Oireachtas Joint and Select Committees
Thursday, 29 June 2023
Joint Oireachtas Committee on the Implementation of the Good Friday Agreement
Impact of Brexit on the Divergence of Rights and Best Practice on the Island of Ireland: Discussion
Fergus O'Dowd (Louth, Fine Gael)
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Apologies have been received from Deputy Violet-Anne Wynne. On behalf of the committee I warmly welcome Ms Sinéad Gibney, chief commissioner, Irish Human Rights and Equality Commission, IHREC; Ms Alyson Kilpatrick, chief commissioner, Northern Ireland Human Rights Commission, NIHRC; and Ms Geraldine McGahey, OBE, chief commissioner, Equality Commission for Northern Ireland. They will discuss their joint publication entitled European Union Developments in Equality and Human Rights: The Impact of Brexit on the Divergence of Rights and Best Practice on the Island of Ireland.
Before we begin, I will read a note that is read out at every meeting about the practice of the Houses as regards references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, witnesses and participants who are to give evidence from a location outside the parliamentary precincts are asked to note that they may not benefit from the same level of immunity from legal proceedings as a witness giving evidence from within the parliamentary precincts does, and may consider it appropriate to take legal advice on this matter.
Witnesses are also asked to note that only evidence connected with the subject matter of these proceedings should be given and that they should respect directions given by the Chair and the parliamentary practice to the effect that, where possible, they should neither criticise nor make charges against any persons or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the person's or the entity's good name.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him her or it identifiable.
The speaking order for witnesses is Ms Gibney, Ms McGahey, and then Ms Kilpatrick. If the witnesses wish to change that order, please do..
Ms Sin?ad Gibney:
That is perfect. I thank the Chair, and good afternoon everybody. I am chief commissioner for the Irish Human Rights and Equality Commission, Ireland’s independent national human rights institution and equality body. I am joined today by Ms Alyson Kilpatrick, chief commissioner for the Northern Ireland Human Rights Commission, and Ms Geraldine McGahey, chief commissioner for the Equality Commission of Northern Ireland. We are delighted to join the committee again following on from our joint appearance before it in September last year.
As the committee may recall, our three commissions have been mandated to oversee and report on the implications of Brexit for rights and equality on the island of Ireland. This we do specifically do under Article 2 of what is now the Windsor Framework, previously known as the Protocol on Ireland and Northern Ireland.
In Article 2, the UK Government commits explicitly to ensuring that no diminution of certain rights, safeguards or equality of opportunity, as set out in the relevant chapter of the Good Friday Agreement, arises from its withdrawal from the EU. In recognition of the key role that EU anti-discrimination law has played in underpinning the provisions on equal treatment in the agreement, Article 2 includes a commitment to Northern Ireland law "keeping pace" with core protections against discrimination enshrined in EU law.
Article 2 specifies that this commitment be implemented through dedicated mechanisms, namely the two Northern Ireland commissions, who work together with ourselves in IHREC, specifically on rights and equalities issues that have an island of Ireland dimension. The Article 2 commitment, and our joint work to ensure it is upheld, is so important because it aims ultimately to protect the centrality of equality and human rights in the agreement, including its requirement that there be "an equivalent level of protection of human rights" in Ireland as in Northern Ireland. To support this work, we developed the research and joint policy recommendations we are here to discuss today. Led by our colleagues in the Equality Commission of Northern Ireland, on behalf of our three organisations, the aim of the research was to analyse the impact, or potential impact, of Brexit as regards the divergence of equality and human rights protections on the island of Ireland.
My fellow chief commissioners will explore these in greater detail but, at a top level, I will mention the key findings from the research While EU membership facilitated broad alignment of equality and human rights law across the island, some significant areas of divergence existed prior to Brexit, including in the areas of work-life balance, protection from age discrimination in access to goods, facilities and services, pay transparency reporting and gender reassignment. We can see where further divergence of rights loom post Brexit, in terms of proposed EU laws that stand to strengthen equality and human rights in Ireland in the near future but are not required to be implemented in Northern Ireland despite the Article 2 commitment. Such EU laws include, for example, the work-life balance directive, the European Accessibility Act and proposed legislation aiming to improve the gender balance among non-executive directors of listed companies.
In light of the findings, our commissions consider that long-term North-South equivalence of rights is important to ensure there is no diminution of rights in Northern Ireland and to ensure human rights and equality protections are subject to continual improvement. We have, therefore, made policy recommendations arising from the findings, aligned to our specific remits and mandates. On that basis, my organisation, IHREC, has joined the other commissions in making the following two specific recommendations: first, that North-South equivalence of rights and protections be ensured by Northern Irish law keeping pace with changes to equality and human rights law, arising as a result of EU laws introduced on or after 1 January 2021, that enhance protections. This should include rights introduced as a result of EU laws that do not amend or replace the protocol annex 1 directives; and, second, that the Irish Government, the Northern Ireland Executive, and the UK Government work to enhance and harmonise equality and human rights protections on the island of Ireland, aligned to their respective remits, and make a clear commitment to working towards ensuring North-South equivalence of rights on the island of Ireland so as to strengthen protections. If implemented, these recommendations would help to avoid a divergence of rights that would not only see rights protections diminished in Northern Ireland, but would also run contrary to the vital commitment on equivalence set out in the agreement. I will now hand over to Ms McGahey.
Ms Geraldine McGahey:
Good afternoon everyone and I thank the committee for the invitation speak. As Ms Gibney said, the committee will be aware that Europe has played a key role in strengthening and shaping equality rights in Northern Ireland. Prior to Brexit, all three jurisdictions: Northern Ireland, Ireland and Great Britain, had to adhere to the same EU equality laws. In effect, common standard was followed by all of us.
This was vital because since the signing of the Good Friday Agreement, no equality law has been implemented in Northern Ireland as a result of Assembly legislation initiated by the Executive, although, on foot of a Private Members' Bill, we do have some changes coming forward, for which the commission has been calling for quite some time, with regard to the exception of teachers from our fair employment legislation.
Northern Ireland has already fallen behind both Ireland and other parts of the UK in terms of some equality protections. Our protections must not be allowed to fall further adrift from our nearest neighbours. We must take action to make sure these are addressed.
A survey we commissioned in Northern Ireland last year showed that 42% of people who responded felt that their rights had already been reduced because of Brexit. There are some very specific areas where there is the potential for equality and human rights to diverge on the island of Ireland either because of EU laws introduced post Brexit or EU laws that may be introduced in the future.
The Equality Commission and Northern Ireland Human Rights Commission are calling for changes to Northern Ireland laws in areas that change where they strengthen rights and align with international human rights best practice to avoid a divergence of rights across the entire island. One specific area is that of introducing new protections against age discrimination in the provision of goods, facilities and services, an example of which is healthcare. Unlike Great Britain and Ireland, in Northern Ireland, there is no protection against age discrimination outside the field of employment and training. There is also a draft EU directive that would prohibit such discrimination if it were to be introduced.
Another area relates to gender pay transparency. Again, unlike Great Britain and Ireland, in Northern Ireland, there are no gender pay gap reporting requirements on employers. In April this year, the European Council adopted the EU pay transparency directive, which aims to strengthen pay transparency and eliminate gender-based pay discrimination, including by introducing gender pay gap reporting for certain employers, to which Ms Gibney already made reference.
Proposed EU directives outlined in binding standards for equality bodies, which were published by the European Commission last December, would, if introduced in Northern Ireland, be of value to people there seeking redress against discrimination. Our view is that these proposed directives, if introduced, would amend several annex 1 equality directives and, therefore, the UK Government is required to make changes to Northern Ireland equality law to reflect those directives.
Similarly, the EU Accessibility Act 2019 aims to benefit people with disabilities and older people, including through providing more accessible products and services. The EU directive on work-life balance for parents and carers, for example, aims to improve access to family leave and flexible working arrangements. Both of these have already been adopted by the EU but post Brexit the UK is not required to transpose them into domestic law. We are calling for steps to be taken to ensure that Northern Ireland law voluntarily aligns with the provisions of the Act and the directive that enhances these protections.
In addition to these EU law developments, we have also set out measures that we consider the Northern Ireland Executive and relevant Departments can take to ensure that Northern Ireland law keeps pace with evolving Court of Justice of the European Union case law post Brexit relating to the annex 1 equality directives, including, for example, making changes to equality laws so as to strengthen rights for disabled people. We consider that strengthening rights in these areas will make a substantial difference to the day-to-day lives of many equality groups in Northern Ireland, including older people, women, parents and carers and disabled people.
