I thank the Chairman and the committee for the opportunity to outline the Northern Ireland Human Rights Commission's position on the issues that are being examined today. The commission has worked productively with its counterpart, the Irish Human Rights and Equality Commission, through a joint committee that was established under the Good Friday or Belfast Agreement to protect and promote the strongest possible human rights and equality protections on foot of the United Kingdom’s decision to leave the European Union. We also have worked effectively with the Equality Commission for Northern Ireland in those discussions. We have also had a very significant engagement with civic society more broadly. The joint committee that was established under the Belfast Agreement entered into the discussions with six key aims: to ensure a commitment to non-diminution of rights is evident and enforceable in the final withdrawal agreement; to safeguard North-South equivalence of rights on an ongoing basis; to guarantee equality of citizenship within Northern Ireland, a matter to which I will return; to protect Border communities and migrant workers; to ensure evolving justice arrangements comply with the commitment to non-diminution of rights; and to ensure a continued right to participate in public life for EU citizens in Northern Ireland.
In our recommendations and our work, we have sought to preserve existing protections, while keeping pace with human rights and equality protections as they develop within the EU in the future. In our view, while substantial progress was made in the withdrawal agreement, significant gaps remain and certain issues need to be resolved. The question of citizenship rights is one of those issues. In particular, consideration must be given to how existing EU law rights can be protected in a way that is consistent with the recognition in the Good Friday or Belfast Agreement that people can identify themselves, and be accepted, as Irish or British, or both, without any adverse consequences for rights. We think there are three strands to resolving this: first, through the draft withdrawal agreement or any subsequent agreements agreed between the UK and the EU 27 or both; second, through bilateral agreements agreed between the UK and the Irish Government; and third, through legislative arrangements that are put in place by the UK Government within its own domestic laws. I will take each of these briefly in turn.
On the draft withdrawal agreement, the December 2017 report acknowledged that people in Northern Ireland who are Irish citizens will continue to enjoy EU law rights as EU citizens where they reside in Northern Ireland. However, it remains unclear what these rights entail in practice. The nearest thing we have got to a public indication was a fact sheet on the Ireland-Northern Ireland protocol in the draft withdrawal agreement, which was issued by the European Commission. The fact sheet sets out the rights to be guaranteed, including the right to non-discrimination on the basis of nationality, the right to move and reside freely within the EU, the right to consular protection or help from the embassy or consulate of any other EU member state in a country which has no Irish Embassy or consulate, the right to petition the European Parliament and complain to the EU Ombudsman, the right to access European Parliament, European Commission and Council documents under certain conditions, the right to access to the EU civil service and the right to contact and receive a response from any EU institution in one of the official EU languages. It appears that those rights apply to Irish citizens in Northern Ireland when they travel elsewhere to the European Union, rather than the reverse, on their return to Northern Ireland from the EU. Under the Westminster European Union (Withdrawal) Act, the supremacy of EU law over UK law will no longer apply after the EU has left the EU.
The value and impact of any retained EU law rights will depend on the agreements that are finally reached to retain rights for people living in the UK as a whole. The UK Government's position is that it wants to retain access to the European health insurance card for everyone across the EU. It wants to retain access to Erasmus programmes throughout the UK. Such arrangements have not yet been agreed because the draft withdrawal agreement is stuck in Westminster. We in the commission have a particular problem with the current position that extends beyond the need to gain clarity. The current position is that these rights will apply only to those who identify as Irish within Northern Ireland. For us, that creates a potential move towards an unequal citizenship that is contrary to the principles of the Good Friday Agreement, unless those rights are extended to all the people of Northern Ireland. That is the position of the joint committee in respect of this situation.
The second strand I would like to focus on is the bilateral agreements agreed between the UK and the Irish Government.
It appears inconceivable that the EU will directly grant people from Northern Ireland more EU law rights than those applying to EU citizens remaining within the EU as an intrinsic position. Nonetheless, the EU has recognised the common travel area and that it provides a route for bilateral agreements to be reached which provide for additional rights. This has been recognised as legitimate for social security purposes in the UK Supreme Court decision in Patmalniece v. Secretary of State for Work and Pensions. In terms of access to certain social security benefits and residence clauses, being a part of the common travel area confers advantages over and above other EU nationals, and it is perfectly lawful.
