAs would essentially require everyone wishing to travel to the UK, bar British and Irish citizens, to seek permission in advance of travel. This provision would affect a significant number of individuals who do not hold a recognised UK immigration status despite the current system allowing them free travel across the Border to shop, work, access services or visit family. This gives rise to serious equality and rights concerns, about which we jointly wrote to the Minister for Foreign Affairs, Deputy Coveney, specifically on how ETAs may affect the right to private and family life of people in Border communities; may undermine the protocol commitment to avoiding a hard border, and related checks and controls; and may create the potential for racial profiling to result from associated checks. The potential for racial profiling is particularly concerning given reports of selective passport checks happening on buses that cross the Ireland-Northern Ireland Border. We, in IHREC, have engaged about this matter with the Policing Authority and the Garda Commissioner's office. The Policing Authority has raised this matter in its meetings with the Garda Commissioner.
I have given a quick overview of our framework and a few examples of some of our joint activity, which we will detail in a full joint activity report that we will publish in the coming months. Ms Kilpatrick and Ms McGahey will go into more programmatic detail of the rights and equality issues that they are scoping and addressing.
As I hope members can see, we have a very positive working relationship. Our institutions share a collective commitment to protect and promote rights and equality for everyone on this island. Our joint work is more important now than ever given, for example, the new UK Prime Minister’s stated willingness to withdraw the UK from the European Convention on Human Rights, ECHR. The ECHR is an essential part of the Good Friday Agreement. We cannot allow the equality and human rights framework that underpins peace on this island to be a matter of interpretation when it is already set out in an international agreement. It was positive to see the Taoiseach’s early engagement with the new Prime Minister this week in London. Such engagement needs to be sustained and direct with the Prime Minister to ensure that human rights and equality see no diminution and indeed, see protections grow as the UK and Ireland’s continuing relationship post Brexit is forged.
I thank the chief commissioner.
Ms Alyson Kilpatrick
I thank the Chairman for the opportunity to address the committee on behalf of the Northern Ireland Human Rights Commission. I am very sorry that I am unable to join the meeting in person and I am sure I am missing out by not being there.
Ms Gibney has outlined the contours of Article 2 of the protocol very well and I will not repeat any of that. As members already know, the protocol was hard won and provides valuable protection against the extremes of Brexit. However, the protocol is neither comprehensive nor foolproof in how it defends humans rights. As our time is short, and I have many examples that we may get to later, I will restrict my opening remarks to outlining a few of the most pressing risks to the Good Friday Agreement human rights commitments but bearing in mind the interests of this committee. I must start by mentioning the Northern Ireland Protocol Bill. While we welcome the UK Government's stated commitment that the no-diminution provision in the protocol is "non-controversial", the Bill itself undermines the strengths and reliability of that commitment, which obviously gives us some grave concerns.
The Bill offers a degree of protection, whereby Ministers may not classify protocol Article 2 as an excluded provision. In other words, the Bill purports to prevent a departure from Article 2 but the actual provisions of the Bill go on to weaken that very protection in quite a considerable way. For example, the Bill states that UK courts will no longer be bound by decisions of the Court of Justice of the European Union. That is a difficulty when it is the UK Government's duty to keep pace with the six equality directives in Annex 1 to the protocol, so that is a directly contrary undertaking compared with the protocol commitment. The most immediate impact on the Good Friday Agreement is an undermining of the application and enforcement of rights. I am sure that I do not need to remind members that these rights are central to that agreement.
Next, and probably the most obvious, is the risk posed to the Bill of Rights legislation, which has been mentioned and I am sure that we will hear more about today. It is a repeal of the Human Rights Act and this is much more than technical amendments to "rebalance rights". The Bill changes, and I would say that it critically weakens, the substance, application and enforcement of rights. Consequently, rather than bringing rights home, as the Human Rights Act was meant to do and as we were told at the time, the Bill has sent many of them packing along with those who claim these rights. While I accept there has been a reprieve, depending on whom one reads, by the parking or shelving of this Bill, the UK Government has not resiled from the policy objectives reflected in the Bill so we cannot assume that it is not going to be reimposed. If the Bill is returned to, or a different approach is taken but with a similar intention, the commission is deeply concerned about the effect on fundamental rights in Northern Ireland.
Consequently, despite the shelving of the Bill, I will take a brief moment to share a few words on it now.
Perhaps I can reflect our concerns better by saying there will be real consequences to this Bill, whether in part or piecemeal, in that there will be a hierarchy of rights and rights holders - it is clear to me that is partly the intention of the Bill - which is the very thing human rights is meant to protect us all from. By way of deliberate provision, people will be made unequal. Human rights will no longer be universally applied. We have to remember the creation of a system in which rights are universally enjoyed was the signal purpose of the universal declaration and everything else that it follows. This is very significant. It is easy to over-quote "existential survival" but it really is that. Human rights value everybody equally, even if others do not. This Bill threatens that very value.
Added to that, this Bill, or policy intention, limits people's access to court to complain about the breaches, which in themselves are probably limited. That is another bedrock of democracy and human rights that will be severely limited. That needs to be remembered in the context of the general mood and direction of travel, which I am sure McGahey will also discuss this afternoon. If a victim eventually makes it to court, and that prospect is much more unlikely, with a complaint about a breach, that court will no longer have to follow European Court of Human Rights, ECHR, Strasbourg case law in the way it previously did. We, as the dedicated mechanism, considered very specifically whether that would result in an actionable breach of protocol Article 2. In those deliberations and in the advice we received, we did not identify a direct actionable breach on the face of the Bill, but we noted and have communicated our concern about the downgrading of Strasbourg case law and the likely consequences of that. In my view, that will lead to a diminishing in standards without more. That in itself is significant enough to be taken very seriously.
The standards are already at a minimum. They are not high. Members will recall that the Good Friday Agreement provided for a bill of rights for Northern Ireland. That was to be ECHR plus, where the circumstances of Northern Ireland required it. Instead, this Bill indicates not only that a Northern Ireland Bill of rights is unlikely but it removes the closest thing anyone has to an actual Bill of rights, which is the Human Rights Act. Protocol Article 2 provides a degree of certainty and stability at a difficult time in Northern Ireland and must be retained. It is, however, insufficient alone. It is simply no substitute for the Human Rights Act and certainly not an alternative to the bill of rights for Northern Ireland.
I am speeding through and will speed up even more. I will mention the Nationality and Borders Act. The three commissions have flagged many concerns about it. I will restate our very grave concerns regarding the impact on the protection of trafficked persons. It is our joint assessment that the trafficking directive is within the scope of protocol Article 2, which means the no diminution commitment in the protocol should apply. We have identified several ways in which the Nationality and Borders Act may breach minimum standards laid out in that directive and therefore potentially breach protocol Article 2. I cannot tell members what we will do about it but we are carefully considering what our next steps will be. Ms Gibney mentioned the three commissions' concern about provision for electronic traveller authorisations in the Act. We reiterate that. We are very concerned about the impact on the enjoyment of rights to family and private life, especially, but not only, those in Border communities. We will keep a very close watching brief on this.
That brings me to my last, though it is still only an initial, concern, namely, the Northern Ireland Troubles (Legacy and Reconciliation) Bill. I am sure the committee is aware of our grave concerns about this Bill from a human rights perspective. There are a number of potential breaches that are very obvious. In short, what is intended by the Bill will not comply with Articles 2 and 3 of the European convention, which are the fundamental rights to life and freedom from torture or ill-treatment. The reason this is so serious and relevant to everything else we will discuss is that it prevents by design independent and effective investigations of grave human rights abuses, including murder, torture and kidnap. It does precisely the opposite to what the European convention requires. It closes down effective, independent investigations. That should not be a political consideration; it is purely a legal one. The job we have as a human rights commission, certainly as the Northern Ireland Human Rights Commission, is to assess the compliance of this Bill with human rights standards. We have done that and we have attempted to assist, but we have concluded that it fails to comply to such an extent that we cannot offer recommendations to make it compliant. What may be of interest to the committee today although I cannot say a great deal more, technically, about it, is that in addition to the convention breaches we are also concerned the Bill may diminish the rights of victims in direct breach of the UK's obligations under protocol Article 2 because it fails to comply with standards set out in the EU victims directive, which we conclude and have advised comes within the scope of Article 2.