On 8 June, we published our research paper, Impact of Brexit on Minority Ethnic and Migrant People in Northern Ireland. This important research found that people from these groups who participated in the research said racism was a normal part of their daily lives and that there was a widespread perception that Brexit had led to an increase in the expression of racism. This is backed up by what we learned at a series of face-to-face sessions with minority ethnic and migrant people and their support organisations.
In terms of some of the cross-Border issues highlighted in our research, concerns raised included racial profiling at the Border as well as the impact of Brexit on cross-Border workers. As regards workers, this included concerns about the lack of information and support available in relation to applying for the cross-Border permit scheme and ramifications of that for those workers.
In conclusion, it is vital that, post Brexit, the equality and human rights of everyone who lives or works in Northern Ireland do not continue to fall behind those in Great Britain and Ireland. We are calling on the UK Government, the Northern Ireland Assembly and the Northern Ireland Executive to act on our recommendations. We have a clear vision of ensuring that equality and human rights are protected and promoted in Northern Ireland, a vision that reflects that equality was at the very heart of the Belfast Good Friday Agreement.
Ms Alyson Kilpatrick:
I wish members a good afternoon and thank the committee for this opportunity.
Since we last appeared before the committee, the UK Government and European Commission reached agreement on a new way forward on a protocol now known as the Windsor Framework. We regard it as a positive step in addressing the complex trade issues, including those on medicines and pet travel. While we welcome the exclusion of the annex 1 equality directives from the Stormont brake, we have concerns. Any new additions to the list of annex 1 equality directives may now be subject to a cross-community Assembly motion. That is an unwelcome new hurdle which could contribute to divergence.
Our second concern relates to the trade directives in annex 2 to the Windsor Framework. Some of these trade directives have equality or human rights impacts that we have identified as falling within the non-diminution protection. For example, manufacturing standards for lifts affect accessibility for disabled people. The Stormont brake means that the keep-pace obligation applies in a more limited way. Equality and human rights considerations, therefore, need to be built into every stage of the Stormont brake to minimise inadvertent damage to rights and, hopefully, reduce further divergence on the island. Regular and structured stakeholder engagement will be essential to that.
We are also very concerned about rights protections in Northern Ireland in the current climate. The direction of travel is clear from the Illegal Migration Bill, retained EU law Bill and legacy Bill, all of which raise grave questions of compliance with fundamental rights and international commitments.
To give one example, the Secretary of State was not able to vouch that the Illegal Migration Bill complied with the European Convention on Human Rights, ECHR. We have identified multiple compliance issues with the ECHR and the Refugee Convention. We also believe the Bill breaches Article 2 of the Windsor Framework since the EU asylum acquis provides minimum protections from which the UK is seeking to depart. This would also increase divergence of rights on the island and have potentially serious implications for those crossing the Border.
More worrying still, while Human Rights Act reform is stalled for the time being, some of its principles are reflected in the Illegal Migration Bill, which seeks to remove oversight of the European Court of Human Rights through interim measures. Article 2 of the Windsor Framework provides something of a defence against these attacks on rights but it is not a panacea. It is certainly no substitute for the promised bill of rights for Northern Ireland, which is a commitment yet to be realised.
The Belfast-Good Friday Agreement commits to ensuring the equivalence of rights on the island of Ireland. Divergence has a direct impact for people here, especially those living in Border areas. In the context of 30,000 daily Border crossings, we are particularly concerned about electronic travel authorisations, ETAs. We welcome the UK Government clarification that Irish residents who would not usually require a visa to visit the UK will be exempt from requiring an ETA. This development has partially addressed our concerns. However, non-residents will still need to apply for an ETA when travelling from Ireland to Northern Ireland. In our view, any barrier constitutes a detriment to the enjoyment of rights on the island. We know that if some people are required to demonstrate their right to travel, it will affect everyone and could lead to an increase in racial profiling.
We are experiencing a period of particularly intense and consistent attacks on human rights and this wider culture is particularly affecting the rights of migrants. Brexit created new categories of rights holders in Northern Ireland and we know that migrants and minority ethnic people in Northern Ireland are being asked to prove their rights to access services, for example, in the area of health. We are being told of people being improperly refused access and having to jump through additional bureaucratic hoops to access services to which they should be entitled. These issues are of particular concern for some of the most vulnerable in our society, including migrants. For example, Roma people seem to have been particularly affected.
The research also highlighted the importance of the framework for the protection of rights, including access to remedies and compensation, where appropriate. A diminution of remedies is a diminution of rights.
We will continue to monitor the divergence of rights and have commissioned an update to the research. My colleague, Ms McGahey, at the ECNI has been leading this on behalf of the three commissions. In our view, the divergence of rights falls within the ambit of the Belfast-Good Friday Agreement and is connected to North-South equivalence. We are, therefore, asking the committee to consider the divergence of rights as part of its mandate and to engage with us further as we continue with this work.
Fergus O'Dowd (Louth, Fine Gael)
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I thank Ms Kilpatrick for a very informative address that points the way for protection and change. There were many important issues and some of them, concerning intergovernmental points between Britain and Ireland, are very significant. Obviously, the assembly is not sitting and that probably affects some of these issues. Have the commissions prioritised them in correspondence with the Government? How can we ensure we will follow up on them in the best and most efficient way?
Ms Geraldine McGahey:
We have produced a number of booklets. I have to hand one that deals specifically with the recommendations and the rationale for those recommendations, and we have forwarded copies of it to the office of the Secretary of State for Northern Ireland, to Westminster and to the various committees that are involved. We can certainly provide one to this committee as well.
Fergus O'Dowd (Louth, Fine Gael)
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We have met the Northern Ireland affairs committee a number of times and we will be very happy to work with the commissions. I think there would be collective support in that respect.
Ms Geraldine McGahey:
As Ms Gibney said, some of the recommendations have been made by all three commissions, while others have been made specifically by the Northern Ireland Human Rights Commission and us because they have a Northern Ireland context. Given this committee is involved in the implementation of the Good Friday Agreement and equality was at the heart of that agreement, as were human rights, and given that is the foundation on which our peace process has been built, it is wholly appropriate that this committee would be interested in what those recommendations are, how the Governments act in implementing those recommendations and the progress we make.
Each year, we issue an annual report on the progress in our work over the previous year. Our second annual report, which we will issue next week, will show the recommendations we have made in regard to what was the protocol and is now the Windsor Framework and to how the Government has been working towards reacting - I will not say "implementing" because that has not been the case - to our recommendations. We will address in each year's subsequent annual report the work that has been done in the previous year, and we will be more than happy to share that with the committee.
Fergus O'Dowd (Louth, Fine Gael)
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That would be very helpful.
Emer Currie (Fine Gael)
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I thank the witnesses for a very informative presentation, just like the previous one they gave us. They have painted a stark landscape and I would like them to reflect on the bigger picture, having laid out the individual issues. There is no assembly in the North at the moment and that has an obvious impact on people's quality of life, but they pointed also to a systemic inequality that has come about as a result of Brexit. As they said, human rights and equality were central to the Good Friday Agreement. How do they foresee that divergence being resolved, even if the assembly is sitting?
I am a member of the British-Irish Parliamentary Assembly and the sovereign affairs committee, as is Senator Ó Donnghaile. That committee, of which I am chair, produced a report on the future of the UK-Ireland relationship and pointed out that divergence, which was going to be an ongoing issue after the Windsor Framework, was something we would have to monitor. The divergence has a specific and acute effect on Northern Ireland. How do the witnesses foresee it being addressed? Will additional infrastructure in the assembly be required to deal with it and what can the Irish Government do to support that?
Our second report, which we are working on, relates to the common travel area and, primarily, to the impact of electronic travel authorisation. We had an interesting meeting with representatives of the North West Migrants Forum. These issues existed previously, but people will face similar issues in respect of tourism when the measure is introduced. Will the witnesses elaborate on that? They might even make a written submission to our committee based on what they have to say.
Ms Geraldine McGahey:
It is important the people of Northern Ireland have a functioning assembly sooner rather than later. Not having one has caused instability on a range of issues, from budget-setting to the progression of legislation and the delivery of various strategies that have equality and human rights at their heart, whether relating to anti-poverty or any of the other issues. It is incumbent on all of us to keep a watchful eye on this because the divergence of rights will evolve over time. The scope of Article 2 has yet to be fully determined and it is only the courts that can do that.
