Oireachtas Joint and Select Committees
Thursday, 24 February 2022
Joint Oireachtas Committee on the Implementation of the Good Friday Agreement
Engagement with Representatives from the Committee on the Administration of Justice
Our engagement today is with the Committee on the Administration of Justice, which is represented here in the committee room by Mr. Daniel Holder, deputy director, and online by Ms Una Boyd, immigration project solicitor and co-ordinator. They are both very welcome.
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 are to give evidence from a location outside the parliamentary precincts are asked to note they may not benefit from the same level of immunity from legal proceedings as a witness giving evidence from within the parliamentary precincts and may consider it appropriate to take legal advice on this matter. Witnesses are also asked to note that only evidence connected with the subject matter of the proceedings should be given. They should respect directions given by the Chairman and the parliamentary practice to the effect that, where possible, they should neither criticise nor 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 that person's or entity's good name.
I call Mr. Holder to make his opening statement.
Mr. Daniel Holder:
We are very grateful to the joint committee for the invitation to engage today. The Committee on the Administration of Justice, CAJ, is a Belfast-based independent human rights organisation. We are the sister organisation of the Irish Council for Civil Liberties, ICCL, with whom we recently held a conference in Belfast on policing reform marking 20 years of the PSNI. A second follow-up conference is now scheduled here in Dublin for 24 March.
We also co-convene the Equality Coalition with UNISON, a network of over 100 equality NGOs and trade unions in the North. The coalition works collectively on issues, including seeking the effective implementation of the rights-based provisions of the Good Friday Agreement and other agreements of the peace process that were to constitute safeguards over the exercise of executive and legislative power. In fact, last year, we updated our mapping exercise documenting the status of the implementation of the principal human rights-related commitments made as part of Good Friday Agreement and subsequent agreements up to the New Decade, New Approach, NDNA, agreement. We produced a “policy asks” document subsequent to that, mapping the reform the Equality Coalition believes is necessary for any semblance of functioning of power-sharing in the North. Much of this involves the implementation of what are key outstanding measures from these same agreements. That includes some duties such as the anti-poverty strategy and the Irish language strategy, which are domestic legal obligations but, nevertheless, their implementation has been obstructed to date despite the fact they originated way back in the St. Andrews Agreement in 2006.
Into 2022, we are in a situation where even the core Good Friday Agreement commitment to, and achievement of, the incorporation of the European Convention on Human Rights, ECHR, into Northern Ireland law is under threat from the UK Government. While there were many welcome commitments within the body of NDNA, to date, far from it constituting a new approach, unfortunately, a very familiar pattern of obstructed implementation of many of its pledges has already recurred. We feel we are being propelled back into an endless cycle of renegotiations of things that have already been committed to but whose implementation is being blocked.
For example, despite repeated commitments, no programme for government at all has been adopted during the present mandate, nor has the Irish language Act and broader NDNA language legislation been introduced, despite drafts of both being already negotiated and included in the text of NDNA. The Irish language Act would represent long overdue progress, albeit it still falls below meeting treaty-based commitments to the Irish language entered into on the back of the Good Friday Agreement.
Expert working groups within the Department for Communities have also progressed a number of equality strategies committed to in NDNA, but they have not been formally adopted in the current mandate.
A key ask of the Equality Coalition has been the removal of the veto introduced at the time of the St. Andrews Agreement that precludes Stormont Ministers from taking "controversial" or "significant" decisions outside the framework of the programme for government and instead requires the full Northern Ireland Executive to take the decision, with a provision whereby three Ministers can also require both unionist and nationalist majorities.
In practice, that veto has turned on its head the intention of the Good Friday Agreement, GFA, that safeguards over the exercise of power be grounded in objective rights-based criteria. Rather, the St. Andrews veto has been used as a way to block measures that further equality and rights. It has had a particularly broad impact in the present mandate where there is no programme for government and has been invoked on at least half a dozen occasions by DUP Ministers.
This is a far contrast from the original intention of the GFA whereby safeguards on power-sharing were to be centred on the Northern Ireland bill of rights. We welcomed that under NDNA, a process was reinitiated to take forward the bill of rights and an Assembly committee established. It is concerning that in part its work has been impeded, not least by the non-appointment of a panel of experts to assist it. Nevertheless, considerable expert evidence was delivered to the committee and reflected on in its report. There is a basis now for the Northern Ireland Human Rights Commission to take forward the bill of rights and advise government.
It is worth reflecting, at this juncture, on what a bill of rights could have prevented had it been in place as intended under the GFA. It was to be the scrutiny tool for valid petitions of concern in the Assembly. It was to guard against past abuses such as gerrymandering of housing, which resurged during previous mandates in the absence of the bill of rights. It would have protected against discriminatory decision-making on LGBT, minority rights etc.
The bill of rights did not just apply to Stormont. It would have prevented regressive actions by the UK Government. The obvious example of that is the current UK command paper on legacy. The plans for a UK legacy bill would shut down all meaningful investigations into conflict-related deaths, as well as introducing a Pinochet-plus amnesty. That would have simply been unlawful, had the bill of rights recommended by the Northern Ireland Human Rights Commission been in place.
The bill of rights was to expressly contain provisions requiring legislation that ensured effective investigation into conflict-related violations of the right to life. The current attempts by the UK to roll back the domestic application of the ECHR would have been mitigated against by the bill of rights. From our perspective, should the UK proceed with its legacy Bill, it is imperative that the Irish Government intervenes through international and other legal mechanisms to challenge that.
It is also worth noting that the bill of rights, given it had provisions to prevent any differential treatment of British and Irish citizens in the North, would have precluded the type of hard Brexit pursued by the UK. Brexit has thrown up new challenges that could also be reflected in the bill of rights, including the issues around freedom of movement in the common travel area, CTA, which was pretty much a given at the time of the GFA. We have engaged with a joint body of work recently on this issue with a range of migrant groups led by the Derry-based North West Migrants Forum.
To this end, we are especially concerned that the land Border is about to be hardened for considerable groups of ethnically-diverse citizens within our Border communities on the basis of the UK’s present Nationality and Borders Bill introducing, as it plans to, a requirements for prior electronic travel authorisations, ETAs, for non-Irish EU citizens and others who do not require UK visas. This requirement will be backed by in-country immigration checks and criminal sanctions, which would include potential imprisonment for crossing the Border without one.
This means that such persons who presently have lived cross-Border lives unhindered will face a hard border obstacle even for short local journeys they have always undertaken, including to nearest shops, school trips, social visits, work meetings etc. There are also implications for cross-Border services, some of which, such as the areas of health are provided on a cross-Border basis.
This extends and mirrors the existing problem of an invisible hard border for persons who are resident one side of the Border but are visa nationals and cannot cross it without first going through the complex process of visa acquisition for what is often a short local journey that can be undertaken unhindered by almost everyone else. A visa national lawfully resident in Derry cannot even visit beaches or hills in Donegal. At times, families are split, as some can go on day trips where others remain trapped inside an otherwise invisible border.
While the UK continues to commit to no passport checks on the Border, we have been concerned for some time about selective passport checks on the southern side of the Border conducted by the Garda. Duties that are further to the Immigration Act 2004 in this jurisdiction, to carry and produce passports when crossing the land border are disapplied to Irish and British citizens and persons exercising EU rights, but are then reapplied to other non-nationals. Clearly, in the context of ethnic diversity, it is not possible to tell different groups of citizens apart and this differentiated system invariably leads to incidents of racial discrimination.
Alarmingly, this circumstance has led to a situation whereby persons of colour, including Irish citizens, can feel required to carry passports on cross-Border bus journeys, including those routes from Donegal to Dublin that transit through the North, whereby other white Irish citizens do not have to. Whether one feels one has to carry a passport is differentiated on the basis of skin colour. On the back of that, we have worked up a series of asks with North West Migrants Forum to seek to end those practices of passport checks and the hard border faced by particular groups of people on this island.
It is notable that there are relevant commitments in the Northern Ireland protocol to the Brexit withdrawal agreement that conflict with such hard borders. Consequently, the human rights and equality commissions in the North have already called on the UK to disapply its ETA system to the land Border. The stated objectives of the protocol to the withdrawal agreement expressly include the avoidance of a hard border. Provisions for the freedom of movement of people are under Article 3 on the provisions for the common travel area, which defers bilaterally to the two Governments to ensure that there is no hard border. Article 2 of the protocol also commits to non-diminution in certain GFA rights as a result of the UK’s Brexit. If that provision is properly interpreted in a good-faith way, it could be transformational, especially for other EU citizens in the Border counties. The risk is, of course, that the UK will take a minimal, regressive and restrictive interpretation of that. It is hoped Ireland and the EU will stand firm by what is in the commitments.