I echo what Ms Gibney said, and what I hope Ms McGahey will say, in that we are working closely together. We have made great progress in our work, on the dedicated mechanism in particular, through engagement, research and publications. I am enormously grateful to my fellow commissioners. I am the youngest of them by a little way. I do not mean in calendar age but in terms of service. I have been assisted greatly by both of them and their staff. I wanted to recognise that in this evidence session, in addition to my fellow commissioners in Northern Ireland, and the teams who have prepared all three of us and put so much into managing what at the start, certainly for me, seemed too vast and difficult a task. Somehow, we have pulled this together. We now know where we are with it and we look forward to being able to actually deliver some results. I look forward to members' questions. I will hand over to Ms McGahey.
Ms Geraldine McGahey
I also thank the committee for the opportunity to brief it on the work we are doing, particularly regarding our joint oversight work on protocol Article 2. I will highlight a key piece of work the three commissions have been working on collaboratively over the past year. It relates to our work on tracking and monitoring the divergence of equality and human rights on the island of Ireland post Brexit. This is a significant issue that is not only of importance to the commissions but is of interest and relevance, I am sure, to the work of this committee.
The commissions consider that, in the long term, North-South equivalence of rights is important. Protocol Article 2 requires Northern Ireland to keep pace with any changes to the six equality directives in annex 1 of the protocol that strengthen protections. However, there is real potential for equality and human rights on the island of Ireland to diverge post Brexit. We will shortly publish this research. Emerging findings reveal areas of EU law where divergences in equality and human rights protections between Ireland and Northern Ireland are likely, including in the areas of work-life balance, age discrimination in access to goods, facilities and services, and pay transparency reporting. The report will also highlight a range of recent Court of Justice of the European Union, CJEU, decisions that continue to have implications for rights and protections under Northern Ireland equality and human rights law. Once the research is published, we will issue recommendations to address any potential divergence of rights. We will be very happy to brief the committee further on this, should it be of interest and assistance.
I will also highlight our first annual report on protocol Article 2, which we published in July 2022. There was a link to it in the documents submitted in advance and a couple of hard copies are available, if members want to have a look at it. This report, jointly produced by the ECNI and NIHRC, sets out our key policy recommendations for the UK Government and the Northern Ireland Executive, with respect to the implementation of protocol Article 2 and issues arising as a result of Brexit more generally. It sets out our concerns across a range of areas, including Bills that were progressing through the UK Parliament, for example, the Elections Bill, which removed the voting rights of certain EU citizens in Northern Ireland and has since become law.
A number of policy recommendations in our annual report were informed by the research we completed. For example, ECNI commissioned expert research on ensuring effective legislative scrutiny for protocol Article 2. Building on that research we have made recommendations to Government on steps it can take to embed compliance with protocol Article 2 at the earliest stages of policy and legislative developments.
These include recommending that the explanatory memoranda on draft UK and NI legislative proposals set out how conformity with Article 2 of the protocol has been considered.
Further, the Equality Commission for Northern Ireland and our colleagues in the Northern Ireland Human Rights Commission have proactively been undertaking joint work to clarify the scope of protocol Article 2. We have prepared a joint working paper which sets out what we consider to be the scope of the Article 2 commitment, while we also recognise that this will ultimately be subject to judicial determination.
We also have been mapping out EU laws and obligations that we consider fall within scope of protocol Article 2. We hope to publish this work in the autumn. We consider this work to be particularly important in the context of the planned UK review of retained EU law. Our work will help make clear the extent of EU derived rights in Northern Ireland that we consider the UK Government cannot roll back on. During the past year, both the ECNI and Ms Kilpatrick's colleagues have been tracking and monitoring draft UK and NI legislation to ensure that it is compliant with the UK Government’s commitments under Article 2. We have also been engaging proactively with relevant parliamentary committees as part of that scrutiny role. In addition to parliamentary committees, we have been jointly engaging with our equality and human rights stakeholders and commissioning research to better understand the impact of Brexit on equality groups, including minority ethnic and migrant people in NI.
One issue which is of great concern to us is the loss of EU funding. We have already published research and policy recommendations which highlighted the impact of the loss of EU funding on equality groups in Northern Ireland. Our recommendations included the designation for the purposes of section 75 of the Northern Ireland Act of the Department for Levelling Up, Housing and Communities. Although this research primarily focused on the loss of European Social Fund funding, we recommended that the Northern Ireland Executive provides bridging arrangements to ensure there is no gap in funding between the end of the PEACE IV programme and the commencement of the PEACE PLUS programme.
The Northern Ireland Human Rights Commission has also recently published research on Brexit, health and its potential impact on Article 2 of the protocol, as well as human trafficking and Article 2. One important aspect of our work is what we have done in raising awareness of Article 2, including with the public via media campaigns and through the publication of our short guide. I believe there is a hyperlink to that in the papers we have furnished to members. Of interest to the committee will be the results of a recent independent public awareness survey we conducted which showed high levels of public support in NI for the UK Government’s commitment in respect of Article 2 of the protocol, with nearly three quarters of respondents indicating that this commitment was important to them. Of interest in that is that many respondents, 42%, felt that their equality and human rights had already been reduced due to Brexit.
In conclusion, I reaffirm, as the others have said, that the three commissions have been working well together and in close partnership. We have been tasked with a challenging and critical role, particularly at this time of concern about wider risks to human rights and equality protections in Northern Ireland. Working together, we will build on the considerable achievements to date and on the work already progressed. We have a great deal more in our pipeline and on our work programmes and we look forward to keeping the committee briefed. I thank the Chairman.
I thank Ms Gibney, Ms Kilpatrick and Ms McGahey for their considered opening statements. We now open the committee's proceedings to our membership, some of whom are online and may be visible on screen. We allocate time to each political grouping and rotate that order so that there is no bias in our rotation of speakers. The next order of preference since our previous meeting runs as follows: Sinn Féin, Fianna Fáil, Fine Gael, the SDLP, the Alliance Party, the Green Party, Sinn Féin, the Labour Party, Independent Members and Aontú. Starting with Sinn Féin, whichever member that party wish to nominate can begin their contribution and the allocated speaking time is 15 minutes. Contributors should feel free to answer as they wish to keep the proceedings as informal as we can.
My colleague, Deputy Tully, and I will share this slot and Mickey Brady MP, will come in after that. I thank our witnesses very much for their submissions and for taking the time to be appear before our committee, and I welcome Ms Kilpatrick.
We have scrutinised what has been happening and this is timely, urgent and worrying in many aspects, a concern we all share. These issues have also been outlined in the submissions. There are common denominators across all of the witnesses we have spoken to around what is happening at the moment in respect of the erosion of basic human rights, the impact of Brexit and the legislation that is being tried to put through, whether that is the protocol legislation or the legacy legislation.
I was looking back at the report produced by the joint committee of the commissions of 2011 and my first question pertains to how the Good Friday Agreement and the Joint Declaration set out to establish a charter of rights for the island of Ireland. The joint committee of the commissions examined that in its report of 2011 and it outlined some very constructive next steps to be taken to finalise the context of a charter of rights for the island of Ireland. My first question is to ask where that is at, at that moment, and what roles do the Irish Government and British Government still have to play in that regard.