As that evolves and as European legislation evolves and case law emerges, the prospects for divergence will continue to grow. It will require constant monitoring, therefore, and to that end, we are in the process of commissioning our second report and research paper into this very issue because it is a moveable feast. The report highlights the fact there were a lot of unknowns at the time the first report was delivered. We make recommendations that impact on everyone and every level of government, including the civil service and officials. We all must keep a watchful eye on developments in the EU and to that extent, we have included a recommendation for the EU to provide access to that kind of information in real time. We have made recommendations in respect of officials providing the various committees with a clear explanatory document to set out how the proposed legislation or policy complies with the commitments in the Windsor Framework, in particular Article 2. Every level and strategy of government is required to keep a watchful brief on new legislation being proposed and developed within Northern Ireland itself, Westminster and the EU because it is through that process that we will be able to identify where further divergence is likely to occur.
We recommend also that the UK Government and the Northern Ireland Assembly voluntarily align with developments that fall outside the directives listed in annexe 1 because we believe that anything that will strengthen the equality and human rights protections for the people of Northern Ireland is very much to be welcomed and embraced. We no longer want to be the poor relative lagging behind all our neighbours in respect of the protections at our disposal, and committee members will find a lot on that within the document.
As for the impact of the electronic travel authorisation, ETA, on tourism, I will hand over to my human rights colleagues.
Ms Sin?ad Gibney:
I will pick up on a few aspects of the Senator's contribution but I might first address the Chair's comments. The first report we are here to talk about contains a set of recommendations from the researchers, and I pay credit to the excellent team of researchers led by Colin Murray. To be clear, the Irish Human Rights and Equality Commission, respecting our specific remit, jurisdiction and mandate, joins our colleagues in making only two specific policy recommendations because, obviously, the commitment is on the UK Government, so most of the recommendations and work on this relate to the United Kingdom.
I wanted to provide clarity around prioritisation.
Regarding Senator Currie's question about rights and equality and how we can keep them central, for me, this is a really helpful step in understanding the complexity of the protection of rights and equality post Brexit. From the research, we can understand the different types of alignment. For example, we talk about dynamic alignment compared with the stricter keeping pace set. A picture emerges whereby the protection of rights and equality in Northern Ireland is going to be a complex proposal, particularly within the legal sphere. This will involve mapping out what laws have to keep pace versus what ones are using the dynamic alignment, and how they move, how the implication of further judgments might impact on some of the annex directives and so on. It contains a lot of complexity. We need to start to understand what that is going to look like on a practical level. I urge the committee to maintain its focus and priority on rights and equality and bring that focus into the dialogue.
The second recommendation we have signed up to calls for the Irish Government, Northern Ireland Executive and UK Government to work to enhance and harmonise equality and human rights protections. We do not go any further in saying, for example, how the Irish Government might operationalise that recommendation. However, it merits being discussed by the committee. For example, is it something that can happen in the existing infrastructure of the British-Irish Council and the relevant bodies that Senator Currie listed? Alternatively, is it the case that new forums need to be established to facilitate the dialogue about post-Brexit rights and equality, with a divergence being central to the discussion? We need to ensure that rights and equality remain central to the agenda. Perhaps they were not as prominent as we would have liked throughout the process of Brexit. I am delighted that the committee invited us back and that it continues to look at this area and keep it front and centre on its agenda.
Regarding the common travel area, CTA, and the electronic travel authorisation, ETA, Ms Kilpatrick will be able to speak about this as well. I remind the committee of the publication we put forward prior to Brexit in which we looked at the CTA. It was part of the joint committee work of the NIHRC and IHREC. We put forward a recommendation that the CTA be placed on a statutory footing. I think many legislators would agree with this. That is a really valuable document. We are happy to recirculate it to members of the committee to enable them to refresh their minds on its contents. Even though it is a few years old, it is still very relevant and pertinent.
As Ms Kilpatrick said in her introduction, although we are happy that there has been some mitigation in terms of the steps taken on the ETA, we have many concerns. Senator Currie's call about tourism is correct. I have spoken to people who tell me that Fáilte Ireland puts packages together for cross-Border marketing of tourism in Ireland. The fact that people are now going to be facing checks is really problematic. Hopefully, that is one area where we can advance it. We also have concerns, as Ms McGahey has mentioned, around some of those minority groups and how they might be impacted by it.
Ms Alyson Kilpatrick:
The consequences of Brexit clearly had an impact on human rights and equality in both parts of the island of Ireland. Even more significant, perhaps going back to how the question was started, is how the overall direction of travel in the UK is affecting Northern Ireland. The post-Brexit consequences have been mitigated to a large extent by the Northern Ireland protocol, now the Windsor Framework. Irrespective of that, we still have a very concerted attempt to limit or exclude rights from certain rights holders or certain areas. That goes against the universality and inalienability of rights. We think this is a very dangerous shift, and it is very deliberate. In the last few days, we have heard that the bill of rights legislation, the purpose of which was to redress the balance of human rights, was not proceeding. What was made clear yesterday is that the intent behind that Bill is still proceeding, albeit that it is being split up and divided across different bits of legislation. We are concerned about the Illegal Migration Bill and the legacy Bill, among others. That is probably the most difficult thing we are facing. We have done a lot of very specific detailed briefs in relation to how the committee might assist us. I thank the committee for the offer of help. We can share all that information with members and do a further written submission.
In some ways it is more fundamental and straightforward than that. It is that the commitment to human rights is not only weakened, but it would seem to be going in the wrong direction altogether. Clearly, as a human rights commission, that is something that should concern us but it should also concern everyone on the island because it will lead to further divergence of a quite dramatic kind.
Regarding the CTA and the ETA, we still call for an extensive exemption encompassing all journeys into Northern Ireland from Ireland. We say that would be consistent with the aims of the CTA. As Ms Gibney just said, it is only really a piece of paper, unfortunately. One cannot take it into a courtroom and ask a judge to enforce it. We feel our recommendation would deal with that lack of enforceability.
Emer Currie (Fine Gael)
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The witnesses are being very restrained about the attack on rights. The future is stark given that people in the North are looking at being second-class citizens in terms of their rights. There is a lot of energy going into the impact of the Windsor Framework and there is not enough attention being paid to this.
Pauline Tully (Cavan-Monaghan, Sinn Fein)
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I thank the witnesses for their contributions on an issue that is very important, if very alarming. The Good Friday Agreement indicated that there should be no divergence of rights on the island of Ireland. I think that was reiterated by the UK Government after Brexit. However, the witnesses have indicated that there was some significant divergence prior to Brexit and that possibly more looms post Brexit as well. It is worrying that no equality law has been implemented in the Northern Assembly or initiated by the Executive since the Good Friday Agreement. I know that all of Britain and Ireland were under auspices of the EU and that kept check on some rights. The figure of 42% who feel that their rights have been reduced because of Brexit is the most alarming. That is almost half the population. Do the witnesses have a breakdown on that figure or any indication of what those rights are?
In the absence of a working assembly and the long-awaited and long-promised bill of rights, the onus is now on the UK Government. However, the direction it is taking with the legislation it has introduced is the opposite of where it should be going. If one talks to people from a migrant or an ethnic minority background, most of them will say they have encountered racism of some form during their lives. That seems to be on the increase everywhere and it is much more vocal and in our faces. Action has to be taken by the Irish and British Governments and the Northern Assembly when it gets back up and running to counteract that. I am extremely worried about where it is all going and the impact that social media has. Does Ms McGahey have faith in the British Government to do the right thing in the absence of a Northern Assembly?
Ms Geraldine McGahey:
I will not go as far as to make a comment about whether I have faith. I think that would be outside of my remit but I share the Deputy's concerns. Regarding the survey work the Deputy referred to, the figure of 42% was from a survey result from last year. We have just had the results of our most recent survey.
While I used the figure of 42% in 2022, the committee members may be alarmed to know that the figures for this year show that over half, or 57%, were concerned or very concerned that their equality and human rights would be affected in the future, while 53% felt their rights had already been reduced. On whether rights have been reduced, we are still plotting the divergence of rights and the scope and potential for that. We were all very well aware that there was a gap because Northern Ireland has not had any legislative developments, with the exception of amendments that were imposed by Westminster at times when the Assembly was not functioning. These amendments really came about on foot of EU directives or EU requirements. The only exception has been a private members' Bill on some exceptions for teachers under the fair employment legislation.
