Mr. Mark Durkan:

I welcome several of the issues the witnesses have touched on, not least that it has made a point of going to the fundamental question of the durability of the European Convention on Human Rights, via the Human Rights Act 1998, as far as the North is concerned.

That issue is being underplayed in the debate on this island around Brexit because people do not realise that the agenda of many of those who are pushing Brexit at UK level does not stop there but seeks also to achieve the disposal of the Human Rights Act. Such a development potentially has implications for the institutions established under the Good Friday Agreement. The great repeal Bill that is being discussed in Westminster is basically a great download and save Bill, which notionally will take all existing EU law and put it in UK law. The problem, of course, is that all those laws can thereafter be deleted at will. If, at the same time this is happening, we have a debate that moves towards the abolition of the Human Rights Act, we are facing a situation whereby people will insist that the UK Parliament should receive those competencies transferred from Europe, even though many of them, under our devolution settlement and under the Good Friday Agreement, are properly devolved. There is a risk that efforts will be made to keep those competencies in some type of holding pattern in Westminster so that when devolution does take place, after the Human Rights Act has been removed, the rights benchmarks attaching to these things have already been interfered with. If those key, rights-sensitive areas of devolution are only properly devolved after the rights have already been diminished, they cannot be topped up again in the North without cross-community support. If they devolve straight away on transfer from Europe, however, they cannot be diluted except where there is cross-community support to do so.

This is probably taking us into a more political space than we might want to be, but it is a key issue. It is not a wee, pedantic point of preciousness about where or when devolution begins. Rights can be lost within that gap. In fact, we could well be faced with a very serious mind-the-gap situation in respect of children's rights and all rights. This is not the paper point some people might seek to make it as to where devolution transfers and what rights standards apply at that time. The issue is that once we find ourselves outside the sort of social policy Wi-Fi that comes from being in a commons rights understanding, that is when we are set to lose. Many years ago, when I was Deputy First Minister and we were drawing up the legislation to establish the Commissioner for Children and Young People in the North, the then British Secretary of State intervened because some of the proposed powers of the commissioner would apply to children in detention, which came under the Northern Ireland Office. The Secretary of State told us we could not have the term "best interests of the child" in the legislation. There followed a whole rigmarole as to whether we should be referring to welfare, rights or best interests. We were eventually successful in including all three but the point is that when one is outside that ambit of being able to say "This is the standard we are in and we want to stay with this benchmark", then, at a policy level, the people who are advocating the highest standard of rights will be in a weaker position. That is where context is important in considering these matters.

In regard to some of the cross-Border issues, a lot of the good work that was done in Border areas, such as in the area of family and child services, including for Traveller families, was taken forward under the auspices of Co-operation and Working Together, CAWT, which was EU funded. I am not sure the two Administrations would have sorted out many of the issues that were sorted out or improved were it not for that type of funding from Europe. Now all that funding is potentially lost for the future and that is where we face the real loss. We must challenge the complacency on these issues, the idea that what we have now will always be there and everything will just carry on steadily. That sort of progress does not roll along on the wheels of inevitability. It needs systems, structures and a context, and it needs funding.

Reference was made to the situation of cross-Border workers and benefits for children and so on.

When tax credits were first introduced as a progressive measure by a Labour Government across the water, under the rules, child allowance that was paid in the South counted as part of the means test in the United Kingdom and the North. That was only changed when I got the Paymaster General to reverse it and give money back to people. That came about because nobody had properly thought about it. We are in a situation now where, post-Brexit, the EU-derived rule that child benefit or allowance is paid according to where the person works will go. That issue arose when David Cameron got his Brussels deal. When I asked both him and George Osborne in the House of Commons if child benefit would not have to be paid to EU workers and what that meant in respect of cross-Border workers in Northern Ireland, they did not know. They had not thought about it and said nobody had raised it until I asked the question. There are aspects of that which could work out well for some families and children, depending on the way that rule falls, but it must be taken in hand to ensure we do not end up with many inadvertent outcomes that cause problems nobody intended to cause . However, it will be very difficult for anybody to properly solve this matter in a coherent, rights-based way.