Ms Sinéad Gibney
I thank Deputy Conway-Walsh very much for that question. I will answer as much as I can and Ms Kilpatrick might jump in if she has anything further to add to this question.
As Ms Kilpatrick has said, she is the youngest of all three of us, in that we have all have started in the past two to two and half years. Obviously, that is historically just before our term of office. As the Deputy has said, the charter of rights was set out in the Good Friday Agreement as something that the joint committee would pursue and at the time there have been what I would describe as a couple of bursts of activity towards that. Although that was set out as something that could be pursued in the 2011 report, the focus since then, and between 2016 and 2020, has been very much around the implications of Brexit. This charter of rights proposal has not progressed in any meaningful way is my direct answer to the Deputy on that. There is a point in time in which this could always be reviewed and looked at again. I must say that the priority is and should right now be the dedicated mechanisms and the work of those units. This is certainly something that we can explore. I might suggest to the Deputy that the team might follow up with her to document exactly where that work that has happened, and more than that, within the intervening 11 years since the issuing of that report. As I say, this proposal has not advanced in any meaningful way. Would Ms Kilpatrick wish to add anything to that?
Ms Alyson Kilpatrick
I would simply say that the commission’s position, as far as I am aware, has not changed since then. This report is still there and it is for others now to accept or reject it. I do not believe it has either been accepted or rejected but it has just been parked, to use that word again. It is up to others now.
Ms Geraldine McGahey
If I may add to that, the Equality Commission for Northern Ireland was not a party to that report but Northern Ireland has been going through a process of trying to do some work at Assembly level in respect of a bill of rights for Northern Ireland and, unfortunately, that work is parked. We have all given evidence to that ad hoc committee and we are very much of the view that rights should not be diminished but should be strengthened and that there is a role for a bill of rights in Northern Ireland.
I thank our guest speakers for those contributions. I would greatly appreciate, with the indulgence of the Chair, if our guests might give the committee a synopsis of that, where things are at, and any suggestions that they might have, particularly in respect of submissions that we could make to the Irish Government and the part that it needs to play to move that on. We are finding many of the challenges and problems we are facing now would be null and void, had all of the agreements been fully implemented. We are the Committee on the Implementation of the Good Friday Agreement and have a responsibility to ensure that all of the agreement is implemented. Such a synopsis would be very useful and would be greatly appreciated.
The legacy Bill is obviously of great concern to us and needs to be withdrawn for many of the reasons outlined in Ms Kilpatrick’s submission. Does she consider that if the legacy Bill is to go ahead, the Irish Government will have any choice but to take an interstate case to Europe against the British Government because there is so much which is wrong and detrimental about this Bill?
Could the witnesses comment on that?
Ms Sinéad Gibney
I do not have an immediate comment on that. I will ask Ms Kilpatrick to talk about the legacy Bill because of the three of us, she is the prominent expert in this area. I am chair of a 15-member commission. The commission does not have an exact position on what an Irish Government response could and should be in the event that such a Bill was progressed. I will be happy to follow up with the Deputy on anything else.
Ms Alyson Kilpatrick
How the Deputy concluded her question is probably the most relevant point. If everything had been implemented, this probably would not have any potential to pass through. She asked about the charter of rights for the island of Ireland. That, of course, is different from the bill of rights for Northern Ireland. We would say the bill of rights is still an unfulfilled commitment in Northern Ireland and has its own very specific place and purpose. That was agreed by the special committee set up to look at it but it just could not be agreed in its content.
The legacy Bill is troubling in all its parts. The temptation to try to fix it bit by bit to make it approach something that is acceptable in human rights terms is very tempting but is simply not possible. I am not being asked as a politician and a representative of any group or society generally. I am being asked as chief commissioner of the NIHRC whether this is compatible with human rights standards as they exist at the moment. My very clear and strong advice and that of my colleagues in Northern Ireland is that it is not and, therefore, it is not really for us to say it could be made compliant because we do not see simple fixes to this. By starting to offer amendments, we get into the territory of making it even more messy. It is so fundamentally different from the state's obligation under the European convention that I cannot really take it any further.
The Deputy asked specifically about an interstate case. That is not really for me to comment on or try to influence. Clearly, that is a possibility that is available. It may be the most obvious course. I certainly agree with her in that I do not think the Bill is compatible and, therefore, other people must decide what they do about that. The commission can also take its own motion cases but for a number of reasons, with which I will not trouble the committee now, that is probably not as effective and certainly not as speedy a response. An interstate case would be much faster. Others have written about this with far more conviction than I am able to give the committee today.
Ms Kilpatrick will not have time to answer this in my slot but she might be able to do so in the others. Does she share Amnesty International's observation that it sets a dangerous precedent internationally, including by signalling to other states that they too can ignore human rights obligations?
Ms Alyson Kilpatrick
It certainly does not make us look good compared to all our colleagues inside and outside the EU, particularly when the revisions are being made by one of the actors in the conflict to which this Bill is supposed to apply. There are very serious signals being sent by that.
I thank the witnesses for presenting. I will focus on the UK Nationality and Borders Act and travel authorisation. This could have a negative effect on communities living along the Border in particular but also anyone crossing the Border bar Irish and British citizens. I live in County Cavan so someone from Poland or Lithuania who is living there could need permission just to go to County Fermanagh to visit a family member. It will affect people who work on one side of the Border and live on the other, people going shopping and tourism. It is simply ludicrous and could effectively create a hard border on the island of Ireland. Ms Gibney pointed to the potential for racial profiling on buses crossing the Border, which is particularly concerning. Does she have figures or research on the prevalence of these checks and how they have been selective along racial lines? If so, could she share them with the committee? I know she talked to the PSNI and An Garda Síochána. Could she share how frequent this practice is?
Ms Sinéad Gibney
IHRC did not engage with the PSNI. I do not know if the other two commissions have. We engaged with the Policing Authority and the Garda Commissioner, Drew Harris and raised these concerns. Other witnesses appearing before the committee also spoke about this issue. The Commission on the Administration of Justice did so in February 2022. As yet, that is the evidence we have. It is anecdotal through our civil society representatives such as the commission and the ICCL. The reports we are getting are through them so we do not have any data or evidence. We first engaged with the Policing Authority given that it is the body that holds An Garda Síochána to account and it did so in public meetings. We then followed up with the Garda Commissioner to get more detail on it. According to the letter we received in response, where a vehicle is stopped for the purpose of an immigration check, all passengers are checked for identification sufficient to establish their identity and nationality. The letter stated that in cases where a passenger is identified to be Irish, UK or other EU national, no further action is taken. That is the set policy we have received from An Garda Síochána. This speaks to our broader concerns around the potential for racial profiling from our police service and the lack of disaggregated data gathered by An Garda Síochána, which would allow us to identify that this does not exist. In today's world where we know racial profiling is a symptom of well-meaning police services and police forces across the globe, we should start from the point that there is potential for racial profiling and gather evidence to disprove it. This is only one of the areas in which this is an issue where we engage with An Garda Síochána on the potential for racial profiling. I would add that most of the population has huge respect for our police service, which offers us a great service, particularly through these Covid years, but my direct engagement particularly with ethnic minority groups is that this is not shared with everybody. Some communities feel over-policed and some communities feel they are subject to racial profiling so we need to see better engagement on this and that is my concern.
Regarding the comments about the ETA and the potential for what feels to many like a hard border in everything but name, that is certainly what we heard when we had direct engagement with those Border communities. It was a real eye-opener hearing directly from an excellent speaker from one of the women's networks who talked about how when you are on a border, you already feel pushed towards the margins and anything that really hardens that is going to be hugely impactful on those communities. The Deputy gave us an example there, which is exactly the type of example about which we are concerned, where somebody who at the moment has daily access across the Border will have that access brought into question if every time he or she wishes to cross, he or she would have to fill in an application form to do so. A total of 30,000 journeys are made across the Border every day. It involves things like services, employment, education and simply family visits. At the moment, we have a situation we all enjoy, which means that those communities are not affected by the Border, and we want to ensure as per the commitment in the protocol that this be maintained. I will see if anyone else wants to jump in.