On many occasions, we have been at the consultation stage in respect of improvements in our legislation. Inevitably, we get to a stage where there is disagreement between the political parties on some aspect of it. We come to the next hiatus in the life of our Assembly and it does not get progressed, or we come to the end of term and we go into election mode. Then it gets put back into the melting pot of the next programme for government and nothing happens. To take the example of age discrimination back in 2016 or 2017, the Assembly had consulted on reformed or new legislation which would address the potential discrimination for anyone of any age from birth right through. The issue of the timeframe from birth to the age of 16 caused that consultation process to fail. As the political parties could not agree on that, the Assembly came to the end of its term and it went back into abeyance. It still appears on the last programme for government but again there has been no action.
Currently, we have a consultation exercise, which closed approximately ten days ago, on reform to our race law. We welcome that very much because it takes on board most of the recommendations the ECNI has been making for the past 15 years. I do not exaggerate when I say 15 years. We have been making recommendations for law reform for that long. We are being advised by officials within the Department that work is ongoing with political parties to consider the feedback from the various consultation exercises that have been under way to enable a quick win or quick progress should the Assembly get back into functioning mode. We hope that is the case because it will give us some form of improvements to our race law. It also has the potential to deliver on much-needed reformed hate crime legislation, which will go some way to addressing racism. Many other strategies are at the consultation stage.
It is really alarming that so many people from ethnic minorities and migrant communities consider racism to be part of everyday life and do not raise an issue about it. I have embarked on a programme of outreach work across Northern Ireland from Strabane to Armagh, and Lurgan to Ballymena. I have met people from ethnic minority communities. Some of the stories they have told me have been absolutely horrific. They have told me about the things that are said to them, the way they are treated and, more importantly, the confusion that exists in Northern Ireland among the public sector or the public services as to EU settled status, whether people have pre-settled status, a share code, or what that actually means. They continually have to provide evidence of their status. They are charged for services that they are entitled to, or are denied access to such services. I know of a case in which a member of the Roma community was denied treatment in a hospital. A terminally ill person with stage 4 cancer was sent home with paracetamol and was not given treatment. That person had to be moved back to the country from which she came. Her friends and the wider community raised funds to send her home for treatment. That should not happen in a modern society. That is wrong.
There are many issues in terms of racism. Racial profiling at the border is another big issue. We have spoken before about how we get anecdotal evidence of this. We know that the Committee on the Administration of Justice and the North West Migrants Forum apparently are developing some form of database that would allow for real-time recording of incidents. We are on the record as having written to the UK Home Office. My colleague will talk about the work she has done with the Garda on racial profiling. However, we have not made satisfactory progress. We have some examples of where we have supported people to take discrimination cases on racial profiling at the airport and at ports but not on the Border. We would very much welcome any further information. I am conscious I am taking up so much time. I will pass over to my colleagues. I could talk forever on this issue.
Ms Alyson Kilpatrick:
On the question of whether we think it is going to be sorted, I think the answer to that is "No". I am not going to express it in terms of faith but one can tell a little about what someone is about to do from what they have already done. Evidence of intention can be taken from the current programme of work. The illegal migration Bill is one of the measures that tells us exactly what the intention is. It includes things which were previously inconceivable such as arbitrary detention without judicial scrutiny - without even recourse to a judge - for at least 28 days. These people could be pregnant women or children, etc. Those are not oversights or mistakes; they are deliberate. That tells me what I need to know about the intention to protect rights more generally. Therefore, we have to be very careful about what is coming and scrutinise every Bill. Of course, that is going to have an impact here as well because someone could inadvertently cross the Border and fall far off the Secretary of State's duty to be detained and removed.
Ms Sin?ad Gibney:
I will not comment again - respecting the limit and jurisdiction of the UK Government - on the question of intent or otherwise. It is important to recap. Deputy Tully spoke about the equality picture on either side of the Border. Obviously, the commitment in the Good Friday Agreement - the Belfast Agreement - was really about bringing Ireland, this side of the Border, up to the same level. As the Deputy has identified, what we have now is a picture whereby Northern Ireland is perhaps now the one that is lagging. I think I referenced in our last visit - just to say again that I would be happy to circulate this - that there is some really interesting academic literature in this space. Professor Christopher McCrudden and Professor Brice Dickson have both written about it. When it is mapped out, although they are not identical in their protections, there is a roughly similar size of protections on both sides of the Border but they are weak in different areas. It is important to acknowledge that this is a moving picture. There is much more progress here than there would be in Northern Ireland. For example, the Department of Children, Equality, Disability, Integration and Youth is currently reviewing equality law. We will be inputting into that submission.
Examples really bring this to life. One of the examples from the report we are discussing today is the European Accessibility Act, which is a directive that aims to improve the functioning of the Internal Market for accessible products and services. These would be products used by older people and people with disabilities. The deadline for member states to implement the provisions of the Act was June 2022. It will become effective in 2025. This means that the UK Government is not required to transpose it, whereas we must do so. That means that work is underfoot here. When that happens in 2025, there will be a different experience of standards and of products. It will have a real, deep impact on the people who use those products and their experience of them on both sides of the Border. That is a real example of where equality will be quite stark for people, particularly groups such as disabled people and older people.
I know time is running out but I will speak briefly on racism. I acknowledge it is an issue in both jurisdictions. The National Action Plan Against Racism has now been published - following a 12-year gap, essentially - and we await that. I would like to call out one of the biggest gaps we have in this area, which is data. There is a real need to capture the data. That applies not only to the very specific area around the electronic travel authorisation, ETA, but more generally and it applies to racial profiling.
As we see it, the potential for racial profiling by An Garda Síochána cannot be measured right now because we do not yet have that data. I do not want to take up any more time. I know the Deputy has more questions.
Rose Conway-Walsh (Mayo, Sinn Fein)
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I have two minutes left. We are doing work on the constitutional future. We are working on the future of the economic sector at the moment and we will produce an interim report after that. Obviously, equality and human rights forms part of that work. What came across, particularly in our discussions on taxation and welfare, was that it is time that we envisage something different, and something that is underpinned by our values. As the witnesses speak and as I see all of the contributions that the organisations continuously make, which is enormously valuable work, it crosses my mind that we know for certain that the British Government is determined to override people's rights. We know the international consequences of that, as well as the consequences for victims and families of victims. We have not had the bill of rights or the all-island charter of rights. Do we need to take all of work done by organisations represented here and that set out by academics as to what such a bill or charter of rights would look like in terms of having rights that are underpinned by particular values across the country in order to get a grip on it ourselves? We could be forever and a day knocking on the British Government's door. There has to come a point where we stop flogging the dead horse, respond to the recklessness and unilateral action, pull all this back and design our own system. That is my main point.
Ms Alyson Kilpatrick:
Years ago, we advised on a charter of rights for the island of Ireland, and we stick by that advice. We think there should be one. In addition to that, there is still the unfulfilled commitment to a bill of rights for Northern Ireland, based on the problems of the conflict. Of course, that is even more important given that there is very serious talk now of abandoning the European Convention on Human Rights altogether. There are indications that the enforceability of it will be undermined by amendments to the Human Rights Act 1998, which will breach the Good Friday Agreement. The short answer is "Yes". Something needs to be done to ensure people's rights here.
Ms Sin?ad Gibney:
I am not exactly sure of the framework or the forum to which the Deputy referred, where this constitutional discussion is happening. I thank the Deputy for her comments on our contributions and how helpful they are. Last year, we put out a policy statement calling for the constitutional protection of economic, social and cultural rights. There needs to be a greater prominence of human rights and equality in those types of constitutional discussions. We will be happy to continue to support the committee's work in that area in any way we can. I have nothing further to say, apart from echoing what Ms Kilpatrick mentioned in terms of the specifics on the charter of rights. Following our most recent appearance, we followed up on that. We did not have the information to hand at that meeting. All members will have received our joint letter on that particular topic.
Niall Blaney (Fianna Fail)
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The witnesses are welcome. It is great to see three chief commissioners, who are all female. Congratulations on that. It is not very often that we see that in the Houses of the Oireachtas.