We are grateful for the opportunity to engage with the committee. I am joined by my colleague, Ms Una Boyd, and am happy to answer any questions.
Ms Una Boyd:
Mr. Holder has already covered everything very thoroughly in our opening statement. I just want to introduce the project that I manage which is a strategic immigration project. It focuses on working towards and campaigning for a human rights and humane immigration regime in Northern Ireland. When it comes to the implementation of the Good Friday Agreement, we believe the commitments made apply to all members of our community, not least, that of a rights-based society. I thank the committee for the opportunity to engage with the joint committee.
I said earlier there would be a rotation to be helpful. The order will be Fine Gael, followed by Sinn Féin, Fianna Fáil, the Social Democratic and Labour Party, SDLP, the Alliance Party, the Green Party, Sinn Féin, the Labour Party, Independents and Aontú. The proposal we have here is that we take 15 minutes each and see how it goes. We have two wonderful Fine Gael Senators. Which of them wants to go first? I hate to choose but Senator McGahon is my number one vote, as Senator Currie knows.
I will remember that. Mr. Holder and Ms Boyd are very welcome. I have to say that the information they provided us in advance is incredibly useful. It is also stark in terms of where we are on rights. I thank them for their work, especially, their legal work with regard to legacy and the report they did was very powerful.
We can really see the gaps in the implementation of the Good Friday Agreement and the effect that not introducing the bill of rights has had. We are dealing consistently now with agreements that are not being implemented by the British Government, as well as in terms of things not happening at Stormont that have been agreed to. How common is that and what can we do about it? Our guests outlined the challenges in regard to the bill of rights, the expert panel and progressing that, and they spoke about the international protections from legacy. It has been almost 25 years since the Good Friday Agreement. To what extent have key parts of it not been implemented and successive international agreements not followed through on?
My next question relates to the common travel area, CTA. We have a memorandum of understanding at the moment. I have heard people say a stronger statutory basis is required for the CTA. What are our guests' views on that? Deputy Conway-Walsh, Ms Gildernew MP and I attended an all-Ireland women's forum last week, at which we heard from the human rights commissioners North and South. There was a discussion about how the North is falling behind in respect of rights. I would like to hear our guests' views on that too.
Everything they have said is bang on. It is useful for us to have this information in such detail.
Mr. Daniel Holder:
I thank the Senator for her kind words. We are pleased the information is useful. We are in a pretty dire situation. Clearly, the institutions, as they stand, simply cannot deliver on equality and rights because the array of vetoes that are available to opponents of equality, who project disproportionate power in that sector, means it is almost impossible to get things progressed, even when there are commitments in existing agreements, even when there is a majority in the Assembly, even when there is a majority on the Northern Ireland Executive and even, with specific reference to the anti-poverty strategy and the Irish language strategy, where the commitments constitute binding domestic legal obligations. We applied for a judicial review in 2015 over the failure to adopt the anti-poverty strategy and the Executive was found to have been acting unlawfully. I do not mean to tar all the parties on the Executive with the one brush as in fact, four or five parties welcomed the ruling on the anti-poverty strategy. Similarly, on the Irish language strategy, a judicial review was brought by Conradh na Gaeilge, representing Irish speakers.
The problem is the system commitments are being reneged on by the UK Government but we do not have the system in place that was planned for under the Good Friday Agreement. We have a different system that has been taken in a different direction since the St. Andrews Agreement and that needs to be reviewed. Under the St. Andrews Agreement, the veto I mentioned has been used at least six times during this mandate, namely, three times to block the progress of issues that relate to international obligations on women’s reproductive rights and medical abortion services, twice to block the Minister of Health, Robin Swann's, Covid measures, and once to block an SDLP request to ask the UK Government for an extended Brexit deadline.
The use of that veto, however, is just the tip of the iceberg. Many Ministers, when they are approached, might say an issue is something they are in favour of but that it is not within their power to take the decision because doing so would be controversial or significant and that, therefore, they must defer to the full Northern Ireland Executive. In a period without an Executive and with caretaker Ministers, as will possibly be the case after the next election, we will really see how that veto can simply derail any sort of progress within power-sharing.
Another veto has been used regularly by DUP Ministers to block items going onto the agenda of discussion of the Northern Ireland Executive, including many rights-based issues, such as organ donation and welfare reform. The effort to reform the petition of concern and return it partially to what it was under the Good Friday Agreement, which has led to the petition of concern being untenable, with none of them having been tabled during the current mandate, has simply displaced it onto other vetoes. As for what needs to be done, we need a full-scale review involving both Governments - the Irish Government is co-guarantor of the agreement - to try to put into place the actions that were originally agreed as mechanisms under the agreement.
I might deal with the legacy question before handing over to Ms Boyd to answer the questions on the common travel area. As the Senator will be aware, we are very alarmed by the legacy proposals. The UK Government has not just put forward an amnesty that is worse than that which was introduced by General Pinochet but it has also ended all meaningful investigations into conflict-related deaths. There are two areas where the Irish Government can intervene. One issue that has caught on is something of a false narrative from the UK Government that, at face value, is quite attractive but in reality is just false. The UK Government is trying to present its legacy package such that everything that was proposed under the Stormont House Agreement focuses on criminal justice and prosecutions, and that we need to dispense with that and look at a different truth recovery mechanism. That is simply a false narrative in the sense that the existing mechanisms focus extensively on truth recovery, as we have seen over recent months. There have been two Police Ombudsman reports, both of which are more than 300 pages long, with huge quantities of information recovery and detail on human rights violations. The Ballymurphy inquest, which, again, is a truth recovery exercise, comes under the existing mechanisms. The Stormont House Agreement focused on truth recovery with teeth, whereby there would be a body in the historical investigations unit that would have police-type powers to get to the truth and to produce family reports. What is now proposed by the UK has none of those powers. It is a body reliant on the disclosure of some documents and voluntary co-operation, with a veto vested in UK ministers as to what content is then delivered to families. Countering that narrative whereby this is somehow a shift from criminal justice to information recovery is very important.
If the UK goes ahead with what is an outrageous legacy Bill, it would be up to the Government here to challenge that legally through international institutions, particularly through an interstate case brought to the European Court of Human Rights. This has happened previously, of course, in the context of torture, in the Ireland v. United Kingdom case. Clearly, that will be an avenue if the UK should proceed with this legacy Bill, which we know is not compatible with the European Convention on Human Rights, as the Council of Europe Commissioner for Human Rights has made clear. That is one way the Irish Government could intervene.
Ms Boyd might comment on the CTA questions.
I might come in first with a couple of questions because our time is limited. Mr. Holder outlined the international mechanisms that will be open to the Government to challenge the legacy Bill if it goes forward. Is the European Court of Human Rights the key international mechanism in that regard? This is a bit of a hypothetical question but, if that were to happen, what would be the timeframe to go through such a complex European legal setting?
Our guests spoke about migrants crossing the Border, and I have seen that too where I come from, with Garda checks either on the Enterprise train between Dundalk and Belfast or on the side of the motorway. Do they have much experience of how often that happens? When the CAJ is dealing with the North West Migrants Forum, it seeks to end these practices happening. How does it go about that? Is it a case of trying to engage with An Garda Síochána? How can the process be ended? On one level, the Garda is enforcing what it believes to be the law. How do our guests engage with the Garda, therefore, and what do they do to try to reduce the practice?
I have seen it myself and it can be incredibly embarrassing for a person of colour who is an Irish citizen when they get on the bus and look to establish who that person of colour potentially is. I accept and understand where it is coming from but am wondering what we can do to fix, lessen or resolve that?
Ms Una Boyd:
I would like to follow up on the question around the common travel area and then address the question about checks on cross-Border transport. The need for the common travel area to be put on a more statutory footing is something we have been raising consistently for the last few years. The concern is that the common travel area is largely an administrative arrangement and a huge amount of the detail of it was essentially sorted by membership of the European Union. A great deal of the intricate parts were never really put on a statutory footing and were never really dealt with properly. One of the very predictable outcomes of Brexit was that it would expose huge gaps. We have seen very clear commitments to the protection of the common travel area. The Senator referred to the memorandum of understanding and the protocol clearly commits to avoiding a hard Border. Article 3 commits to the continued functioning of the common travel area but without a clear statutory footing, we are already seeing a slow creep of changes to the common travel area which are really concerning. The Home Office, for example, changed its guidance on checks between the Republic of Ireland and Great Britain on 2 September. Without changing any legislation, it has now changed the guidance, which seems to state that people are required to provide identification on those journeys. If that is the case, it is a significant alteration to how the common travel area functions.