Ms Geraldine McGahey
We at the ECNI have in the past assisted some cases where there were allegations of racial profiling and discrimination and successfully took cases against the Home Office. It was not as part of the land border but it was at Belfast City Airport and Stena. We do not have any evidence of racial profiling at the Border other than anecdotal evidence but we are concerned about it and have raised the issue with the Home Office. We raised that in the context not just of Article 2 and the electronic travel authorisation but also in terms of the common travel area and the guidance that has been issued. We have received correspondence from the Home Office that as it currently sees it, there is no immigration control on the Border. That is the position it holds but it is something we are continuing to keep under observation, particularly as the regulations relating to the Nationality and Borders Act are being developed. We are very conscious of the concerns of Border communities, particularly ethnic minorities, about that. I think Ms Kilpatrick is our key expert on that.
I welcome the witnesses and thank them for their initial contributions. It is obvious that a great deal of work is being undertaken by the three commissions. Importantly, it was stated that there is a framework for co-operation. It has often been a concern for us when there are different commissions whose work may run in parallel that there might be duplication and a lesser return overall as a result. I am glad to see there is a good framework of co-operation and collaboration because that is how the best results can be achieved for the people who need these services and supports. In this context, it is also important that there is an all-Ireland dimension to the work of the three commissions. I say that because these issues do not stop at the Border.
The Good Friday Agreement was a huge achievement and so many people contributed to bringing it about. It was about parity of esteem and ensuring people were treated equally regardless of their religious or political beliefs. It is disappointing, to say the least, that we are now back at a stage where we are concerned about the diminution of rights. It is not acceptable. It is disappointing we have come to this day with different legislative measures being proposed by the British Government.
On the Northern Ireland Troubles (Legacy and Reconciliation) Bill, we have discussed our outright opposition to those proposals on many occasions with different groups. It is not every day of the week that all the political parties in Northern Ireland, all the victims' groups and all the advocates for people are speaking in unison on an issue in this way, as are the political voices in this State too. It is deplorable that the British Government has brought forward these proposals that allow people to give themselves immunity from prosecution. People who committed murder can enter into the process being proposed through this legislation and practically give themselves immunity. That is not acceptable in any democracy. I heard representatives from other groups speak about General Pinochet's regime, and others. Talk about tinpot regimes. We would be talking about the deplorable activities of regimes elsewhere if something like this happened in South America. We do not expect that type of activity on a neighbouring island, in Europe or in what we generally refer to as the western world. I sincerely hope the new British Government will take a different approach.
All of us as public representatives, and the witnesses will know this through their work, have dealt with families who have been campaigning for decades to try to get to the truth of what happened to their loved ones and family members. We cannot emphasise often enough that those people have campaigned with great grace and dignity. They are not out for vengeance but just to get the truth. To tell those families, individuals, neighbours, friends and communities that have campaigned to try to get to the truth about what happened to loved ones or community members that all that work has been in vain and can just be washed away with legislation is not good enough and is unacceptable. It cannot be accepted in any form, and I sincerely hope the new British Prime Minister and new Secretary of State for Northern Ireland will revisit this issue in a practical way.
As we all know, a process was put in place in 2014 to deal with legacy issues. It was a hard-won agreement to secure the creation of those structures and this is what should be implemented. Those necessary mechanisms should be properly resourced so people can get to the truth of what happened. We have all met people in this situation. For decades now, I have worked alongside families who have lost loved ones and who have never got the truth. To try to tell those people that all their work has been in vain and all they have done has been pointless would be a deplorable act in any democratic system.
I applaud the work of the witnesses. All three commissioners mentioned other work in progress. They should keep us informed when there are findings regarding those issues because they will be important for our work as well. We have the WAVE Trauma Centre in Belfast, Derry and elsewhere and other good advocacy groups. We must commend their outstanding work and the support they give to families and victims while working in what must be exceptionally difficult circumstances. We must applaud their work and support them in every way possible.
On the British Nationality and Borders Act 2022, Deputies Tully and Conway-Walsh asked whether information is available on the numbers of people who have been stopped. Do we have any concrete evidence in this regard? Apart from people being checked, there is also the environment now in which some people are uncertain and afraid they might be stopped. Ms Gibney referred to there being 30,000 cross-Border movements daily. That is great to see. These are people crossing over the Border to go to work, attend education, access health services, visit family and go about social activities. Any of us who visits a school, hospital or building site will be able to see the registration of the cars parked in these places of work. If that is in Northern Ireland, we will see Southern-registered cars, while here in this State we will see Northern-registered cars. This demonstrates that people are travelling and providing worthwhile services. I am thinking of people in my neighbouring area of County Fermanagh who work in Cavan daily, and vice versa. For people without British or Irish citizenship, however, there is a concern at the back of their minds about whether they will be stopped. I take the opportunity to commend the work of the North West Migrants Forum, NWMF. I met representatives of the group some time ago. It is a great group, which advocates on behalf of people who feel vulnerable. We must bear in mind their concerns at all times.
I think it was Ms McGahey who referred to the loss of EU funding and how that can impact on the work of the three commissions. I presume IHREC is funded directly by the Government. If there is no direct State funding for the other two commissions, are they dependent on EU or other programmes, for funding? I would have thought the work of the three commissions should be funded directly by the relevant line Department in each State, instead of having to depend on EU programmes that do not last for more than five years.
Ms Geraldine McGahey
Taking the last point regarding funding first, our concern regarding the loss of EU funding relates to the impact it is going to have on the provision of services to the voluntary and community sector and those who are disabled. Much of section 75 is concerned with equality grounds. Our commission in the North is funded by the administration there. Our sponsoring unit is the Executive Office in the Northern Ireland Assembly, while that of Ms Kilpatrick's is the Northern Ireland Office. Funding is a serious issue for all of us. Ms Kilpatrick might have some comments on the funding of the Northern Ireland Human Rights Commission, but I was not referring to our organisation being funded with moneys from Europe.
Ms Sinéad Gibney
To clarify our funding situation, we have our own allocated Vote. This means IHREC is accountable to the Houses of the Oireachtas. All three of our organisations are also governed by the UN Paris principles for national institutions for the promotion and protection of human rights, which assert that it is up to institutions to effectively hold the State to account on human rights and equality issues. We must be independent and we must be effectively resourced. This is an important element and a characteristic of our organisation is that we have the independence of our own funding Vote and control over our own budget. We received a budget increase last year and we will be seeking continued budget increases in coming years, in line with the fact that our mandate is increasingly complex and we are taking on new responsibilities as an organisation. I just wished to convey the clear picture in this regard.
I welcome Deputy Brendan Smith's comments. Coming back to the ETA scheme and the racial profiling issue in this regard, I think he is correct about the chilling effect. The worry people have now regarding the potential for being checked is a concerning issue. As all three of us told the committee, we hear anecdotally about this happening. If anyone thinks they may have a case or anything in this vein, I ask them to approach our organisations to help us to understand that experience. If, for example, the Deputy's constituents have any negative experiences, we will do our best to work on their behalf. Perhaps my colleagues might like to comment further.
Ms Alyson Kilpatrick
I will return briefly to the issue of the ETAs.
In the North, of course, it is will be UK Border Force primarily that will be asking people for their documentation and they would say they are appalled at the very notion that their officers would profile on a racial basis. It is almost something of a red herring because it does not matter if the UK Border Force is appalled at the notion of racial profiling. What happens with these provisions is that people are immediately fearful that it will be racial profiling. That includes people who are entitled to cross the Border without documentation and those who are not. That includes Irish and British people as well. Some are telling us they are carrying - I am not sure if that noise is coming from here or not - passports just in case. Therefore, the damage is done if one introduces the fear of additional checks even if those checks are not as common as one fears.