It is really hard to believe that in 2023, the approach to human rights is as it is. I do not even think that the approach to human rights was as bad in Margaret Thatcher's day as it is at the moment. Boris Johnson may be gone, but the European Research Group culture lives on. It is shocking. The picture painted by the witnesses is shocking, as is the continuing approach of the UK Government in relation to the Bills that the witnesses have outlined, including the Illegal Migration Bill. Looking at the UK Government in the context of its membership and those who come from migrant backgrounds, it is astonishing that we are dealing with this matter. It is disgraceful. Have these people no backbone? Do they not know their own cultures and where they came from? In this day and age, it is diabolical that we are back here dealing with this again.
I, too, would like to see and all-island bill of rights. We have to be careful about how might be done, however. Certainly, it would have to be done with Stormont back in action and everybody having their say in that. It is something to look forward to.
The committee has done a great deal of work on the Northern Ireland Troubles (Legacy and Reconciliation) Bill. The former Police Ombudsman, Nuala O'Loan, tabled a number of good amendments to the Bill. We were hoping that she would table a few more on the floor of the House of Lords in order to have it pushed down the road until such time as Stormont is back in place. That did not happen. It is what it is. I have one question for the witnesses. I am thinking further down the road in terms of the Labour Party and the Liberal Democrats. Are the organisations having much consultation with them, from the point of the view of their approach to what is happening and what they would do? There is going to be no shifting on policy as long as the Tories are in power. I think we need to be looking at the parties that are next in line. We have had a fair bit of contact with Gráinne Teggart from Amnesty International. The organisations are all pretty much aligned in their thinking.
Moreover, I think it is important that we make representations, through the Chairman, to the Taoiseach and the Tánaiste, and maybe ask them to come in and address the committee about these issues, particularly from a human rights perspective, and see where our Government is going. It may by the autumn before we get them in. We must also the possibility of taking a case on the human rights element of the legacy Bill to Europe. On behalf of the committee, the Chair wrote to the Government last week asking it to ensure that a case be taken if the legacy Bill does pass. It is important that we hear from the Taoiseach and the Tánaiste on that matter, sooner rather than later.
Fergus O'Dowd (Louth, Fine Gael)
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If we put that down as a motion, we can all approve it.
Niall Blaney (Fianna Fail)
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I propose that. My only question is on the organisations' consultation with the Liberal Democrats and the Labour Party.
Ms Geraldine McGahey:
I can confirm that we are in regular communication with peers and cross-benchers in the House of Lords regarding the issues that are being discussed in the House in respect of which we feel we have a contribution to make. We have both, separately and collectively, met with the various political parties, including the Shadow Secretary of State for Northern Ireland, who is a member of the Labour Party. As most of the committees in Westminster have a cross-party membership, we are very much in communication with many Labour and Liberal Democrat MPs, as well as Conservatives.
Niall Blaney (Fianna Fail)
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Do the organisations have a sense of what the future may be? Is there a better outlook?
Ms Geraldine McGahey:
We do not engage on the political side of things, but they have a fairly good understanding of what is happening in Northern Ireland, the significance of the issues, particularly in respect of the divergence of rights, and where gaps exist between Northern Ireland and Great Britain. They are very supportive of that kind of work. They express a keen interest in the work of the dedicated mechanism unit and the work of both commissions, along with the all-island dimension. They are very engaged. I would say the level of engagement varies among Members. At the same time, if you were to look at it on a party basis, there is a high level of engagement.
Fergus O'Dowd (Louth, Fine Gael)
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I appreciate that the organisations have shared a number of documents with us. Obviously, the absence of the Executive and of a Government in the North is the big weakness. If Stormont was functioning, those on all sides could pressurise it in a constructive way. In its absence, we are going after the Government in Britain, which is not engaged or which does not want to engage.
It has refused interest in the matter and has less interest than it had, so it really is a crisis. When the Executive gets up and running, that will be a much easier way to put pressure on and get an outcome.
Ms Alyson Kilpatrick:
I will clarify a matter. I missed the opportunity to do so earlier. On the observation made, I will clarify that the NIHRC gives the same advice irrespective of whether a party is in government or opposition. We are concerned only with the fact that this is unlawful and contrary to human rights. We will continue to give that advice if the Labour Party gets elected in the UK. We respond to all. Our job is also to advise the government. I wanted to make that clear. We have no interest in the politics of it.
Fergus O'Dowd (Louth, Fine Gael)
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We acknowledge that, absolutely. The NIHRC could not exist otherwise.
Dr. Stephen Farry:
Good afternoon to all our witnesses. I acknowledge the hard work all the commissioners do in engaging with all the political parties and actors in London, Belfast and elsewhere.
I will pick up on a few themes, through comments and possibly some questions arising from those. Unfortunately, most of them will probably be directed at Ms Kilpatrick. I want to elaborate a little more on the prospects around an assault on the Human Rights Act at Westminster. We saw a statement this week from Alex Chalk, the Secretary of State for Justice, stating that the UK Government no longer has any plans to repeal the Human Rights Act. How does that then weigh against what is happening with some individual legislation? On the Illegal Migration Bill, and I appreciate it is still probably a fairly fast-moving situation, does Ms Kilpatrick have any read-out from the implications of the UK Court of Appeal judgment that essentially dismissed the Rwanda scheme from the Home Office, although it is currently being appealed, potentially to the Supreme Court, and what that means for the way forward? Does that then recreate some further risks that the UK Government may seek to pull away from the convention?
Will Ms Kilpatrick also talk about the international standing of the NIHRC and the potential jeopardy in that regard arising from the funding challenge? Will she explain how some of the work on Article 2 is ring-fenced under the protocol-Windsor Framework, while other aspects of the work of the commission, by contrast, are not given the same respect, for want of a better term, by the UK Government?
I will go back to the issue of the common travel area, and probably the interface with the Illegal Migration Bill and what is happening with electronic travel authorisation. As the UK diverges, in many respects, from good practice around the CTA and international human rights standards, is there potential for more tension to arise between Ireland and the UK on how borders are managed, as they move in different directions on how all this is managed?
I apologise to the other witnesses. Unfortunately, my questions are probably for Ms Kilpatrick but I welcome other views as well.
Ms Alyson Kilpatrick:
I will address the matter of the Human Rights Act versus the Bill of Rights Bill. The Bill of Rights Bill was essentially to replace the Human Rights Act and rebalance, as was said, human rights. The statement has been made that it is not being proceeded with. However, as Dr. Farry rightly said, that was in the context of it being taken forward through other legislation. It was being split up and shared across all the legislation. I am sorry that I cannot think of a less vulgar expression off the top of my head but, in many ways, "to skin a cat" is what it struck me as. It is just a different approach.
Following both the House of Lords' rejection of the Illegal Migration Bill and the Court of Appeal decision yesterday, I suspect a pull-away from the convention will be exactly the response. It is almost inconceivable that the UK will actually try to leave the convention, but I thought detention without judicial oversight was inconceivable until recently so one does not know. It seems there will be a motivation; let us put it that way. CTA and ETA issues play into that.
On the management of borders, without going into the details and ins and outs of it, including what British and Irish citizens will be asked for, the basic fact of the matter is they may be asked to show that they do not need any of these documents. How will they do that? How will they show that they do not need a document but have some other document to show that the more official document is not needed? That is bound to have an impact. Even if it does not have an impact on crossing the Border, even if we knew where that Border actually lies when we drive up the road, it will have an impact on both sides of the Border, potentially. It will certainly make people think that it will. That is also one of the chilling effects. People will be inclined to carry identity documents, at least, with them.
All of that is also relevant to what Dr. Farry was leading to regarding our upcoming accreditation or reaccreditation with the UN committee, which is what essentially gives us our status on the international stage and within these islands. Currently the NIHRC is an A-status organisation, which means we have speaking rights and are assessed as being a trusted interlocuter, etc. The IHREC has A status, which it has just renewed. The Equality and Human Rights Commission, EHRC, and the Scottish Human Rights Commission also have A status, which they have renewed. We have been under-resourced to such an extent that I had to give evidence to the UN committee on our last consideration that I could no longer guarantee my independence and that I was running an independent organisation. The point I made to that committee, and it remains the same today, is that unless and until we can determine how we spend our money or, in other words, which investigations and cases to bring, we cannot be truly independent. We may be structurally independent but if we are stripped of all our capacity and resources, we cannot do very much with our independence. That is the situation we are in.