We have also seen a slow change in language, in talking about the common travel area as something that only applies to British and Irish citizens, which is not accurate in terms of how it has functioned for many years. It is a check-free zone that many people who are not British or Irish have also utilised and relied on. That is really reflected in the memorandum of understanding, which focuses on the rights of British and Irish citizens.
The electronic travel authorisation system, which Mr. Holder mentioned, which is part of the Nationality and Borders Bill, presents a fundamental change in UK immigration law that will significantly change the functioning of the common travel area. Already, quite early in the process and despite commitments, we are seeing changes, most of which are detrimental. If the common travel area had a statutory basis, we would have legislative clarity, which would make it easier to prevent these slow changes, like the Home Office changes which are not based on legislative change.
I also want to mention the common travel area forum. A huge amount is going on in that forum. We requested the minutes and papers and got heavily redacted papers back which showed that both states are clearly very reluctant to show what is happening in that forum. Obviously, that is where these decisions are being made. We would argue that there must be a much stronger statutory footing for the common travel area.
Regarding checks on buses, we have a significant amount of evidence on how often these checks are happening, mostly thanks to collaboration with an organisation called End Deportations Belfast, which has an online reporting tool which allows anyone who witnesses a check to log where it happened and what happened. That organisation has kindly provided us with that information. We saw a massive drop in the number of checks, which we hoped was because the policy was being examined or changed but unfortunately, we now think it was just due to Covid. The fact that people were not travelling as much meant that, naturally, the number of checks fell. They have started to increase again and we are also seeing a change whereby checks have started to occur at Dublin Airport among people getting on buses at the airport that are bound for Belfast. That is new.
In terms of actions that can be taken, this is set out in-----
Ms Una Boyd:
In terms of the requests regarding the cross-Border checks, they are set out in the document produced with the North West Migrants Forum. The issue here is that the manner in which the Immigration Act 2004 is written inherently leads to racism and discrimination. As Mr. Holder said, there is no way that members of the Garda can get on a bus and exercise their powers under that legislation without making some sort of assumption or decision on who is exempt, who is not an EU citizen, who is not British or Irish. The legislation itself needs reform to prevent this continuing but in the interim, this is a practice being carried out by An Garda Síochána. We would like it to agree to stop this practice.
We have never had sight of any of the training, policy or guidance that is given to members of the Garda carrying out these checks in terms of how they are supposed to carry them out without racism or discrimination coming up.
Has there been any engagement with the Garda about that? What Ms Boyd is saying is perfectly legitimate and she is absolutely correct in pointing out what has to be done to try to solve it but if we were to raise this with a member of An Garda Síochána today, what would that member say in response? What is An Garda Síochána saying about it? Has it given any indication of the type of training and procedures involved or is the case that CAJ cannot get anything from An Garda Síochána on this matter?
Ms Una Boyd:
We did a joint body of work with the Irish Council for Civil Liberties on this during which we engaged with the Garda. The response was essentially to say that the checks focus on trafficking. They argued that they were intelligence-led checks, which is also what the UK Home Office likes to call them. There was not really any engagement on the actual impact of the checks on people or on the reports we have of racist and discriminatory behaviour. We have never had any documents or information provided on how the Garda trains its officers to deal with this. One response we got was that the Garda asks everyone to show their passport and that if British and Irish citizens feel that they are being checked unlawfully, they can show their passport. Essentially, the argument was that people can show their passport to prove that they do not need to show their passport, which was a really disappointing response. There may be further engagement that Mr. Holder would like to mention but there has been very little back from the Garda about how it sees this being reformed.
Mr. Daniel Holder:
The response from the Garda Commissioner that this might have something to do with trafficking, to be fair, was a bit of an off-the-cuff response because that is clearly not the case. These are clearly routine immigration controls being conducted on the land Border. The Garda could be asked to cease these in the interim but ultimately, as Ms Boyd says, a fairly simple amendment to the 2004 Immigration Act, at section 11 and other relevant sections, would knock this out. The legislation is inherently discriminatory as it stands.
Turning to the legacy issues, the issue of potential inter-state cases is probably the primary vehicle but I would not want to guess the timeframe on this, with everything that Strasbourg has to deal with. There would also be issues around the extent to which domestic remedies would have to be exhausted and indeed, whether the UK continues to incorporate the ECHR which, as we mentioned earlier, is under quite considerable threat. It would be a much swifter and more powerful process for the Government to intervene rather than for it to be left to individual victims and their own particular circumstances to litigate on the implications of a UK legacy Bill.
The other areas are the UN structures, especially the UN Human Rights Council. Two UN special rapporteurs have already delivered reports to the Human Rights Council stating what is in the command paper constitutes a flagrant breach of the UK's international obligations. Ireland is not on the council but I-----
I have to move on the next group. The theme is obviously current for everybody so perhaps it will be picked up by other questioners. It is very informative. Mr. Finucane will start for Sinn Féin. The slot is for 20 minutes.
Mr. John Finucane:
I thank Mr. Holder and Ms Boyd for the work they are doing, especially that outlined in the opening statement. We could probably designate an entire committee hearing to just one of the issues touched on in the statement. I appreciate a lot is packed in there.
I will pick up where Mr. Holder was stopped in the context of legacy. Some of the issues have been answered. The committee has received evidence and testimony from a wide range of individuals and groups over the past year since the British Secretary of State published the Government's command paper on dealing with legacy. We are yet to see the legislation that will follow. My question is about advancing and developing more, if the legislation reflects what is in the command paper, which is shutting down investigative avenues for families. Will the representatives talk a little more about the options open to an Irish Government? They talked about an inter-state case being a primary vehicle and UN structures just before Mr. Holder stopped speaking. Will they focus on that again? What role can this committee play in lobbying the Irish Government to take such an action in the event that the legislation reflects the command paper? To Mr. Holder's knowledge, would any such challenge have the effect of staying such legislation until the particular vehicle of challenge is exhausted? For example, if the legislation is published and stayed for a period due to a challenge, would it allow families to continue to utilise the coronial system, judicial review, civil cases, the Police Ombudsman for Northern Ireland, PONI, and, in a very small number of cases, our criminal justice system?
Mr. Daniel Holder:
Ever since the command paper, the way the UK has gone about developing its proposals, which it argues are not its final proposals, has been entirely in secret. No one has had sight, outside of UK Government departments, of what changes, if any, will be made to the system. There certainly does not seem to be any departure from the framework set out in the command paper
I mentioned the Council of Europe but I will elaborate a little more on UN mechanisms. What is in the command paper on legacy is awful for the North, as it is for victims of the conflict and others. There is also the risk of recurrence. The whole point of proper transitional justice processes and accountability for what happened in the past is truth and justice but also that third limb of accountability to prevent patterns of human rights violations recurring. If the UK proceeds with this legacy Bill, one of the problems is the impact will be felt way beyond these islands. We have already heard, in one of the seminars organised by Ulster University, the former UN special rapporteur, Pablo de Greiff, saying something along the lines that every third-rate dictatorship would be pretty much licking its lips at the precedent that would be set by this legacy Bill. There is a serious risk, given the UK is a permanent member of the Security Council, that the UK's proposals will end up being replicated in other parts of the world and justified. The UK puts itself forward as a leading democracy. There will be other countries that will seek to emulate what is in the command paper, in addition to the amnesty proposals, so it is extremely risky.
It is a subject that could be picked up by the United Nations Human Rights Council. The UK is up for the universal periodic review process in October of this year. We will be making submissions to that next month. Other member states, including those the State could engage with, will be on that human rights committee. It is another forum where the UK could be held to account. There are other forums, such as the Parliamentary Assembly of the Council of Europe, that could be brought to bear regarding these proposals. There are international mechanisms out there.
On the transitional issues, given the UK does not have a written constitution and has parliamentary sovereignty and so on, it is always more difficult to see the extent to which courts would order a stay on the commencement of parts of the legacy Bill when it is found not to be convention-compatible. One of the alarming parts about the command paper is it has an almost instant cut-off of all existing mechanisms. Even if call-in mechanism operations, such as the work of Jon Boutcher on Operation Kenova, the work of the inquest system and the work of the Police Ombudsman, were at a very late stage of almost producing reports or pronouncing judgments they would, unfortunately, just be guillotined almost instantly, if the legislation was brought in in the manner envisaged by the command paper.
Mr. John Finucane:
I appreciate that. I agree it is all slightly speculative but there have not been any words from the British Government or any of its representatives to indicate they are pulling back. The secrecy with which they went about their consultation, for want of a better word, is a problem that has been identified by all parties and by the Irish Government. We are now very much in a period where we need to focus on what can be done rather than just criticising.