We now know that the Irish and UK Governments have worked on arrangements to ensure provision is in place to, for example, mutually recognise professional qualifications in each state, to pursue further and higher education, to access health care, social and supported housing, homeless assistance and to provide an entitlement to vote in local and national parliamentary elections. I understand that will be reflected in the memorandum of understanding being signed today by the two governments. As ever, for us and others, the detail of the memorandum of understanding and whether any package of legislative measures that may follow will require careful scrutiny in order to assess the value and the legal protections that will be provided. An agreement on reciprocity in social security was also reached at the beginning of February 2019 and has now been published. The commission’s position is in line with the research we commissioned last year, which noted that the legal underpinnings of the common travel area are built on sand, and that any future arrangements should be placed on a common travel area formal legal footing through a treaty in order to copper-fasten and future-proof arrangements. I am happy to come back and talk about that further.
The common travel area is not comprehensive and it does not, for example, cover family reunification and family migration arrangements for people in Northern Ireland, including Ms Emma DeSouza. For us, the announcement by the Tánaiste that the Irish Government would underwrite the cost of maintaining the European health insurance card, EHIC, arrangements for everyone in Northern Ireland in the event of a no-deal scenario was an interesting development. That welcome reassurance extends beyond those who identify as Irish citizens and is consistent with the commitment contained in the Good Friday Agreement. We are interested in whether that is based on citizenship or residence in Northern Ireland, but it shows that one can have at least a form of equal citizenship to preserve rights in line with the agreement.
Third are the UK domestic arrangements. The British Nationality Act 1981 confers British citizenship on those born in the UK after commencement, if at that time the person’s father or mother is a British citizen or is settled in the UK. In effect, and this is slightly simplistic but not far off it, people in Northern Ireland are treated as British citizens whether or not they identify as British. That clearly runs contrary to the clear intention and spirit of the Good Friday Agreement. That was acknowledged as such by the Prime Minister Theresa May in her speech in Belfast recently when she outlined "the birth right to identify and be accepted as British, Irish or both and to hold both British and Irish Citizenship is absolutely central to the Belfast Agreement". In that same speech, the Prime Minister set out her response to people encountering difficulties in securing rights as Irish citizens to bring in family members. She had asked the Home Secretary, working closely with the Secretary of State for Northern Ireland, to review these issues urgently and to deliver a long-term solution consistent with the letter and spirit of the Belfast Agreement. Rather disappointingly, it now transpires from answers to parliamentary questions that the review is informal, is confined to family migration rules for the people of Northern Ireland, and has no terms of reference or fixed timeline save that a solution will be set out as soon as possible. We would have preferred a more comprehensive and inclusive review, but I have little doubt that the Irish Government is seeking to bring its influence to bear behind the scenes. We think, frankly, that it should be more upfront and open, and wider than that.
In Westminster, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill is before Parliament. It is a bit of a mouthful. That Bill includes the repeal of the main EU law relating to free movement rights. In future, such rights will be governed by UK law alongside any agreement reached between the UK Government and the EU 27, augmented by any common travel area arrangements. The Good Friday Agreement citizenship rights have not been incorporated into UK domestic law and the commission recommended in its response to the legislation that a new clause be added to amend section 1 of the British Nationality Act 1981 to recognise "the birth right of all people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose" on a no detriment basis. That recommendation, interestingly, is in line with the advice we provided on a bill of rights to the Secretary of State in December 2008. At that time, the response of the Northern Ireland Office to that recommendation was instructional. It outlined:
The government recognises the considerable symbolic importance of a choice by a person to identify himself or herself as British or Irish or both, in line with the commitments made in the Belfast Agreement and believes that such a choice should be respected. In the view of the Government, such a right is central to any bill of rights for Northern Ireland. The Government therefore believes that any bill of rights for Northern Ireland should enshrine in legislation the right of the people of Northern Ireland to identify themselves and be accepted as Irish or British or both.
The consultation document acknowledged the need to discuss with the Irish Government how such a right can be formulated and made effective. We would prefer to see a bill of rights to do that, but in the absence of one, as envisaged within the Good Friday Agreement, we would recommend that a similar legislative commitment is made effective in UK domestic legislation following discussion with the Irish Government.
The joint committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission is due to meet in a fortnight's time. We will consider commissioning some research on both the legal and practical ways in which we might address the outstanding citizenship issues linked to the UK leaving the EU, and how they can be effectively resolved in line with the principles enshrined in the Good Friday Agreement. I am more than happy to expand on any of those issues following questions. I thank the Chairman.