In terms of research on numbers, we should confess that will be difficult. I am not sure any of us can provide the committee with those numbers. The people who probably could would be the Northern Ireland Policing Board and the Policing Authority in Dublin. They can ask for that information to be collected, disaggregated and then published. We would be saying that it should be.
In terms of funding, I need to be careful here because I would take up the rest of the committee's day if I started talking about our particular funding but I have written quite a bit about it and written a load of begging letters. The level of funding that is being made available to the Northern Ireland Human Rights Commission is undermining both its independence and sending out the signal that human rights are simply not important anymore and certainly not worth investing in.
The extent of cuts to our budget are such that I had to write to the accreditation committee of the United Nations and say that we are not doing all those jobs that it requires of us as a national human rights institution. They have deferred our accreditation and I have to appear in front of them again in October. I am not looking forward to it because I know I will not be able to tell them very much has improved. We asked for an independent review and that is being undertaken. We have to wait and see. That was something we asked for having run out of options.
That is what I would say about funding. We get funds directly from the Northern Ireland Office, the sponsor Department - from the Secretary of State - and Government but the level of money impacts directly on our ability to do our work.
Finally, if anything needs to change in relation to funding of organisations such as all three of ours it is that those appointed to give expert advice and to carry out a statutory function to advise on human rights should be taken seriously when they say what they need to do that properly. If we say we do not have enough money to do our job and, therefore, we are not fit for purpose and we are not advising as we should, that needs to be listened to because if it is not, we simply are not independent anymore. We need to be honest about that.
That is very clear.
There is a long border in my constituency, Cavan-Monaghan, but I have not been getting complaints from people being stopped. I refer to the atmosphere and the fear people feel. Ms Kilpatrick stated people are starting to carry passports. When I go from one part of my constituency to the other I would need to carry a passport because I go through Fermanagh.
That is for Deputy Smith's own party.
I had not thought of that. Ms Kilpatrick is creating more fear now. I thank the witnesses for their contributions.
I am sorry for being late but I am trying to play catch-up. Certainly, the presentations, from what I heard, are comprehensive.
It is ironic that a government that is saying that it wants to protect the Good Friday Agreement, at present in relation to the Northern Ireland Protocol Bill whose purpose that is, is dismantling a core foundation stone of that Agreement. The impact of the indifference of that is difficult on many levels.
Seeing it in black and white about Article 2 - that the UK Government commits explicitly to ensuring that there is no lessening of certain rights, safeguards or equality of opportunity as set out in the relevant chapter of the Good Friday Agreement - by doing this, by withdrawing the UK from the European Convention on Human Rights, are they themselves not doing that? It is a practical question. Are they not breaking their own rules by doing that?
Ms Alyson Kilpatrick
They are not withdrawing from the European convention yet there is some threat that they may consider it. What they are doing with this Bill is removing the enforceability directly in courts Northern Ireland. What is happening is one will have the rights stacked up somewhere but it will be very difficult to enforce them.
In the Good Friday Agreement, the commitment was to incorporate the Convention and access to courts in Northern Ireland so that one would have the rights but also one would be able to take them along to one's local county court and insist on compliance with one's rights. That is what is being undermined.
What also is being undermined is the identity of the rights holders. Some people do not qualify for rights anymore under this new provision and one must prove that one deserves one's rights. That is expressly what this policy intention is.
The Senator is correct. This is essentially undermining the Good Friday Agreement and arguments based on the Good Friday Agreement and why this protocol Bill is necessary are undermining the Good Friday Agreement's central purpose when it comes to rights.
How does that impact how these agencies work together in that framework? Does that impact where the Irish Human Rights and Equality Commission is versus the Northern Ireland Human Rights Commission? How are these agencies supposed to work together if, fundamentally, they perhaps have different standards?
Ms Sinéad Gibney
Maybe I will pull it back a little to remind everyone why the equivalence of rights is so important. The importance of it is that peace on this island is supported and bolstered by the fact that we have this equivalence of rights. That is why it was enshrined in the Good Friday Agreement. The idea is that it should be a similar experience for everybody living on the island, in terms of how they can realise their rights and what they can expect to enjoy in terms of non-discrimination and equality. It has been a really positive force over the past 20 odd years in driving, particularly on this side of the Border, our equality and rights standards up to a really positive level, and we are at a relatively equivalent level.
As commissions, we all operate in the jurisdiction we are in. We engage, obviously, as the three commissions here, but also with other equivalent commissions and jurisdictions across Europe and across the world. We have no problem in understanding that there might be different laws in place, different Acts, etc., that inform those rights and equality issues within the jurisdiction we are in. Then there are some that govern across regions, as we have thus far enjoyed within the EU. None of us expected, obviously, that the UK would ultimately withdraw from the EU and much of those frameworks were built on the assumption of that continued UK membership.
We will continue to work together as we always have. The joint committee did an excellent job in the four years from the 2016 referendum right up to actual withdrawal. During that time we published a series of six different publications which I urge the Senator to read because they go back to those fundamental elements around justice arrangements, citizenship, and the common travel area which is really problematic, shaky as it is and something that we have all said should be enshrined in legislation.
We have always worked together in those contexts and that we are in different jurisdictions does not stop us collaborating. Obviously, there is a very special arrangement in terms of the joint committee because we are established in a treaty, as the Northern Ireland Human Rights Commission, NIHRC, and Irish Human Rights and Equality Commission, IHREC, as being members of that but also within the equality commission and the dedicated mechanism framework. We use those frameworks that are available to us to work together.
In our appearances in front of the executive committee of the Northern Ireland Assembly, there were some voices saying the UK will perhaps advance rights to appoint further. I welcome that. If that is the case, it is great, but our biggest concern is that equivalence is maintained and that we see that balance. We will support our colleagues from both commissions in Northern Ireland in making sure that, specifically, the six directives committed to will continue to be respected. We all have to monitor that, and we will do whatever we can to help with that monitoring. Also, more broadly, we must ensure that rights and equality standards, even though they might be set through different legislative measures, maintain parity, because that is crucial for peace on this island.
To give us a sense of the equivalence at a practical level, what are the six directives?
Ms Geraldine McGahey
The racial equality directive, the employment equality framework directive, the gendered goods and services directive, the gender equality employment directive, the self-employment equality directive, and the gender equality and social security directive are the six.
When I referred to the work we are doing on the scope of Article 2, I was alluding to the fact that these are the very things we are examining. Each of the directives, while Northern Ireland is required to keep pace with developments in the EU, results in a much wider underpinning in terms of the legislative framework within which we operate within Northern Ireland and the rest of the UK. This is why we are saying the scope of Article 2 is very far-reaching, perhaps much further reaching than government is prepared to accept or acknowledge at this stage.
Ultimately, the scope of Article 2 will be determined through the courts. The paper we are publishing in the autumn was developed based on very comprehensive research and stakeholder engagement. We are more than happy to come back to the committee to talk to the members about that and the recommendations emerging from it.
Let me go back to a point made on the three commissions working together. The work between the Northern Ireland Human Rights Commission and Ms Gibney's organisation is underpinned by statute. The Northern Ireland Act gives a statutory basis to the associated joint committee. The amendments to the Northern Ireland Act following the introduction of the withdrawal agreement formed the dedicated mechanism whereby the three commissions now work together on a statutory basis to consider the all-island dimension. Therefore, there is a statutory basis behind the work we do. This is part of the reason we believe it is really important that Article 2 be taken into account whenever the likes of a review of the Human Rights Act is being undertaken. The Good Friday Agreement set out and enshrined a number of rights. The problem is that it did not give a definition in a legalistic way, and it is open to interpretation. When you start looking back and peeling off the layers of the onion, you find you can make an argument that Article 2 underpins this.
