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.