I have a couple of questions for Ms Boyd. I appreciate that time is limited. I again thank her for the work on this area. It is perhaps not getting the recognition and attention it deserves. We are living in a time when we are fighting to get attention on many different issues, but this is something that requires the attention of this committee and parties in general. Ms Boyd spoke about the current legislation going through Britain, namely, the Nationality and Borders Bill, and how the introduction of electronic travel authorisations, ETAs, raises the threat and likelihood of a hard border on the island for a significant section of our population. I find it quite technical as I am not an immigration expert by any means. I thank the CAJ and the North West Migrants Forum for the work they have done, and will continue to do, on this. Will Ms Boyd expand on who exactly will be caught by this legislation? What are the practical implications for those people and for society in the context of tourism, business and the right to family and private life?
Ms Una Boyd:
On who the electronic travel authorisation system will impact, the current situation is that anyone who is what is called a "non-visa national" can enter the UK as a visitor without having to apply in advance for permission. Since Brexit, that includes EU citizens and nationalities such as Americans, Brazilians, Canadians and Australians. In essence, people from a non-visa background, when they cross the Border into Northern Ireland, are used to not needing to apply for permission in advance. There are no restrictions on those people entering Northern Ireland as visitors. That has been in place for a long time.
Two groups will be affected by ETAs. The first are those people who have been living in Border areas in the Republic of Ireland, which this system has allowed to live a very fluid cross-Border life. If they need to pop into the nearest shop in Northern Ireland, if they have family who live in Northern Ireland or if they have someone they are caring for, they have never had to apply in advance in order to make those journeys. A non-visa national is entering as a visitor. It means that person is restricted in what he or she is allowed to do when he or she is in the UK.
First of all, it is time-limited, usually to six months. Only permitted activities are allowed. Most people apply for a visitor visa at some point. It essentially means that one can do such things as visit family, tourist activities, go to see the Titanic museum, go shopping and access services. There are also permitted work engagements under the UK visitor visa, which include things like meetings, training, interviews and so on. It covers a huge range of activities. Most people residing in Border areas will go up and down in a day, so the time limit has never really affected them. These are the people who would be caught. We are not necessarily talking about people who want to work in Northern Ireland. They will need permission to work in the UK. That may be through a frontier worker visa or they may need to apply for another UK work visa. These are people doing ordinary, daily life activities. The practical implications for people residing in the Border areas are huge.
There has been a push to promote all-island tourism. People who fly into Dublin, especially Americans, Canadians and Australians, who represent a substantial number of tourists here, are used to being able to travel freely over the Border without checks. This has been raised with the UK Government. The Irish Government has raised it directly. Both Stephen Farry and Baroness Margaret Ritchie raised it in the House of Commons and House of Lords. The UK Government's response has essentially been to say that people will get used to it and also that there has always been a requirement to have the correct visa. I do not think it is engaging with the fact that this is a fundamental change to the UK immigration system that will completely change a way of life for people here.
Mr. John Finucane:
I want to address a point from the opening statement and what Ms Boyd said in her previous answers about compatibility with the protocol, particularly with regard to Articles 1 to 3, inclusive. Will she go into more detail on this? This is something quite fundamental. It goes to the heart of the British Government's bona fides with regard to adherence to the agreement that it entered into with the European Union, if it legislates in a way that is fundamentally against the first sentence of the protocol, which is that the Good Friday Agreement is sacrosanct and to be protected. The glib response that people will get used to it should not be that surprising from the current British Government. Ms Boyd said the Irish Government and parties in Westminster have raised it. At what level has the Irish Government raised it? What more can it do? What can we do as a committee? We are here as a committee to ensure that the Good Friday Agreement is respected, protected and implemented. What can we do? Correct me if I am wrong, but I see this as striking at the heart of the protocol and what it was designed to achieve, that is, having no hard border on the island of Ireland.
Mr. Daniel Holder:
Mr. Finucane is entirely right. Articles 1, 2 and 3 of the protocol are involved. One does not need to go further than the first three articles. Article 1 of the protocol sets out its purpose, which is expressly to avoid a hard border on this island. It is also to maintain the conditions for North-South co-operation. EU citizens in Donegal or other Border communities are used to living a cross-Border life, perhaps taking their kids to parties after school with their school friends across the Border, they will suddenly be told that they are crossing a line. If they do not have an electronic travel authorisation, or if they had one but it expired and they forgot about it, they could be facing up to four years in prison for having crossed the Border. If that is not a hard border, I do not know what is. It clearly falls within the definition of a hard border that any good faith interpretation of the protocol would provide. UK ministers, debating the bills, claim that this is not a hard border. The other parties to the agreement, which are the Irish Government and the EU, need to stick to the interpretation that this clearly constitutes a hard border and a breach of the protocol.
Article 3 of the protocol is the one that deals with the movement of people. Many of the other ways to avoid a hard border relate to trade and are dealt with by numerous other articles in the protocol. Article 3 defers to the two Governments bilaterally, rather than to the EU and the UK, to make arrangements under the auspices of the common travel area. That must surely be read compatibly with the purposes of the protocol, which are to avoid a hard border. That is one area where the UK is clearly in breach of its commitments.
Article 2's commitments are interesting in that this makes some of the rights of the Good Friday Agreement justiciable and enforceable in the courts for the first time. Under Article 2, the UK is legally bound to ensure there is no diminution in certain listed Good Friday Agreement rights as a result of Brexit. I would have liked that commitment to go further. If the UK diminishes the same rights for other reasons, such as the incorporation of the European Convention on Human Rights, it hollows out the commitment not to do so for reasons relating to Brexit. That includes rights to equality of opportunity and economic activity and rights to choose one's place of residence. We have looked at a number of areas where the UK has diminished rights of non-Irish EU citizens. Those include the right to vote for people who arrived after Brexit and the right to work in certain civil service occupations.
This Article 3 commitment is also relevant where the rights to socioeconomic activity and to reside on one side of the Border but to live a fluid life on both sides are clearly diminished by this new system and hard border that will be brought in by electronic travel authorisations. It is certainly not good enough for the UK to tell people not to get caught and that it does not do passport checks on the Border. We know that it does plenty of in-country immigration checks. If anyone comes into contact with law enforcement over the Border, for example in a car accident, what happens? Is people's insurance valid if they drive over the Border and have irregular status because they did not realise that they need an electronic travel authorisation, even on a road that crosses both sides of the Border?
It would be welcome if this committee could make representations to the Government and internationally about breaches of the protocol with regard to the freedom of movement of people because of these arrangements in the Nationality and Borders Bill in the UK.
Mr. John Finucane:
I am conscious that I only have a few minutes left. What would the request be, specifically, if the committee agrees to make representations? To repeat what I said earlier, this is a fundamental attack on the Good Friday Agreement and it shows a clear commitment to renege on the protocol. What exactly could the Irish Government, individually or as a member state, do to apply pressure to the British Government on this issue?
If gardaí are doing checks on the land border, maybe the committee should request their statistics about outcomes from such checks, how many they have done, if they record them, and what issues relating to trafficking may have arisen. Would that be a reasonable question to ask?
Ms Una Boyd:
I have a brief point, because I am conscious of the time. A huge amount of the response of the UK Government to this has been to suggest one should not worry because it will not have an impact on British and Irish citizens. That is a real failure of understanding that we care about more people in our community than just the British and Irish citizens. More people in our communities use the Border and live cross-Border lives than just the British and Irish citizens. Perhaps that is something on which the Irish Government can take a stronger stance in representing people who are visiting and living in their jurisdiction. It is not good enough to just say that British and Irish citizens do not need ETAs, because it affects more than just them.
Senator Blaney has other commitments and I believe Senator McGreehan will be joining us. I apologise that I missed the start of the contributions by Mr. Holder and Ms Boyd, because I was at another meeting. I very much welcome their contributions. The opening statements and the responses to questions from colleagues have been very enlightening.
This again goes back to the many times that we have discussed the non-implementation of some important aspects of the Good Friday Agreement. We are seeing the British Government attempt to tear up a very important part of the Stormont House Agreement with its proposal to introduce an amnesty for people who committed heinous crimes, such as leading members of state forces and paramilitary organisations. It is deplorable that any government would put forward a suggestion to cut off all investigations. This would ensure that there was no possibility of people getting the truth about who committed those crimes or of ever getting justice for their loved ones. It is an awful concept that a government in a civilised world would introduce such a measure.