Ms Alyson Kilpatrick
I did not want to miss the opportunity to make two brief comments. It is really important in the context of this discussion to remember that the Joint Committee on Human Rights is a very different base from the dedicated mechanism in which the three commissions work together. The joint committee goes way beyond the dedicated mechanism in the protocol. Bearing in mind that we were talking about legacy earlier, that might be a good example to use. Potentially, if the legacy Bill is successful, a person in Northern Ireland – say, a relative of somebody murdered in Northern Ireland – will not have a right to take a judicial review or make a civil claim in the courts in Northern Ireland. However, somebody whose loved one was murdered in Dundalk will have the right.
I do not need to tell any of the members about the cross-Border nature of some of the violence and the different identities of different actors moving back and forth across the island. You admittedly have a very different framework of rights in substance. Even if we were all signatories to the convention enforcing those rights, enforcing them in Dundalk would be very different from enforcing them anywhere in Northern Ireland. That is a real worry for the Northern Ireland Human Rights Commission. Given that the stated intention of the Bill is to make sure that, for example, veterans are not inconvenienced by the state's Article 2 obligations, it suggests to me that the rights will be diminished this side rather than the other. I do not know what to do about it, but it must be recognised how serious that is.
Absolutely. I agree that the legacy Bill is incompatible or unfixable. Would Ms Kilpatrick use language to the effect that it is entirely unfixable and should not be progressed?
Ms Alyson Kilpatrick
I danced on the head of a pin initially when I was talking about this and said it was almost certainly fatally flawed. I was allowing room for doubt. I have to be careful because most of my colleagues at the commission would say there is still room for doubt. Some may believe there is work to be done on the Bill. I have more difficulty seeing what can be done with the Bill. If I, as chief commissioner, were asked, I would say it is fatally flawed and cannot be fixed. If I were asked whether the commission as a whole was prepared to put some time and work into discovering whether I am wrong, I would say "Yes". If I am wrong, I will be first to put up my hands, and I will be delighted to say I have been wrong and that it can be fixed. At the minute, however, my strong advice to anybody who asks is that it really cannot be fixed.
How concerned is Ms Kilpatrick about the lack of independence in respect of the powers of the Secretary of State and British Government in making decisions? That is one of the offences. How concerned is Ms Kilpatrick about power at that level?
Ms Alyson Kilpatrick
I will not go through all the elements now, but one of the essential elements of Article 2 compliance in independent, effective investigations is the independence of the investigators in respect of those not only who may be suspected but also those who may be implicated in any way, including in the training or oversight of those who may be perpetrators. This Bill is even worse than what I describe. The individual may be very independently minded but will not be independent of the state. Given how the Bill is set up, it necessarily requires the Secretary of State to be involved in making most of the really critical decisions. Most people are not even going to get near the independent mechanism. This is one of the really difficult issues with this Bill. Most people will be cut off before they even get near the Independent Commission for Reconciliation and Information Recovery. Even where there is a very independent person sitting in an investigative capacity, most people will not get anywhere near him or her. The Secretary of State will essentially decide those who will and will not get to do so. Even if there are really good people – I am sure there are some really fantastic independent people who would be able to do this – they will simply not be independent enough to comply with Article 2 if the framework is not in place for them to act independently and if it can be overridden by, for example, the Secretary of State. That is the way I look at it. You then have to add all the other things in the Bill to that, but those two basic points are enough to defeat any assessment of the Bill's compatibility, in my view.
I thank Ms Kilpatrick. I have only 17 seconds left, so I will just say-----
We can have another round of contributions.
I was just going to say, in respect of the Nationalities and Borders Bill, that we have not touched upon the impact on refugees.
I have questions on that myself but I will wait until I let everybody speak first, by courtesy of the Chair. However, Senator Currie is raising a key issue. The next speakers will be from the SDLP, followed by those from the Alliance Party. I call Ms Hanna.
Ms Claire Hanna
I thank all the commissioners. I really appreciate all their input and expertise today and also their guidance and expert information on many of the very challenging issues we have been dealing with over the past few years, flowing from Brexit and legacy issues.
It is good to see the depth and breadth of the co-operation and collaboration between the commissions. They are doing joint work.
The danger in coming in fourth in these meetings is that many of the big topics have already been ably covered by my colleagues. I do not want to run over those issues in depth. I do, however, wish to pick up on a couple of issues, including those touched on by Senator Currie in respect of electric travel authorisation and advice that the committee might have provided, been asked to provide or thought about providing, particularly in the context of transport and people privately and publicly in the business of transporting people across the Border. Has any advice been sought or prepared for them and their obligations under the ETA as we think it might exist?
Ms Kilpatrick's evidence in respect of the Northern Ireland Troubles (Legacy and Reconciliation) Bill at the Northern Ireland Affairs Committee was enlightening and instructive. Many of us would concur that it is largely irredeemable but we are in the business of doing what is possible, for better and worse. We will get a sense of how meaningful this is in the coming weeks and months. There have been noises about accepting serious amendments and so on. Have the commissions been asked for advice by the Government in Dublin? Has that been given? Has guidance been provided in that regard?
I also wish to ask about the Nationalities and Borders Act, and the general context for asylum seekers and refugees in the North and the South, but particularly in the North, which is obviously where most of the cases I am dealing with arise. There are pressures around accommodation and resources for asylum seekers and human rights implications for how those services are being provided and not provided. The issues of the ETA, the legacy and the rights environment for asylum seekers have been touched on but those are the points on which I want to pick up.
Those are good points. Our guests may respond however they wish.
Ms Geraldine McGahey
In respect of advice provided in relation to transport, the Equality Commission for Northern Ireland received a complaint from an organisation in respect of racial profiling on the Border. It could not be substantiated with evidence. Getting away from that, we did seek advice as to who was issuing the policy and whose policy it was to stop a bus, for example. It is not the policy of the transport provider to stop and invite the inspectors on, whoever they might be. Whether it is the PSNI, the Garda or border control, the transport provider must stop because that is where the power lies. It is a matter for the policy of those organisations as to who they would seek evidence from to prove where they are from.
Asylum seekers in Northern Ireland gave the equality commission some serious concern. We are receiving a lot of correspondence about the dreadful circumstances in which asylum seekers are being accommodated in respect of their dietary requirements, medical care, schooling, etc. The commission is powerless to do anything. Discrimination legislation does not restrict the ability of the immigration services to discriminate against someone in the asylum and refugee programme. It is exempt from the anti-discrimination legislation in respect of race or anything else. Work needs to be done in that regard. We are trying to find a way to raise the evidence we are receiving to another platform in order to gather some kind of momentum and advocate on behalf of the group. However, it is regrettable that we have no legislative basis on which to act.
Ms Sinéad Gibney
I thank Ms Hanna for her comments and questions. To date, the Irish Government has not asked us for any advice on the legacy Bill. I earlier mentioned that we have not dealt with this matter at commission level. We have a clear remit to protect and promote human rights and equality in Ireland. We have powers to comment on legislation and provide advice on it as it progresses through the Houses of the Oireachtas. We do not have that same power to apply to other jurisdictions so it is not within our remit. However, Ms Kilpatrick has already mentioned the joint committee, which is probably the forum at which we will progress this issue. As Ms Kilpatrick has ably pointed out, Article 2 of the European Convention on Human Rights, and people's right to an independent investigation, concerns us most. That is where we will be advancing it. Of course, if the Irish Government were to ask us for specific human rights and equality advice on UK legislation, we would take that request under consideration, as we would with any request from the Government.