Some on the accreditation committee believed we were not potentially fit for our A status. We will go back in October. We have been deferred for the final time because I asked the committee to give us another six months to work with government. I got a commitment that the Secretary of State would ask for financial security for us along the terms I suggested, namely, that we have a baseline review of the commission, but that has not materialised as yet. We are in no better a position today then we were a few months ago. If we lose our status in October, that has very serious implications. It is not just a vanity exercise or about me travelling abroad. It means Northern Ireland will be the only part of these islands that will not have speaking rights. It is those speaking rights at international events that enable us to hold government to account beyond our local courts. It is very important.
We have had an independent review, which is yet to be published. We would like to see it published. I do not own it so I cannot say very much more about it, but we think the independent review should be published. Does that cover all the bits of Dr. Farry's questions?
Dr. Stephen Farry:
I will put on record, and I am sure other committee members will echo this, that all human rights commissions are crucially important but in the context of Northern Ireland and the range of issues, there is a particular importance and context to that. The NIHRC is also a direct product of the Good Friday Agreement. As the Oireachtas committee on the implementation of that agreement, it is important we take note of what Ms Kilpatrick said around the potential risks and dangers to the position of what is one of the core institutions under the agreement.
Ms Alyson Kilpatrick:
I thank Dr. Farry. I will leave the matter with this additional point. Central to the setting up of the commission, which was to secure the peace process as set out in the Good Friday Agreement, was the independence of the commission. All of the talk at that time was about independence and structural and financial autonomy. Without it, we are not a human rights commission as envisaged by the Good Friday Agreement. We need to be the ones who are at least taken seriously when we say we do not have enough to do our jobs properly.
Dr. Stephen Farry:
Flowing from that, we are stressing the importance of interplay between what happens with regard to human rights protections and other aspects of the Good Friday Agreement, notably policing reform and criminal justice reform. Those are all interdependent to a certain extent. There is a particular interdependence in the Northern Ireland context.
Ms Alyson Kilpatrick:
I overlooked that Dr. Farry asked about the dedicated mechanism budget and the core budget. The dedicated mechanism budget is ring-fenced. We could always do with more but that is not where our problem lies. Our problem lies with the funding of our core work, which is all human rights stuff, as per the Good Friday Agreement.
Fergus O'Dowd (Louth, Fine Gael)
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I thank Dr. Farry. That point was well made.
Niall Ó Donnghaile (Sinn Fein)
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I thank our witnesses. The difficulty for me is that there have been many good questions and responses. I have to compliment the witnesses on the comprehensive and informative presentations they made today. It is very useful for all of the reasons that have been outlined today. Before I get to the two points I want to make, I want to say that the issues the witnesses are raising about human rights, whether the failure to implement the Good Friday Agreement-related aspects of human rights, or the further diminution of rights as a result of Brexit, are felt personally. They are felt by people. I know the witnesses know this. It is not all academic stuff on a page. There are of course more vulnerable members of our society. We have spoken about migrants, refugees and minority groups who feel this acutely daily. Collectively, society in the North, given the conflict and the promise of the Good Friday Agreement and the peace process, feels the failure to implement those commitments and rights. As someone who moves between both jurisdictions, I am quite acutely aware of the divergence and the need for, not least, things like the all-Ireland charter to be resolved and for that synchronisation and harmonisation to take place.
The witnesses have covered all that and I will not take up all the time. If this is beyond their remit, they can just say so. If the legacy Bill proceeds as is, given its questionable legal standing, never mind moral standing, should the Irish Government take an inter-state case to protect the rights of victims and survivors?
This question is probably more for Ms Gibney. As Senator Currie said earlier, committee A is looking into the issue of the common travel area, electronic travel authorisation and the impacts of that. Is there potential, as an offshoot of that legislation, for a need for legislative changes or tweaks in this jurisdiction? I will give the example that was cited to us by the Tourism Alliance. As happens quite regularly, if people get off the plane in Dublin Airport, get into a taxi and tell the taxi driver they want to the driver to bring them to the Europa Hotel in Belfast, is that taxi driver required to ask if people have their visa? Are drivers required to ask if people know they need a visa and tell them how to go about it? If they take such a person to the Europa Hotel, have they transported someone over the Border illegally? All of this is hypothetical and difficult to get our heads around sometimes. There are even issues such as insurance. If a coach provider based in Donegal wants to organise a golfing tour around the whole of Ireland, including the Six Counties, how is that company protected as a consequence of legislation that is being driven and implemented in another jurisdiction?
Ms Sin?ad Gibney:
I will take a couple of the questions. I will touch on the legacy issue too. Essentially, we have been cautious about commenting or venturing towards commentary on the UK legacy Bill, because it is very unusual for a commission with our remit to comment on legislation outside our jurisdiction. However, we are concerned that there will be a potential implication for political parties across our islands and indeed many other civil society groups and others. There is broad agreement on that. At the joint committee, we met again in April for the first time in a little while. Our focus at that meeting was the legacy Bill. IHREC is seeking legal advice on that matter. We plan to establish a position on the implications or potential implications of the UK legacy Bill for people in Ireland. That is our state of play. I hoped that we might be further advanced by the time I appeared before this committee today but unfortunately we are still in the process of getting that legal opinion. It is something we will comment on in the future.
Niall Ó Donnghaile (Sinn Fein)
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It would be helpful and I am sure Ms Gibney will keep us informed of that going forward.
Ms Sin?ad Gibney:
Absolutely, Senator. We will of course. I will let Ms Kilpatrick deal with the inter-state case and comment on that. I do not have an immediate answer on the potential legislative changes except to say once again that simply putting the common travel area agreement on a statutory footing is something we have long called for and would continue to propose. It will address many of those issues. I think it would be approached a little differently now in light of the electronic travel authorisation, ETA. The Senator talked about examples including insurance issues and the taxi driver. We are hearing about concerns from civil society. We are in regular contact with the Committee on the Administration of Justice about the potential implications of the ETA, as well as the Irish Council for Civil Liberties on this side of the Border. We are live to it but have not yet put forward any potential legislative proposals or indeed amendments to existing Irish legislation that would help to address that. We will keep it on our radar.
Ms Alyson Kilpatrick:
I am not going to say whether the Irish Government should. I can answer whether it could. It absolutely could, procedurally and substantively. It would have the right to claim that another state is in breach of its European convention obligations. It does not have to be directly affected to do that but the Irish Government would be directly affected. One only has to think of cases relating to the Glennane gang, the Dublin and Monaghan bombings and so on. There will be a direct and immediate impact of the legacy Bill if it becomes an Act south of the Border, so the South would also be affected. One of the considerations for an inter-state case is that it could be brought much more quickly. If it was left to an individual to challenge it, that could take a very long time indeed. There are benefits to an inter-state case. There was a conference recently on inter-state cases. There is a Professor Risini who is the expert in this area. Somebody in the Irish Government could consider taking advice from someone like that. I would not ever say what the Government should do but it certainly could do it. I know there are calls for the Government to consider doing it.
There is a cross-border obligation to comply with Article 2. As things stand now, there is an obligation for disclosure of information but I understand that is currently being blocked. It would further be blocked by this legacy Bill. Just when progress was beginning to be made by a statutory instrument here, to enable disclosure to the Northern investigations, that would be blocked by this. There is an immediate impact.
Ms Sin?ad Gibney:
Can I jump in on this? There is something that I did not get to answer when replying to Deputy Conway-Walsh's question, and this is Sinn Féin speaking time.
In the context of her questions on how our work can be better leveraged by Members of the Oireachtas, I reiterate a call that we have put out since 2016, which is for the establishment of an Oireachtas committee on human rights and equality. We believe that would provide an appropriate link between our organisation and the Oireachtas, to which it is directly accountable; not to Government or a Department, but to the Oireachtas. When the Assembly is functioning, we envy the strong relationship that I see operationalised between the NIHRC and the Committee for the Executive Office within the Assembly that we do not echo here in this jurisdiction, where we are invited before specific committees, as I am today, to provide human rights and equality insights. However, we do not have that established mechanism, which I believe is appropriate under our legislation and the direct accountability that we have. I reiterate that call for the establishment of a committee or, if a committee is not feasible, another mechanism by which we have that stronger link between us, as the national human rights and equality institution, and the Oireachtas.