We had a debate yesterday evening. The Cathaoirleach and I, together with many other members of the committee, participated in it. It dealt with legacy issues and with the recent Police Ombudsman of Northern Ireland’s report. Three weeks prior to that, we had debates in the immediate aftermath of the 50th anniversary of Bloody Sunday in Derry. We also had statements where we reflected on the need to ensure that legacy issues are dealt with and that the important work on reconciliation and getting to the truth is prioritised. We all know that as time goes on, it will be more and more difficult to get through the majority of some of those heinous crimes and those awful events that happened on our island during that era.
It is unfortunate that a bill of rights not been introduced. The witnesses made that point very well. If we had the implementation of the Stormont House Agreement and New Decade, New Approach, allied to the fundamental implementation of the Good Friday Agreement, the issues the CAJ amplified so well would not be of concern to us today.
They make the point that the bill of rights would have prevented regressive actions of the British Government, including the current British Government paper on legacy. That is true and highlights the value and importance of a bill of rights. Apart from the contributions of the CAJ here today, I was informed on the importance of these issues when I met the North West Migrants Forum some months ago. I, together with a number of other Fianna Fáil colleagues, met the group, which gave us an excellent presentation on the day-to-day issues.
In this Oireachtas, in plenary session, in the Dáil, in the Seanad and at every committee of this House, we have discussed for years the need to avoid a hard border on the island of Ireland in the context of Brexit. A huge effort was made by the political system, by the Government and by the Opposition at the time, as well as by all interested parties. We met various parliamentary groups from other member states of the European Union. We also met many committees of the House of Commons and of the House of Lords. All the time, there was a clear message that we need to avoid a hard Border on this island and that we need to ensure that we could go about our business as we have done in recent years. We talked with the North West Migrants Forum about how these new proposals by the British were in conflict with all of us and with successive Governments in respect of promoting more cross-Border co-operation in health, education and tourism.
I was reared in and live in a Border community. I have had the privilege of representing Cavan-Monaghan in the Oireachtas for 30 years. I have seen first-hand the huge change in how we go about our daily lives in the Border counties, as many other colleagues on this committee have also witnessed over the years. Yet, we never thought that we would be going back to where there could be a hindrance or an obstacle put in the way of people crossing the Border - be it for education, accessing health services, going about social activity, playing sports, going for a day out or going to visit a family member. It is not acceptable. It is not what we want in this country in this day and age. On that day when I met the North West Migrants Forum, we just talked, for instance, about how paediatric cardiac care is provided in Crumlin children’s hospital for all of our island. We know that the services that are provided by Altnagelvin hospital are so important for Donegal. In my own constituency, some health services are accessed by people from Cavan-Monaghan in hospitals in Northern Ireland and vice versa.
It was only three weeks ago that representatives of Cooperation and Working Together, CAWT, appeared before the committee. We met officials from the Northern Ireland health service and from the HSE here about us intensifying co-operation in the delivery of health services. If we are going to exclude an important part of our community, namely, people who are not Irish or British citizens but who are contributing to our society, who have integrated and who have enhanced our society in every respect or if we are going to have them treated differently, hat is not acceptable to any of us. It is an issue that, as John Finucane MP said, has not been given the attention it needs in the political system or in the wider public. I commend the witnesses on their work.
Could I ask, as Senator McGahon did with regard to the cases that had been reported to the CAJ, in general has it been people going from a port or an airport who have been asked for identity or have been stopped by members of An Garda Síochána or members of the PSNI? Are we aware of cases involving, for example, a family where a child is attending school on a different side of the Border than where they are resident or of people going to access health services or about their daily business? I am thinking about those who have been living here for some time, who may have settled here, who are working and who are contributing to society. One member of the household may be working in this State, while another member of the same household might be working in Northern Ireland, or vice versa. I am thinking of this in regards to the provision of and access to services.
I commend Mr. Holder and Ms Boyd on their work. I also take the opportunity once again to commend the work of the North West Migrants Forum. Have our guests come across instances of people who have been living here for some time and who have been asked to produce identification or whatever? I would see that as being reprehensible and as going against everything that has been fought for and worked extremely hard for by many people for decades to achieve. It is going in the opposite direction of the benefits from the Good Friday Agreement, the Stormont House Agreement and New Decade, New Approach.
Before our guests answer, if any other members of the Deputy’s party present and who wish to contribute, in whatever order, there are 11 or 12 minutes left in the slot. I want to make sure everybody is aware of that.
Mr. Daniel Holder:
We have also been impressed by the work of the North West Migrants Forum. Our focus at CAJ tends always to be on the policy, the legislation and what can be changed. We know what the issues are, but it is powerful to hear some of the human stories of how it affects people's daily lives, how it splits families up and so forth. Ms Boyd might wish to elaborate, but the short answer is that we do know persons who are in the circumstances the Deputy outlined. I have come across Irish citizens who live in the north west but who will not get buses down to Dublin because of the indignity of being singled out because of their skin colour and being expected to show a passport that they have no reason, by law, to be carrying by virtue of being Irish citizens. Instead they either get a bus down to Sligo or drive down or avoid making that journey because they are singled out.
For all the talk about hard borders and the need to avoid a hard border with Brexit, the Deputy hit the nail on the head - there is an existing hard border for some groups of citizens. Partly, it is through these passport checks. The way we see it is that one either has passport checks on a border or one does not. Nobody wants blanket passport checks on the Border here. That would constitute a hard border. However, this halfway house of having legislation that expects some people to carry passports, and not others, and the inevitable racial discrimination that this leads to is quite shocking. It affects British and Irish citizens who are perceived not to be British or Irish citizens on the basis of skin colour. While there is a lot the UK could do in terms of not proceeding with this, it is unilaterally within the gift of the Irish Government and the Oireachtas to end it through a simple amendment to the Immigration Acts.
There is also the issue of somebody who is essentially a visa national, that is, somebody who is lawfully resident and, as the Deputy described, has lived for years in Derry, Dungannon, Newry or somewhere else and who simply cannot cross the Border without going through the very expensive and complex process of visa acquisition. That is very much within the gift of the authorities here to change with a proposal or something that would essentially allow persons in that situation, lawfully resident in the North either permanently or temporarily, to cross the Border as visitors without needing to require advance permission. That is not going the full step of full free movement to work and so forth, but merely a condition that would be brought in to allow people to cross the Border as part of their daily lives, for example, the family who live in Derry and want to visit a beach in Donegal but who currently cannot or some members of the family cannot do so, or they cannot go to a child's birthday party on the other side. That appears to be a very simple thing. It is not even an immigration issue in the sense that we are talking about people who are already here on this island. Ms Boyd might wish to elaborate on that.
We have come across the situation where, in terms of recent anecdotal reports, gardaí got on buses outside Dublin Airport and asked passengers for passports. Given that whoever got off the aeroplane has already been through immigration control, that is quite clearly An Garda Síochána implementing British immigration controls in the State because it is targeting people who it believes will be travelling on to the North. That is essentially implementing the UK's hostile environment policies, which is an extremely worrying development. The PSNI, thankfully, does not have an immigration-specific portfolio and remit in the North. The Home Office Border Force and immigration enforcement officers have engaged in this activity. As well as this being a North-South issue it is also a east-west problem, with Home Office immigration officers stopping people on domestic journeys at ports and borders in the North, quite often on the basis of skin colour or other ethnic attributes, and expecting people to display passports and the like.
On that point, the Department of Justice has published reports on trafficking of human beings in Ireland. We should hear what it has to say, articulate the arguments and examine your charge that it is motivated by colour. If that is true, it is appalling and unacceptable. Obviously, it is a very serious charge. In fairness to everybody, and I know I am taking Deputy Brendan Smith's time, perhaps the committee should ask representatives of the Department of Justice to appear before it to debate this issue and clarify it. On the one hand, what you are saying, Mr. Holder, is what you believe to be true. On the other hand, I cannot believe the State agencies are being racist or profiling people on the basis of colour. I am not suggesting you are saying that, but that is the implication. You are right about people travelling between the North and South. Once they are in the State there should be no impediment to that. I am sorry to intervene, Deputy. Ms Boyd might wish to say something as well.
That is grand, a Chathaoirligh. I concur with you in regard to hearing from the Department of Justice officials. What Mr. Holder and Ms Boyd have outlined is very concerning from all points of view. We live in the communities where these people, thankfully, go about freely North and South in their everyday business. My understanding is that the UK's Nationality and Borders Bill is due before the House of Lords for completion by the end of this month. If that is passed, it would lead to further amendments to the British Immigration Act, if I am correct. Have the witnesses had any update from Westminster regarding how likely that Bill is to pass the House of Lords or if it is likely to get through the House of Commons? To their knowledge, what is the situation with regard to that legislation?