Ms Hanna also asked about asylum seekers and refugees. I will contextualise those issues in today's discussion. We know that approximately 9,000 people have applied so far this year for international protection in Ireland. That is far above last year's level. There were approximately 2,500 such applications in the whole of last year. We are seeing unprecedented numbers coming through. There is some speculation that some of that is related to more stringent UK policy, such as the Rwanda policy. To my knowledge, and I would love to hear any comments anybody else has to make, there is no hard evidence for that. There are other potential factors to explain the increase, which include, for example, the lag from the pandemic. There are other reasons why we might be seeing such a glut arising. Our biggest concern at the moment is the emerging two-tier system. The treatment of those refugees who have come here from Ukraine has been positive and heartening. I applaud the different groups that are working to provide that response. Unfortunately, however, those people in the direct provision system in Ireland continue to experience human rights violations within their international protection experience. That is what we most want to see addressed. We want direct provision to be abolished, as was outlined in the Government White Paper. While I fully appreciate that we have unprecedented numbers - this is an unprecedented situation and we can all expect delays - that commitment must be honoured and we must see tangible actions to honour it. Our biggest concern is about that two-tier response.
I do not think there is anything else I wish to say in response to Ms Hanna's comments. Perhaps Ms Kilpatrick will have something to add.
Ms Alyson Kilpatrick
On the question of legacy, Ms Hanna is absolutely right. However, her considerations are democratic considerations which I do not have the luxury of considering.
Ms Claire Hanna
I totally appreciate that.
Ms Alyson Kilpatrick
All I can say is the law is as it is at the moment. It is not compatible with human rights law at the moment. A democratic force behind a collective to change is far outside my remit. If it is achieved, I am certainly not going to be the one to say it should not be done. Does that help to show the balance in what I am trying to say?
Ms Claire Hanna
It absolutely does, and I completely appreciate the different perspectives. As I said, the input and advice Ms Kilpatrick gave was invaluable for setting out the parameters in the early stages of scrutiny and the extent to which compromise is possible in that regard. Scrappy decisions will have to be made about how and where the Bill can be amended. I thank our guests.
Ms Alyson Kilpatrick
I am certainly not the one to try to stop anyone coming up with ways to fix the situation.
Ms Claire Hanna
I have no intention to do that.
Ms Alyson Kilpatrick
I wish Ms Hanna good luck.
Ms Claire Hanna
I thank Ms Hanna.
Ms Alyson Kilpatrick
On the question of advice to transporters and travellers, we have not been asked directly for advice. The only advice we could give if asked, and we are keen to give it, relates to who needs and who does not need an electronic travel authorisation. It is difficult to tell people that those who do not need it should not carry a form of identification and ask them to make the authorities prove they can ask for identification from people crossing the Border on a bus.
That sort of flags up why this provision is so difficult.
Lastly, on asylum seekers' accommodation in Northern Ireland, we are on this as a commission. We have been meeting with relevant organisations and individuals, including the Home Office. We are looking in particular at the conditions in which those people are being accommodated. But for the funeral of the late Queen, we would have had that meeting last week. We will be able to the committee on where we get with that. We certainly consider it to be a serious human rights breach in relation to conditions.
Ms Claire Hanna
I appreciate that and we will be in touch.
Dr. Stephen Farry
I will ask a few questions and I hope all three of our witnesses will pick up those that are most relevant to them and respond.
I refer to the electronic travel authorisation. Without going over old ground, I ask for views in respect of the current situation in terms of discussions between the UK and Irish Governments around some possible solutions. Our understanding from the Home Office is that there is some engagement with the Irish Government but only on residents in Ireland, not the tourist angle. The words used have become slightly more concerning in terms of the way that engagement has been phrased since it was first mooted in March or April last. It was notable that when the UK immigration plan was published in July, there was no reference to the Irish context in any shape or form, either positive or negative, in terms of any outcomes or progress. Since then, there does not seem to be much progress as such. Following from that, are there any particular views on solutions for human rights or equality implications that may arise from that? One of the things I picked up was that people may be required to have a driving licence in their possession or some other form or paperwork that proves residence. It could almost be the case that while people will not have to travel with their passport, they will have to travel with their electric bill. How would that impact on people who do not pay the bills, including younger people? What are the witnesses’ thoughts on that particular angle?
On the asylum issue and refugees more generally, I concur with the concerns expressed in responses to earlier questions. With reference to the common travel area, are any of our witnesses picking up any potential tensions on the UK Government side as the UK increasingly diverges from good immigration practice and given that Ireland has a more generous policy? How does that cut across with the UK’s approach, in particular, for those who have come from Ukraine into southern Ireland and then moved into Northern Ireland informally or people who have perhaps diverted and, rather than crossing the English Channel, have come through Ireland to relocate to the UK? Are there any tensions around that?
I have a question largely for Ms Kilpatrick. To go back to any potential human rights legislation unpicking commitments to the European Convention on Human Rights and the domestic Human Rights Act, will she comment on the potential implications for the criminal justice policing reform in Northern Ireland, given that the particular aspects that came out from the Good Friday Agreement were heavily predicated on human rights considerations? Many of the practitioners, including senior police officers, talk about the importance of human rights and that they are now so integral to policing in Northern Ireland that anything that would undermine that would be of concern.
I have a question for Ms McGahey from the Equality Commission for Northern Ireland. Earlier today, some of the Northern Ireland census figures were published. One of the big takeaways from those is that religion is becoming an increasingly less reliable indicator of other identities or political persuasions. To what extent do we need to reconsider the approach being taken to issues such as fair employment monitoring? That is another aspect of public policy which is often constructed around two traditions or two communities. Can we still base our statistical analysis of equality considerations around public policy access based on a two-communities model, in particular in light of today’s census figures?
Ms Sinéad Gibney
I will let my two colleagues lead because they probably have the most to add. I will jump in if I have anything to add at the end. I thank Dr. Farry for his comments and questions. We were not exactly sure what time the public session would end but I know my colleague, Ms McGahey, has to get back up to Belfast.
You have to go when you have to go.
Ms Sinéad Gibney
I just wanted to alert the Chair to that.
We are nearly finished.
Ms Sinéad Gibney
Okay.
What is Ms McGahey's timeline?
Ms Geraldine McGahey
In or around 3.30 p.m., but I could stretch to perhaps 3.45 p.m.
We will finish. That is perfect.
Ms Geraldine McGahey
If I may, I will just address some of those queries, starting with the last one on the census in Northern Ireland and fair employment. The census figures that were released today very much show that Northern Ireland is a place for sharing. There is no straightforward majority. It also shows, I believe, that our two-community model is no longer relevant. We have a growing ethnic minority community that needs to be accounted for in terms of data collection and monitoring for the public sector generally. If we are going to develop policy that is good for everyone in Northern Ireland and can deliver against the objectives of equality for all and good relations, we then need to change our way of looking at communities. The commission is currently looking at how we might develop some recommendations in relation to the amendment of the fair employment and treatment order. We are loath to go into it in too much detail because it is fairly important to the Good Friday Agreement, etc. We think it is now coming to the time where we should be looking at how the finer detail of that looks at the monitoring of communities. I very much agree with Dr. Farry on that and he will see something on it coming from the commission very shortly.
Dr. Stephen Farry
That is very welcome. Ms McGahey should feel free to answer any of the other questions before passing on to her colleagues.
If it is helpful, I will invite Mr. Brady, who has not had an opportunity to do so, to ask a question of Ms McGahey now as she has to leave at 3.30 p.m.