Fergus O'Dowd (Louth, Fine Gael)
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That could be given to the Committee on Justice or whatever as part of its brief. Is that Ms Gibney’s point? Or does she think it would be more onerous than that and it would need a separate-----
Ms Sin?ad Gibney:
We have called specifically for human rights and equality. I think it was packaged into human rights, equality and diversity as a potential committee. I appreciate that committees do not get established easily or quickly. The difficulty with a departmental level one is that it reflects that departmental line of accountability, whereas it is the broader Oireachtas that we are accountable to.
Fergus O'Dowd (Louth, Fine Gael)
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What I meant was that the IHREC would have a committee that would be responsible – whatever the body. Our committee has no statutory remit as such.
Niall Ó Donnghaile (Sinn Fein)
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Yes. We have no line Department as such either.
John McGahon (Fine Gael)
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Following up on that point, some of our Oireachtas committees, as where the Chair mentioned the Committee on Justice, for example, have sub-committees set up under them. Within the Committee on Health now, there are sub-committees on autism and mental health, for example. I like the concept of it. It would make sense where a committee would be able to look at human rights across all sectors of Government and Departments, whether it is the climate action, justice or health committees. I like that concept and I think it would provide a greater link for the IHREC and the great work it does towards the Oireachtas.
I have a couple of questions. In Ms McGahey’s opening statement, she talked about the European accessibility Act. Obviously, there is good legislation still going ahead at an EU level that is working for us here and elsewhere. When up against a Conservative Government that has such a horrific approach towards the European Union and everything that is happening there, does she not find it extremely difficult to even see where a law that just makes sense or benefits everybody in society is still very difficult to get across to people in the British Government because of its huge antipathy towards the European Union? How does she deal with that? Is it just a case where she feels like she is constantly trying to bang it down? How does the Equality Commission for Northern Ireland deal with that?
Ms Geraldine McGahey:
That is a good way to describe it sometimes. The equality commission has been calling for law reform on so many different aspects of equality for many years. I do not think that we can entirely blame Westminster for this. Our own Assembly has failed to introduce any legislation from an equality perspective since it was set up, except on foot of a private Members’ Bill. That is not an appropriate way to run Government. All we can do is keep lobbying to have the programme for Government include these issues. I have spent this past year talking to political parties to ensure that this remains high on their agenda. We will keep lobbying, advocating and applying pressure. We have an opportunity to take legal action where the UK Government has failed to live up to its commitments, but that is in relation to annex 1 - the six directives. In this particular case, the accessibility Act falls outwith of that and, therefore, is not as straightforward. However, it is important to everyone in Northern Ireland and our disability legislation does require reform. We will be attempting and endeavouring to ensure that the aspects of this Act that strengthen what people in Northern Ireland have are incorporated within the reform of disability legislation.
John McGahon (Fine Gael)
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This is the real tragedy behind everything with the Assembly not being up and running, not even in the recent impasse, but even over the past ten or 15 years where basic legislation that makes everybody’s lives that bit easier, that is not controversial, that is the right thing to do and that no one of any political persuasion could either agree or disagree with is just being left high and dry as a result. As a slight follow-on from that, when Ms McGahey said that even throughout her whole time with the Assembly when it has been up and running, she has found a reluctance to engage in some of those issues, despite the Equality Commission for Northern Ireland engaging with all political parties. Again, I am not asking her to name any political party, but has she found that what they are telling her when she is meeting them one to one or with their spokespersons, what they are saying to her and what they are doing at national level just does not tally? Why is there such a reluctance from political parties in the North to engage on basic legislation such as this that has been raised and makes sense?
Ms Geraldine McGahey:
The programme for Government for each term of the Assembly is a comprehensive list of actions that it wants to take. It is fair to say that over the lifespan of the Assembly to date, it has been more out of function than in function. As a consequence of that, the programme for Government slips. I mentioned earlier that we made progress in the past in respect of age discrimination and then fell on final hurdle. In that particular case, there was a different view on a policy aspect of that proposed legislation. The Assembly ran out of time because its term came to an end and elections interfered. I have to be fair to it and say it has not had a full term of office to be able to progress many of these things. It is not simply just equality legislation or human rights that gets impacted, rather it is across its whole spectrum of legislative progress.
I would not identify one political party more than another. They have different views and they need time to be able to find that common ground to be able to endorse something. In some of the dialogues I have been having over the past number of months, there would be more reluctance, it appears, to progress a single equality Bill because it is likely to cause a degree of diversion. Whereas with simple issues – I use the word loosely – such as disability or age discrimination, people might be able to buy into that more readily and we might have more hope of being able to get legislation over the line. I am prepared to take it whatever way I can get it. That is the angle we will be taking moving forward.
John McGahon (Fine Gael)
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On the aspects of racism and the increase in racism after Brexit, we have certainly seen an increase in hate crime throughout the UK. We can see it on social media. It has become increasingly prevalent as political discourse, particularly in the UK, has become more polarised. Could Ms McGahey speak to me about that in a Northern Ireland context? For example, the people and ethnic minorities that she has interviewed as part of her survey were able to say that they have experienced this hugely in the past couple of years. Would it be possible for her to outline where those examples are? How does that happen? For example, is it comments on public transport or on the street? Is it discrimination when they are trying to go for jobs or employment opportunities? Where does that racism manifest itself and what are some day-to-day examples?
Ms Geraldine McGahey:
Everywhere. It is horrible to hear a mother talk about having to try to explain to her four-year-old child why their four-year-old neighbours will not play with them any more. That is inappropriate. Four-year-old children are learning that from adults; they are not born with those ideas. It is the responsibility of all of us in society to address racism. I think hate crime and racist events are very much under-reported. A strengthening of our hate crime legislation would certainly help address that.
Our employment legislation, while it is strong, could be further strengthened in the racial aspects of it. That is part of the reform of race legislation that is currently being consulted upon.
We remain hopeful that all of the aspects, which we had sought to be reformed and improved within our race legislation, will be delivered as a result of the current consultation exercise, provided, of course, that the assembly is up and running and functions for a full term and allows work to progress without reaching yet another obstacle.
John McGahon (Fine Gael)
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The common thread in all our witness comments is that none of this can progress while an assembly is not up and running. I know we discuss this regularly in this committee and in the Seanad, as Senator Ó Donnghaile is aware. It bewilders me to think that in 2023, in a modern functioning democracy, we have somewhere like Northern Ireland where over the past 20 years the Assembly has not been functioning or up and running for legislators to do their job more often than it has been functioning. It is something one would expect in far-flung parts of the world, to be quite frank about it. As a result, basic legislation like this, which makes everyone's lives better and contributes to a more constructive society, is being forgotten about. As Ms McGahey has said, when it comes back for ten or 12 months, bigger issues - I do not mean to diminish the issues which concern our witnesses - around the economy or whatever will be addressed. As a result, the concerns of our witnesses get repeatedly pushed down the list and real issues develop in society as a result. If they are left unchecked for a number of years, they become very big issues, as mentioned by our witnesses, with respect to racism, etc. I thank Ms McGahey for that. I really appreciate her being able to provide that insight into the types of racism which people in Northern Ireland are experiencing. It is very important to have that on the record.
Fergus O'Dowd (Louth, Fine Gael)
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I thank Ms McGahey very much for her contribution. I have a different question for her. It may not be relevant to her work but it is a question which is relevant to me, as a person with grey hair who is not in the youngest cohort of people in the world. Ms McGahey speaks about ageism and of it being a very significant issue. The older and the greyer one gets, the more one becomes aware of certain things. We need to-----
Niall Ó Donnghaile (Sinn Fein)
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The grey hair is not limited to An Cathaoirleach.
Fergus O'Dowd (Louth, Fine Gael)
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I am talking about in the South. I am not going to sing a song over here; I just want to make a point about positive ageing and affirming the importance and value of older people, people with disabilities and minorities. This is something that is perhaps lacking in how we deal with these issues in public discourse, in our society and in the way the press deals with them. I do not know if our witnesses have a view on that but I certainly have.
I also want to follow up on a more pertinent question. Systems sometimes work and sometimes they do not. Care of older people in institutional care is a big issue for me. We recently had a case, and I will not go into the details here, where the rape of an older resident occurred and the Garda is now investigating it. There were at least 20 other cases, and in fact 22 cases of physical and-or sexual abuse. The law deals with that. The regulator deals with the regulation. The HSE deals with the situation but we need a vindication of people's rights which I believe are being trampled upon in this situation.