Mr. Daniel Holder:
The Bill is in the House of Lords. Amendments have been tabled by Margaret Ritchie and others to try to knock out the electronic travel authorisation, ETA, system applying to the land border, and I assume that will be subject to a vote. It is at a fairly late stage. If it does pass through Westminster, the mechanism will not be introduced immediately. There is a possibility it might be defeated in the second chamber, but we have to see. If not, it will be brought in over a number of years.
To add to the issue of racial profiling and so forth, our perspective is quite clear. The United Nations anti-racism committee has recorded some concerns about racial profiling in Garda operations. To go back to the community level, and to be openly clear about what we are saying, it is very much the lived experience of people of colour in Border communities that this is the basis on which they are singled out and on which they are assumed not to be British or Irish citizens and therefore required to produce a passport on the cross-Border buses. It is an inevitable consequence of legislation that differentiates different groups of people as to whether they are or are not required to carry and produce passports on those cross-Border journeys.
We should invite representatives of the Garda Síochána and the Department of Justice, if that is agreed. I accept the bona fides of your beliefs. That is the information you have been given.
There are still three minutes left. Does Deputy Brendan Smith wish to speak again?
Does the Committee on the Administration of Justice have regular engagement at political or official level with our Department of Foreign Affairs, our Department of Justice or any other statutory agency here in regard to these issues and what the committee is hearing from people who are affected by these measures being implemented? Is there any forum where all stakeholders meet, discuss these issues and try to get a proper resolution to them?
Mr. Daniel Holder:
We have met and engaged with Department of Foreign Affairs officials, both those based in Dublin and those based in the secretariat, on this and a range of other issues. Together with the North West Migrants Forum we engaged with officials in the Department of the Taoiseach on these specific issues. Getting to the Department of Justice has been much more difficult and the proposal before the committee to engage with the Department of Justice on that issue is welcome.
Dr. Stephen Farry:
I welcome Mr. Holder and Ms Boyd. Most the things about the ETA issue have probably been said. I will make a few points to which Mr. Holder or Ms Boyd may wish to respond. I have been assured by the Department of Foreign Affairs that it is very much seized of this issue and that it is a priority for it. I think representations have been made to the Home Office. It is still a work in progress. I fear the Bill will go through Parliament. The House of Lords is largely a revising chamber. It is very difficult for it to overturn and defeat legislation. As for the amendments, we expect the Bill to come back to the House of Commons sometime in March and we will keep pushing in that regard. It remains to be seen whether Margaret Ritchie's re-tabling of the amendment will get through on Report Stage in the House of Lords, but that will probably be the trigger for any pushback in the House of Commons. I suspect, however, that with an easy majority, the Conservative Party will ram the Bill through and maybe ping-pong with the House of Lords for a few sessions but, ultimately, push ahead with this.
If I may add to the potential implications of this one additional implication that has been drawn to my attention in respect of healthcare, if we end up with some good cross-Border collaboration on healthcare allocation, we could see ambulances from Northern Ireland picking up people in southern Ireland and taking them to hospitals in Northern Ireland because they are the closest available. Those patients will have no opportunity whatsoever to apply for any ETA in that regard, given their situation. That is just one more aspect to add to this.
I also wish to ask about the common travel area. Concerns have been raised by, I think, the committee and the Northern Ireland Human Rights Commission about the fact that the CTA is still essentially a mix of some legislation but largely conventions held by the two Governments. We have the revised memorandum of understanding but do the witnesses think there is a case for putting the CTA on a formal treaty basis between the UK and Ireland, properly embedding the rights contained therein and providing people with much greater surety in that regard?
Finally, regarding the legacy issue, do the witnesses have any comment as to what may be holding up the current Bill? Not that we are in any rush to see bad legislation come forward. There is the practical issue that we are expecting a Queen's speech in the House of Commons soon and a new session of Parliament. There seems to be some tension within the UK Government on the issue of compelling people to co-operate with any so-called truth recovery body put in place. I appreciate that that falls far short of Article 2 compliance, but do the witnesses have any comment to make on that controversy in its very limited sense?
Mr. Daniel Holder:
I will start with the legacy issues and then move on to the common travel area.
The amount of secrecy over what is going on with the legacy Bill is very unorthodox. The Equality Commission for Northern Ireland has already found that the Northern Ireland Office, NIO, has breached its equality scheme because of the way it handled the initial written ministerial statement and has not produced its equality impact assessment. There has been no proper public consultation at all on what is going on, which has happened behind closed doors. Our main source of information on this is what seems to be periodically leaked to certain UK newspapers, particularly The Daily Telegraph. The issue Dr. Farry has raised seems to be a disagreement between the Northern Ireland Office and the Ministry of Defence, MOD, about introducing some level of compellability. Let us be clear that the legacy body that has been proposed is the most toothless type of legacy body, with much fewer powers than what was proposed in the Stormont House Agreement or the existing legacy bodies as part of the package of measures. It seems the NIO was for imposing fines for non-co-operation. It seems the MOD was somehow saying that that would be unfair on British soldiers because if they refused to co-operate they would get fines but republicans could just move to the Republic and would therefore be out of the reach of fines. That seemed a very odd position for a UK Government department to take because, obviously, its soldiers would not be fined if they just co-operated with the legacy body rather than refusing to co-operate with it. Also, it seemed a little odd to suggest that it was very easy for anyone questioned as a non-state actor just to somehow move house to get out of receiving a fine. That seemed a very strange position. The MOD was potentially talking about a different model of making the amnesty conditional, but there is no clarity as to what the detail of that was. We all know that all these discussions about powers of compellability were held for years during the development of the package that became the Stormont House Agreement. All the answers to what proper powers the body should have and what levels of immunity could be granted are within the two institutions that were developed, namely, the historical investigations unit, which would have full police powers, and the independent commission for information retrieval, which would protect immunity for protected statements but without an amnesty attached. The solutions to these problems, therefore, are to go back to what was negotiated and agreed before the UK walked away from that.
As for the common travel area, we have taken a position that there should certainly be a treaty. We are very much supportive of the human rights commissions' assessment of and model for this. We are aware of the memorandum of understanding that was drafted. Bits of it have found their way into a legally binding framework on social security. One of the problems with that is that the post-Brexit direction of travel is to restrict the reciprocal elements of the common travel area that were never really part of the common travel area but have now been put as such just for British and Irish citizens. As that will create its own problems, this needs to be something that accounts for the whole population.
The healthcare issue Dr. Farry quite rightly raised is also an existing problem for visa nationals. Obviously, I do not want to go into individual cases but they do exist. I refer to the existing North-South, cross-Border arrangements on children's heart services, the North West Cancer Centre and so on, whereby people or family members have not been able to travel or to avail of those services urgently because of visa requirements. That is very much an existing problem.
I thank Mr. Holder. A lot of what I had intended to ask him and Ms Boyd has been asked and addressed already, so I will not rehearse those issues. It was important that the very first contribution from Senator Currie referred to the failure of the British Government and certain parties to implement agreements. There are also issues of concern regarding the Irish Government and its commitment to agreements. Even as early as a few months ago this committee engaged with representatives of former political prisoners who have concerns about employment opportunities in this jurisdiction and about discrimination as a result.
We know the Good Friday Agreement calls for the full reintegration of those with political convictions. We have heard overt public statements from senior figures in the Government up to the Taoiseach referring to provisions of the Good Friday Agreement as being divisive and contentious. I refer specifically the provision for a border poll. Across the board, there are responsibilities to adhere to the spirit, word and letter of the agreement.
Like other colleagues, I have engaged with Ms Boyd and Mr. Holder on the issue of checks on buses before, raised it in the Seanad and, when I was a member of the justice committee, with the Garda Commissioner. I have been on the bus travelling to this institution and have seen examples of some of the concerns expressed by people from ethnic minority backgrounds and by people of colour who are Irish or British citizens and who have been checked. It is something I am alert to. The Chair's suggestion that we engage with the Department and Minister for Justice was a helpful one. Because of the cross-cutting issue of the ETA and the travel waiver, we need to go broader than that. There are immigration and policing issues, as well as issues regarding health and education, as Dr. Farry noted, including further and higher education, for students travelling north and south.
There are more general issues for the Department of Foreign Affairs, as outlined by Mr. Holder and Ms Boyd. We have a bit of work to do as a committee. This goes to the heart of the Good Friday Agreement, stability and peace on the island and all the issues raised concerning the protocol and the common travel area. I would hate to see it left, because of the cross-cutting nature of it, to us alone when there are responsibilities for Departments to be alert to this and work to address it. The committee should engage with the British Home Secretary, Priti Patel, and contact her to express our concerns. We should invite other Ministers and other committees. It is important that the relevant joint committees and their members are alert to this issue. I will go away and work on this but I think there would probably be support and agreement across parties if, now we are reopening and able to avail of the audiovisual room, we on a cross-party basis invite the CAJ, the Irish Council for Civil Liberties and other organisations to come into the Oireachtas to present to a broader audience, hopefully, on this issue.