Ms Geraldine McGahey
I just want to make a comment, if I may, on the electronic travel area and the correspondence we sent to the Home Office in January and the response we got a good while thereafter. I will refer to part of the response because it talks about enforcement and guidance within the common travel area. It states that intelligence-led operational activity is used to tackle to known abuse of the common travel area and is only undertaken away from the land Border. It states also that the UK recognises the requirement to obtain an ETA may be different for those residing in Ireland and, therefore, the UK and Ireland have agreed to work together to establish whether there is scope for a workable UK-Ireland data-sharing solution. That is the only information we have on the fact that both Governments are working together to try to determine and establish some regulations that might deliver on the Nationality and Borders Act as it is now. If we have anything else, we are happy to share it with the committee in the future.
I call Mr. Brady to contribute if he wishes and we will finish the public session at 3.30 p.m. He is on silent at the moment.
We still cannot hear Mr. Brady. His sound is very low. I am trying to bring him back in. From here, his microphone seems to be muted. Is it? It is not. He should be okay now. We should be able to hear him. No. We still cannot hear him. He may want to switch off and on his sound just to check it again.
He could message me with his question.
Yes. That would be fine.
Has everybody else who wants to come in come in now?
I think so.
The Chair has not come in.
I will ask a couple of questions. They are not very difficult.
I am concerned about older people. In the Republic of Ireland, in the first four months of the pandemic, something like 1,500 people passed away. Some 65% of them were living in nursing home accommodation, while in the UK the proportion was 43% and in Sweden it was 47%. Who vindicates the rights of older people, in the witnesses' view? Is that their role in the context of the quality of care delivered? I know it is not part of the discussion for today, but this matter concerns me greatly. In some nursing homes - and I know that different jurisdictions are represented here - there are serious issues around human rights and whether residents were appropriately or properly treated and their rights vindicated.
The second issue I wish to raise is about refugees, particularly those from Ukrainian. In my constituency, I have had a complaint in recent weeks, regrettably and sadly, that they feel intimidated and bullied and they have been shouted at and threatened with deportation back to Ukraine. They have been treated very badly. I have been in contact with the Department. I have not got an appropriate answer from it yet as to who will deal with these issues and vindicate the rights these people intrinsically have. Today, somewhere in the midlands, Ukrainians were moved with two days' notice, which is appalling. There are issues like that. This may not be the correct issue for the witnesses today. Perhaps they could respond to my comments later. Those are the issues that concern me right now.
Ms Sinéad Gibney
I will give the Chairman some answers, and perhaps if he wishes to engage with the commission-----
I can do so later.
Ms Sinéad Gibney
Yes, exactly, on a sidebar. I can give the Chairman certainty that the rights of older people are absolutely within our remit. Indeed, they are a priority for us in the strategic cycle, particularly in the post-Covid world, as the Chairman said. What we want to see is better scrutiny and better equality-proofing and human rights-proofing of policy and legislation. Unfortunately, that did not happen well enough during the pandemic. What I have heard directly from older people is that they felt infantilised and treated as a homogenous group when we know that they are a very diverse group. We all enjoy living longer and living healthier longer, so those rights absolutely are a priority for us. I would be more than happy to continue to engage with the Chairman on that.
As for the issues for refugees, I agree with the Chairman. Regardless of the numbers and of how unprecedented this situation is, and regardless of where a refugee comes from, Ireland has international and domestic human rights obligations and standards that it must meet. We are not meeting those right now as a State. There is the very basic element of vulnerability assessments in order that, for example, as we see the increase in tented accommodation, which, I understand, is where we are at, we make sure that at least those most vulnerable within that population are not placed in such a setting and that regulatory inspections are carried out. Those situations are dangerous places for human rights infringements and violations. Again, I am more than happy to directly engage with the Chairman's office.
On the point about having a person or an office to whom or to which people can articulate their issues, and which is independent of the service providers, that is hugely important. Its absence leads to abuses in some cases, I think.
Ms Sinéad Gibney
Absolutely, and our office has legal assistance powers whereby we can assist people. The NGOs in this space are incredibly effective. It is really important to reiterate that we are a body which monitors the human rights and equality activities of the State. It is the State's obligation and, for example-----
Duty.
Ms Sinéad Gibney
Yes. We have done a lot of work on dialogue and on trying to counteract what we see as increasing far-right rhetoric happening that, as the Chairman said, fuels this kind of negative response, but the State has an obligation there. It must deal with that and must deal with the promotion of anti-racism, not just dealing with racism when it happens but helping people understand that, as an increasingly diverse society, it is our obligation as a society and the State's obligation to support that.
Ms Geraldine McGahey
It really pains me to say this, but while we have a Commissioner for Older People for Northern Ireland, we have no legislative basis on which to afford protection to older people. We are the only jurisdiction on all these islands that has no anti-discrimination legislation in respect of older people accessing goods, facilities or services. It is something we have been seeking for a considerable time and we hope that it will be addressed soon, but there is no indication that will be the case, so at the moment there is no legal protection for older people.
Will the witnesses send me or the committee secretariat on the reports they have on that? Mr. Brady was looking for an answer earlier. Maybe Ms Kilpatrick wants to come in. I do not know.
Ms Alyson Kilpatrick
While Mr. Brady is trying to get his sound working, does the Chairman want me to answer the other question?
Sure. Go ahead.
Ms Alyson Kilpatrick
In response to Stephen Farry's question about ETAs and a recommendation, what the commission recommended is deceptively simple. It is that all journeys into Northern Ireland originating from Ireland are exempt from ETAs. That would cover everybody and would fit with the common travel area.
As for policing and justice, the Patten reforms, although a lot of the talk was about symbols, flags, etc., had as its central message that policing is the protection of human rights, and a whole oversight framework is built around that. The Human Rights Act came in shortly after the Good Friday Agreement, and all the work the policing board does is built on monitoring compliance of that Act. It enabled police reform to such a degree - and I had an up-close look at this for a number of years - that successive chief constables said there should be greater human rights protection, not less, and argued for more codification, not discretion without a framework of principles.
The commission has jurisdiction in respect of older people. Of course, the fact that they are older does not mean they are not human beings for the purposes of the Human Rights Act. That is the beauty of human rights. They apply regardless of age or any other status. We are looking at the inquiry into the response to Covid and the use of care homes, etc. The older persons' commissioner has a particular remit, but we can bring cases based on discrimination or based simply on breach of human rights. An older person, even without the capacity to live independently, still has human rights, the same way as an 18-year-old or 19-year-old fit young man or woman has. That is how we approach it. The same point is made about refugees. They are simply human beings who happen to be in the jurisdiction of somewhere that is bound by the convention, so they are entitled equally as everybody else. That is the nature of human rights and why it is so important, going back to the very start of this, that human rights are respected as universal, not as a hierarchy.
Does Deputy Conway-Walsh have Mr. Brady's questions? We have three minutes for them.
I do not have Mr. Brady's questions yet. I do not think-----
Send them on.
May I make two comments?
Yes, of course.
I have real concerns about resources not being available for the two commissions for the work that needs to be done and to maintain independence. I am always mindful of the Combat Poverty Agency, which operated here, I think. Not to equate the two, but it did really valuable work. The value of that type of work is huge. I do not know if the witnesses could give us some more information as a committee or if there is anything they can see that we can do in that regard, even through the shared island unit or anything like that.
The other comment I will make is about the PhD researchers and the problems they are having when they have to do all-island research. I met with them earlier this morning, and the research requires them to do interviews in the North and so on. I am talking about the impact that will have on research and development across the island at a time when we want to encourage more research and development.
If the issues raised about finance or letters that may have been written are germane to the work of this committee, we would be happy to-----
(Interruptions).
I am sorry about that sound issue. If the witnesses are happy to send the correspondence, we will take them up on it. I have to let them go - deadlines are deadlines. This has been a very important meeting, which has influenced our thinking. Members will be happy to fully support and engage with our guests on the issues they have raised. I will certainly engage. I thank them very much.
The joint committee went into private session at 3.30 p.m. and adjourned at 3.48 p.m. sine die.