Where does one go to vindicate and how are the rights of those people vindicated outside of the due process of the law? Do we not need a statement from the appropriate body with respect to how evil this is and how our society must change? What role, if any, do our witnesses have in that regard? If the bodies our witnesses represent do not have these roles, to whom should we go?
Fergus O'Dowd (Louth, Fine Gael)
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Right, yes.
Ms Geraldine McGahey:
The big argument is that there is experience to be gained from older people, which is the positive aspect of that legislation. That is something we will also continue to promote. Older people deserve to be treated better and not eliminated, kept out or excluded from particular services.
On institutional care and care homes, we have not yet had an issue to address although I am aware of a particular instance where, I believe, there was a sexual assault on a resident by another resident at, perhaps, a dementia unit. That takes into account and brings into play safeguarding issues,-----
Fergus O'Dowd (Louth, Fine Gael)
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Of course, yes.
Ms Geraldine McGahey:
-----the policies they have in that regard, and how those are being monitored and implemented. It is out of my remit as Equality Commissioner because of the legislation. Perhaps my colleagues may have more to say on this matter. I am, however, aware of the circumstances of those cases.
Ms Sin?ad Gibney:
I thank the Chair for his questions and comments. It is a little off-topic but I would like to mention my experience in a previous life, when I worked in a corporate sector of social responsibility for a tech company. Our programme was focused on older people and specifically on digital literacy for older people. I consider it a privilege of my life that in my mid-30s I was exposed to understanding ageing and age discrimination more deeply. It engendered a much more positive outlook in me and an appreciation of the way that society simply has just not caught up with the concept of ageing. For example, I remember at the time figures being kicked around that 65 was set as the pension age, when life expectancy was 70. At the time - this was about ten years ago - the first person had been born in the UK who was expected to live to the age of 130, which very much said that half of that person's life was going to be on the State pension. As a society we just do not and have not yet come to appreciate ageing and "positive ageing", as the Chair has described it. It is a very important area.
Within our own organisation, we are placing our attention on this. One of our strategic priorities is around future-proofing. This veers into the Chair's next question about institutional settings. During the pandemic, we were particularly concerned that the voices and experiences of certain groups were very much not considered in both the impact of the pandemic itself but also in the crisis response measures which were introduced. I am speaking here about prisons, nursing homes and so on. We very much want to do all we can to raise questions about how the Government and the State can better respond to sudden crises like the pandemic and longer-running crises like the climate crisis. We must ensure those voices are heard in those responses and are not just thought about later on as part of an inquiry, etc.
Specifically relating to safeguards and so forth, I fully agree with Senator McGahon's interesting comments about the difficulty that people in Northern Ireland must feel, together with the frustration on legislation which is not progressing. It is important to acknowledge that we have a record in this jurisdiction - here in the South - with regard to the delays we have experienced in legislation which provides those safeguards and protections. The Assisted Decision-Making (Capacity) Act and the Disability Act both very much lagged behind in their implementation and in the understanding of the rights-based models for disability which those Acts would put in place.
I cannot make a committee appearance without calling once again for the ratification of the optional protocol on the UN Convention on the Rights of Persons with Disabilities which will introduce better access to remedies and justice for people who find themselves in those settings, for example, among the broader disabled community.
I would like to mention something of which the Chair may or may not be aware. Legislation which is going through the Houses of the Oireachtas - the inspection of places of detention Bill - will introduce a new mechanism called the national preventive mechanism, NPM, under the United Nations Convention against Torture, UNCAT. IHREC will be designated as the NPM co-ordinator. Each sector will have an NPM. The justice sector will have the Inspector of Prisons with an extended remit to go beyond prisons into all justice-related areas. The likelihood is that HIQA will be in charge of nursing homes and direct provision and the Mental Health Commission is likely to be in charge of institutions relating to mental health. There will be a number of mechanisms and then we will be the co-ordinating body which brings together that work. The UN has said that the introduction of an NPM is one of the biggest factors for safeguarding and protecting the rights of people in institutional settings. During the Covid-19 period, although it was a success story in infection control, we saw a real erosion of the rights of prisoners and their families. Those kinds of things do not happen with NPMs because it is very much a preventive mechanism. It is not just about the one-off inspections we see; it is a much more collaborative effort to work with those organisations, institutions and sectors to ensure that where there is a power imbalance between the State and residents in such settings, their rights are protected and safeguards are appropriate, in place and enforceable. The NPM will make a difference and we await the implementation of that legislation.
We are very interested in Ms Gibney's commentary. My point is that the rape occurred during Covid. Ms Gibney is quite right. Anyone who was in a nursing home across the country could not have visitors because of Covid and the regulations. Obviously, the vast majority of places were extremely well run with very professional staff but it has not always been the case. HIQA failed to find the issue. These people's rights have been abused so how do we vindicate them from a human rights perspective? I am trying to think out loud. I accept all the good things Ms Gibney is talking about. They are all positive but there is a need for a definitive statement about all of this. It may have to be at the end of an inquiry process that has commenced. I am not happy to leave it like that. I am not suggesting Ms Gibney is happy to leave it that way either. How can we say as a society authoritatively, through the human rights organisation, that this is an abuse of human rights? I do not know if this can prompt an answer.
Fergus O'Dowd (Louth, Fine Gael)
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I am not suggesting it should have. I am not drawing Ms Gibney into that. I am just saying our society needs to say something on it and we need to demand that this never happens again. I am not criticising or implying anything here but a human rights statement from the commission is hugely important in making politicians, administrators and everyone with accountability step up to the mark. That is the deficit that is there.
Ms Sin?ad Gibney:
As the Covid inquiry is being established and terms of reference are being set, it is really important, and we have learned this from other jurisdictions very close by, that human rights and equality feature in the terms of reference and not as a work stream within the inquiry or a future thought. We have corresponded with the Department of the Taoiseach on this. I would encourage members to exert their influence in that area in ensuring that it is really baked in from the start and a part of the process.
Fergus O'Dowd (Louth, Fine Gael)
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I raised that with the Taoiseach last night. Obviously, people will always say the year has come and gone and we still do not have our inquiry, which is a major issue for me. It should be up and running and wide consultation should be happening. It is not good enough that it is not there when other countries are well advanced in looking at all the issues.
Fergus O'Dowd (Louth, Fine Gael)
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Of course.
Ms Alyson Kilpatrick:
Even if someone is frail, infirm, vulnerable or ill, human rights still attach. If you are going to limit anybody's rights, for example, those in treatment in a care home, you have to justify it in that individual case rather than using a blanket policy that because it is more convenient during a pandemic, you lock everybody out even if it is not necessary and proportionate. Older people have the same rights as I do. If anybody is going to treat them differently because they are older, the law requires that to be justified. There is a stepped process under the Human Rights Act.
In terms of vindicating rights, you can bring claims for breach of human rights. What the Cathaoirleach is talking about is not just a criminal offence, it is one of the most fundamental breaches I have ever heard of. It does end in damages and potentially remedies against the providers of the facility. Here you have the European Convention on Human Rights Act, which allows direct access to the county courts at all levels. The statement is a very easy one to make. Older people have the same rights as anybody else.
Fergus O'Dowd (Louth, Fine Gael)
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What I mean is vindicating that; in other words, this will happen again if we do not make sure it does not happen.
Ms Alyson Kilpatrick:
That is why the court process might be the answer to that. An individual case can set a precedent for all other cases. With regard to people being locked out during Covid and, therefore, unable to see or supervise what might be happening to their loved ones in a care home, it may be able to set guidelines and precedents. Even one small case can do that.
Fergus O'Dowd (Louth, Fine Gael)
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Another issue is families in crisis about the deaths of their relatives in care homes during this period and the refusal of the State so far to inquire into what relatives believe are the issues surrounding the deaths of their loved ones. This is a major issue.
Ms Alyson Kilpatrick:
We talked about Article 2 of the European Convention on Human Rights in the context of legacy issues but that also confers a right to contemporary independent investigation so anyone facing that situation should request an Article 2 independent investigation into the cause of death and circumstances surrounding the death.
Fergus O'Dowd (Louth, Fine Gael)
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Could Ms Kilpatrick send me that information? That is the answer I want.
Fergus O'Dowd (Louth, Fine Gael)
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I agree that people should not have to wait. That is very good. I note the witnesses' conclusion and what they want us to do and I have no doubt we will do it. The clerk will make sure that we will raise those points at the appropriate level with vigour. I thank the witnesses for coming before the committee and answering questions.