Senator Currie and I, along with other colleagues, will attend the British-Irish Parliamentary Assembly, BIPA, on Monday. The time has passed for us to table issues to be debated at that but we will raise the issue with colleagues from the House of Lords, the House of Commons and political parties across Britain and beyond.
The Minister for Justice, Deputy McEntee, recently met the British Home Secretary. The Minister for Foreign Affairs, Deputy Coveney, told me in the Seanad that this issue had been raised but that was really it. I am concerned that this is not on the radar of the Government in the way it should be. There is substantial work for us to do as a committee, as parties and as individual parliamentarians. Is there anything beyond what the witnesses have suggested that they think we should do? Those are my suggestions that I offer up.
I raised the issue in September 2019 with the Garda Commissioner. Similar to the witnesses, I had difficulty getting any detail around it. In the course of a Commencement matter debate I had in the Seanad with the then Minister for Justice and Equality, Deputy Flanagan, no statistics were available in the immediate run-up to the referendum on Brexit or post Brexit. I have a concern that this is not being monitored in the way it should. It is vital that we pursue those statistics and scrutinise them in the way the Chair suggested.
I thank the witnesses for their presentations and the papers they submitted beforehand. They were interesting. Often when we talk in the Oireachtas about the bill of rights, it is an abstract thing but in the CAJ submission, they made it real. I ask them to tease it out a bit more in order that people realise what is denied to people because the bill of rights is not implemented. How important is a bill of rights in a society coming out of conflict?
Mr. Holder referred to the "opponents of equality". It is staggering that anybody would oppose an anti-poverty strategy. We got rid of the Combat Poverty Agency here, which was a disastrous mistake, if it was a mistake. An anti-poverty strategy is so important for the people that the political parties across the board propose to represent. It is important to see who the opponents are. Are they just one political party or are there more opponents than that?
Mr. Holder also said the anti-poverty strategy was reneged on by the UK Government. What about the Irish Government as co-guarantors of the Good Friday Agreement and subsequent agreements? He made valuable suggestions about what the committee can do and I would like to give him an opportunity to give us more concrete guidance on that. He rightly outlined what the bill of rights could have prevented but will he give us a picture of that in terms of housing and other everyday issues that confront people in the North? Who appoints the panel of experts that needs to be appointed? Why can it not be appointed? These are probably obvious questions to my colleagues in the North but for people listening here it is worthwhile teasing them out.
Mr. Daniel Holder:
The opponents of equality can be different people at different times and on different issues. We have learned during this process to almost speak in code and not call different people out. Sometimes it is a source of immense frustration for most of the political parties in the North when they get blamed for something that is largely being done by one party. There is no secret that it is the DUP that has used the St. Andrews Agreement veto and the agenda veto to block, left, right and centre, provisions that were agreed to as part of the peace settlement, albeit the DUP-----
Mr. Daniel Holder:
It seems to be ideological. To use the Deputy's example of the anti-poverty strategy, four of the five parties in the Northern Ireland Executive to various levels welcomed the judicial review that found it acted unlawfully in not adopting it. Only the DUP opposed it. In the engagements we had on that, the objection of the DUP seemed to be that the anti-poverty strategy is specified in the St. Andrews Agreement and the legislation as a strategy to tackle poverty on the basis of objective need. There is far more objective need among the Catholic nationalist community, where levels of poverty are far higher than among the Protestant unionist community by whichever measure one wishes to take. Area-based measures may involve more resources rightly going to people on the basis of objective need.
If we want to instead have a system where resources are allocated on the basis of clientelism or sectarian parity, then a system rightly focusing on objective need is not one people will subscribe to. The objective need issue was the particular barrier in respect of the anti-poverty strategy. It is the Stormont House Agreement the UK has reneged on rather than the anti-poverty strategy.
It is right that we look at the bill of rights as a safeguard over power-sharing in the same way a constitution is in almost every other jurisdiction. The architects of the Good Friday Agreement had objective rights-based safeguards in mind. There are many different models around the world. Some countries have guardian councils that veto laws on the basis of ultra-conservative religious moral views. I do not think that is what the architects of the Good Friday Agreement had in mind. However, that is ultimately what we have ended up with because we have a situation where the St. Andrews veto is used to veto a consultation on same-sex marriage equality, to block provisions relating to women's reproductive rights, and to block minoritised language rights for the Irish-speaking community. We have ended up with a system of political vetoes that amplifies the power of the opponents of equality in the sense that even with a majority on the Executive and in the Assembly, and a legal obligation in the case of the anti-poverty strategy, a particular commitment cannot be got over the line.
The bill of rights was meant to constrain power. We have given evidence to the bill of rights committee where we went into some detail about things that could have been prevented. One obvious example is the Líofa decision, which was instrumental in the collapse of Stormont. That collapse was not just about the renewable heat incentive scheme, but a much broader pattern of non-implementation and obstruction of rights-based commitments. There is no freestanding right at present to non-discrimination on the basis of language anywhere outside where it is parasitic to ECHR rights through the Human Rights Act, but a case would have been pretty straightforward on the grounds that a bill of rights would have a freestanding right to non-discrimination against Irish speakers. It would have been pretty easy to challenge that decision. The gay blood ban introduced by a DUP Minister is another example. Again, there were attempts to judicially review that, but a bill of rights being in place would have made that type of policymaking much easier to challenge.
We saw a re-emergence, especially in north Belfast, of patterns of gerrymandering in housing provision. There was one in the Department for Social Development, again, under a DUP Minister. There were particular projects, such as Building Successful Communities, a resourcing project, in which the criteria for where new houses would be built seemed a little odd. It did not include objective housing need, which is what you would expect things to be based on. It included areas with a high number of vacant properties or areas that were in proximity to areas of housing need, i.e. on the other side of the peace line. At the same time, there were objections to houses being built in particular areas on the grounds there had to be community consensus before houses were built. This was in the context of "you can't build houses there because Catholics will live in them", which is where much higher objective housing need is, and until there is community consensus.
In the anti-racism context, imagine if the most objective needs for housing somewhere in England are among an ethnic minority population, yet there are objections to housing being built on the basis of objective need and an idea that those houses cannot be built until white people agree. That kind of thing, and we have documented this, was happening. That would never have got past the right to housing in a bill of rights, which is not about the myth of the state having to provide every single person with a house. That is not it. It is about preventing extreme actions by Ministers and extreme legislative acts that interfere with the right to housing. That could not have happened, and could have been easily challenged, if a bill of rights was in place.
Is there a toleration from both Governments, as guarantors of the Good Friday Agreement, of the bill of rights part of that agreement not being implemented? What is available to them? Somebody has to make it happen at some stage.
Mr. Daniel Holder:
The bill of rights is to go through Westminster legislation. That is very important because otherwise it would not bind any Act of the British Government. It is not just Stormont that could breach the bill of rights; it is the British Government. The legacy example is the obvious one. The excuse at present is that the British Government has made up a prerequisite of either all-party or cross-party consensus on a bill of rights. There is, bar the DUP, consensus on a bill of rights across most of the other parties. There is certainly cross-community consensus among Protestants, Catholics, unionists and nationalists. Every poll that has ever been done on a bill of rights has demonstrably shown that, but the UK Government has, in effect, made up a prerequisite that it will not move until there is consensus on the content of a bill of rights. In effect, this hands to opponents of equality a veto over a bill of rights actually being in place.
Of course, that is not contained anywhere in the Good Friday Agreement, which is very clear about the advice on the content of a bill of rights, because everyone knew there was never going to be consensus on that just as there was never going to be consensus on policing reform - it was something that had to be done as part of the settlement. Instead, the advice on what the content is has been deferred to an independent public body. The Northern Ireland Human Rights Commission is to provide the advice on the content of the bill of rights, but that commission finds itself in a difficult position at present. The UN has not renewed its UN status as was expected because, as a national human rights institution, the commission needs to abide by a certain set of rules regarding its powers and independence that have not been met. I should stress this is not because of anything the Human Rights Commission has done but what the Northern Ireland Office has done, particularly in respect of cutting the commission's funding to the extent that it cannot discharge many of its core functions.
Mr. Daniel Holder:
It is very important to counter the UK's line that there somehow needs to be universal consensus on a bill of rights before it is implemented because that is simply contained nowhere in the Good Friday Agreement. It is very important the Irish Government never takes that line and the committee and others make representations to the UK authorities to progress the bill of rights without that prerequisite. The first step is the Human Rights Commission refreshing its advice on what the content should be on the back of the work of the ad hoccommittee in the Northern Ireland Assembly and the new context we find ourselves in as a result of Brexit. Many of the issues we have talked about today, such as freedom of movement and the common travel area, were never envisaged in the original discussions on a bill of rights because with shared EU membership that was a given.
Sure, no problem. By their very nature, rights apply universally. A right cannot be denied. Mr. Holder is saying that a human right cannot be politically obstructed and a government cannot be allowed do that either.
I see Ms Hanna is back. I will make one point, which is only by way of information. When we met ex-prisoners, we got one case relating to a transport company that is a semi-State body. We wrote to the company and the answer we got, in fairness to it, was that it was engaging directly with the people concerned. That is the only complaint we received that I am aware of and it was being dealt with.
If there is an update on that, the committee would be happy to pursue it.
On the other point in regard to the Garda and Mr. Holder's experiences, which he obviously observed, there is no doubt about that. Society is becoming increasingly multicultural. My belief is that An Garda Síochána is committed to fair and equitable policing. Given Mr. Holder's experience, which obviously did happen, it is important that we get spokespersons for the Garda, the Department of Justice and any other appropriate bodies before the committee. To broaden the issue a little, trans-border human trafficking is the issue about which we are concerned. On that point, the Department of Justice has issued its annual report for 2019. I do not now if there is a 2021 report yet. We should put this in a proper and appropriate context. We also need to find out what the policy is in the North as well because the police have expressed concerns about the fact the European Union stops technically at the Border, even though it does not. The problem of back-door entry to the UK through the North is the other issue. It is complex but we will get clear answers to the points Mr. Holder raised.
I wish to make a brief point of information in response to the Chairman. I raised this matter with the Garda Commissioner and the Minister for Justice at the time. The bigger concern for me and, I believe, for organisations such as the CAJ is that it was not even a matter that this was a decision by individual gardaí. I am not necessarily questioning them. The concern is that it was a policy directive coming from on high-----
Anybody in uniform who behaves in a racist manner is not fit to be a member of the organisation. If the police do not absolutely actively discourage that, it is not an efficient, appropriate and modern police force.
Ms Claire Hanna:
I thank the Chair and the witnesses. Even if I had not popped out, the way in which we structure the committee often means the core issues are generally well covered by colleagues. Unfortunately, I had to drop off so I do not want to waste anybody's time by picking up on issues that I am sure have been well explored. Mr. Holder's work is appreciated, in particular on legacy and cross-Border issues, which will potentially worsen with the introduction of the ETA in a couple of years.
To pick up on a different issue, as part of our wide look at the Good Friday Agreement and its operations and roots, the committee will look into the effectiveness of the Stormont institutions, in particular how the Assembly is functioning. Obviously that work might become more urgent if the Assembly is not promptly re-established after the May election. The bill of rights would be a fundamental change that could pre-emptively address many of the issues that get bogged down in the Assembly or would at least provide a pathway. Mr. Holder has also drawn attention to the pre-emptive veto, which has become the new petition of concern, as something that is creating considerable dysfunction and delay by allowing parties - mainly one party, if we are honest - to veto measures that are deemed cross-cutting or substantial. It is one of the degradations inserted into the St. Andrews Agreement which have contributed to the terrible governance. Has the CAJ looked at how that particular issue might be addressed in any review of the ugly scaffolding, as it were? Are there other operational mechanisms that need to be tweaked or refreshed in future assemblies?
Mr. Daniel Holder:
Yes, we have looked at that. We provided the mapping exercise to the committee, which goes through all the agreements and the unimplemented commitments. We see the goal ultimately of any future review process - and it may well come in the next endless cycle of renegotiation after the assembly election - as getting what has already been agreed implemented. There are certain areas where we see change to return largely to what was envisaged within the Good Friday Agreement. Primary among these is the removal of the veto that was introduced at St. Andrews over controversial and significant mandates. It turns the intention of the Good Friday Agreement on its head. It is a subjective tool to block rights-based policies and that is what it is used for.
A second issue that we have flagged is the power vested in the First Minister or deputy First Minister unfairly to block items going on the agenda of the Northern Ireland Executive. We have looked at that in detail as well. To give some examples from the current mandate, a submission to the Council of Europe treaty body on the Irish and Ulster Scots strategies was blocked from the Executive agenda and the Irish language strategy does not appear to have been progressed by virtue of being blocked from the agenda. As members may know, the draft budget in December 2020 was blocked for a number of months from the agenda of the Executive. Back in June 2021, the Minister for Communities at the time stated that legislation to close loopholes in the agenda had been blocked by the DUP 17 times. This was at the time the Minister of Health, Mr. Robin Swann, called out that opt-out organ donation legislation was being blocked from the agenda. The Minister of Justice, Ms Naomi Long, also called out that measures around upskirting and strengthening protections for victims of sexual abuse had also been blocked from the agenda. It was only after high-profile public intervention and outrage that those measures were given any sort of passage, albeit the latter was in reduced form.
The huge implications of the St. Andrews veto will come too late. We have a situation where Ministers cannot take any decision that is significant or controversial, which applies to almost any decision at the moment, given that there is no programme for government. If there is a programme for government, it puts the St. Andrews veto beyond its scope. It is obviously a very clever move simply to veto the programme for government. Therefore, the veto can be used on everything else. We end up in a situation whereby the body that is supposed to take the decisions that individual Ministers cannot take on the grounds that they are deemed significant or controversial - meaning Ministers can only take insignificant and uncontroversial decisions - does not exist because that body is the Northern Ireland Executive. It may well not exist after the next Assembly election for some considerable period of time. We could end up with something more than lame-duck Ministers, namely, Ministers who will not be able to progress any of the issues.
We have also looked at other issues as the Equality Coalition. We do not believe the reforms to the petition of concern went far enough. We would like what the majority wanted at the time of New Decade, New Approach, namely, for the human rights and equality commissions to have an adjudicatory role based on rights-based criteria, that is, the European Convention on Human Rights and the bill of rights when the latter is implemented. Things cannot really function until that happens.
The St. Andrews veto in the Executive needs to be knocked out but there also needs to be a broader review of cross-community designations, in particular given the growth to ensure that rights-based power-sharing involves participation across the community. At the moment, it is not based on community background at all but on unionist and nationalist traditional political designations. That is not to say we want to get rid of the system completely. We want a system obviously that prevents abuses of power by larger blocs but we believe that issue needs to be looked at.
A further technical issue is the good relations duty. While it was not in the Good Friday Agreement, it was added on to the equality idea as an appendage. It has been the mechanism used to wreck and block a number of equality policies. It has been heavily criticised by Council of Europe bodies and we believe it needs to be defined to ensure it is actually about tackling prejudice and promoting understanding.
That is rather than just being a veto over what is politically contentious, including some of the matters I raised earlier around housing, whereby it is seen as bad for good relations to put houses in particular areas because it is politically contentious. We are dealing with a case where Belfast City Council, after much campaigning and work, is adopting a much more progressive model for bilingual street signage in line with international standards. Nevertheless, its consultation is proposing an equality screening exercise to look at good relations impacts on each and every bilingual sign proposal. That seems to be code for not putting up such signage where it is politically contentious.
Again, that is not an example of objective, rights-based criteria but rather vesting a veto in the opponents of rights and equality that can block and obstruct things agreed many years ago. The Good Friday Agreement, in such an example, was meant to mark a reset in the relationship between the Irish-speaking community and the state and move away from the predecessor English-only policies. It is ironic some of the mechanisms that were to underpin the Good Friday Agreement have been implemented in the wrong way, such as with the addition of the good relations duty. We are not there yet.
As the Equality Coalition we have a network of over 100 non-governmental organisations and trade unions campaigning on equality issues. We have a series of key policy requests we believe would be helpful to making the institutions function in any way.
Ms Michelle Gildernew:
Today's session has been deeply informative. At times it has been depressing but it has been very useful to hear Mr. Holder outline some of the challenges we have to fulfil with regard to our rights in the North. I thank him and Ms Boyd for the level of detail they provided. I do not know how other members of the committee feel but I think it would be no harm while we watch things progress to have the witnesses in again at a later date in order to get updates on the outstanding matters, such as Acht na Gaeilge, the bill of rights, legacy matters and all of that. If Mr. Holder and Ms Boyd are willing to do it, I put it to them now that they could come back to speak to us again.
Everybody who has spoken is clear on what we are doing. We have listened very carefully to the witnesses and some very important points have been made. The clerk to the committee has taken note of the issues. It has been a very helpful and informative session. We will get back to the witnesses and they may wish to correspond further on any matters.