Northern Ireland Scrutiny Committee

Wednesday 1st July 2026

(began 3 months ago)

Share Debate
Watch Live
Skip to latest contribution
This debate has concluded
10:45
None Portrait Speaker 1
-

In a Parliament where today, holding our fourth public evidence session on an inquiry, this public meeting of the Northern Ireland Scrutiny Committee. Our sixth meeting of this session into article two of the protocol Windsor Framework, the so-called diminution of rights provisions. We are fortunate to be joined today by senior representatives of the Northern Ireland Human Rights Commission. Alison Kilpatrick is the Chief commissioner at the Northern Ireland Human Rights Commission. Eilish Hoey is director, human rights after EU withdrawal at the commission, and Doctor Clare McCann is the senior policy and research officer at the commission.

You're all very welcome to our committee and we very much look forward to your evidence. We'd be grateful if. When you first speak, you introduce yourselves briefly and declare any relevant interests in relation to the inquiry. Today's meeting is being broadcast and a verbatim transcript will be taken for subsequent publication. The transcript will be sent to you as witnesses to check for accuracy, and I refer to the Register of Members Interests as published on the committee website. We've just been joined by Lord Thomas of Gresford Online, and I will turn to starting the questioning.

So the first question is prior to Brexit, how were the RCO provisions of the Belfast Good Friday Agreement protected?What was the Northern Ireland Human Rights Commission's role in this?How does this differ from the Equality Commission for Northern Ireland, from whom we have heard in this inquiry?And how does this differ from the role of the equality and Human Rights Commission for England, Scotland and Wales?Um, so there we are. Who's going to answer?
10:46
None Portrait Speaker 2
-

I'll start. Thank you Lord. Thank you very much for having us. We very much welcome this inquiry and the opportunity to contribute to it. So to start with, how they were protected prior to the Windsor framework, the Belfast Good Friday Agreement was not in itself supposed to be a piece of legislation to be enforced directly. What it was, was an agreement to compromise um, which then was attached to um as your lordships. Know the uh.

Bilateral treaty which became the Northern Ireland Act, etc. it was underpinned however, and this is the crucial bit by incorporation of the. At a time when everyone knew what that meant, they knew the scope of the Echr and they knew what the Human Rights Act would mean in relation to public authorities, uh, scope, but also the boundaries to what they could and couldn't do. Role within that, we were set up under the Northern Ireland Act and as part of the Belfast Agreement to advise to enforce to in.

In one way, it was described in Hansard at the time was to keep the government on the right path. Despite um the. Government's intentions and I say that at this stage because sometimes I think it is suggested that we are overstepping. And I just want to make it clear that we do what we were set up to do, and this is how we differ from EC and I and also the Echr. So the way we protect the rights is we primarily.

We advise as early a stage as we possibly can throughout the passage of bills and also after. We can carry out investigations if we see fit. And on the advice we advise, when we consider it appropriate or in response to a request. So if we consider um that advice should be given, we must give advice. We also have to advise on what more is needed to secure compliance with the Echr and under other international treaties, which is expressly stated. It's not just the Human Rights Act, it is institutional treaties properly used to define and interpret the Echr.

If our advice. I'm not saying we're always right, but if our advice is taken in early stage, the idea is that we don't have to go to litigation. We don't have to employ any of our other powers. We work constructively with Westminster and Stormont. We aren't always asked to give advice, but we probably doesn't surprise you. We do try and offer advice, um, whenever we see fit or certainly wherever it's relevant. We think human rights may be relevant.

EC and II has a much different domestic jurisdiction in relation to the equality laws. It doesn't have a UK wide remit in relation to equality and obviously human rights. It doesn't have a role in the same way that we do to promote human rights. So we have a duty, a statutory duty to promote a positive culture of human rights. And we do that through education. We do it through communications, etc. we have a very important programme of work through the schools.

Echr is closer to us, but not identical either. So the powers are slightly different.
10:50
None Portrait Speaker 1
-

In e. Sorry, sorry.
10:50
10:51
10:51
10:52
10:53
10:53
10:53
10:55
10:55
None Portrait Speaker 2
-

I'm. I have a very, um clear. View having I've been in this role for five years, and I have worked very closely with this Chief Commissioner and previous Chief commissioners at the Ehrc and also with my colleague in Scotland, who have the human rights role for Scotland and also in Ireland, the Irish Human Rights and Equality Commission. I have seen how combined commissions work and I've also. I also know how we work separately to EC and I in Northern Ireland. And I can say the um I, I do not think anything has changed that would merit either bringing us within the remit of EC and I or indeed bringing EC within our remit.

It was meant to be Westminster. Um there are a lot of reasons for that which pertain I think. Um but also around the world you see a lot of bodies which have merged in that way. Um losing a lot of the academic study will tell you that what loses out in the end was merged organisations is the human rights component. And certainly if you and this is not pejorative of the Ehrc, but certainly I think they would say that their main task is as a regulator.

And that includes the private sector. So it's a quality regulator less than human rights body. The last thing I would say is also we were the first human rights institution. Um we were set up very specifically with Northern Ireland in mind, and we had slightly different powers to everybody else because of that. But we also on a global stage. So we are now I'm now the, I was elected as vice chair to the Global Alliance of National Human Rights Institutions recently.

They see Northern Ireland very separately, um, sometimes for good and bad reasons, but they see Northern Ireland as separate and also being a leader in a lot of these fields way before my time. So I'm not taking credit for that. But um, so there are lots of reasons and I think the public, I think the public understand why we are separate and why we don't always do the same thing as the HRC or the Irish Human Rights Commission or indeed EC.
10:57
10:57
10:57
10:57
10:58
None Portrait Speaker 2
-

Colleagues will remind me if I forget about the advice on negotiations. Certainly was around at the time, although we lost her for a period of time in between. But she can speak directly to that and I can speak to more recent negotiations. Um, but yes, let me talk about how they relate. You all recall, I know that when um Brexit was being considered, when it was debated, there was real concern in Northern Ireland, but also across the UK and with European partners at what that might do for the status of Northern Ireland.

And the government reassured people in Northern Ireland and in the UK that there is no. There could never be any contemplation of regression of rights, human rights in Northern Ireland that was linked in. In their arguments as well to the um Belfast Agreement, because that Belfast Agreement had at its heart and throughout in all different parts, human rights and equality. That's why they linked it to the Belfast Agreement. What they then went on to say is when Brexit, when when the vote happened, um, that to make sure just, just just for certainty sake to make sure that there wouldn't be a regression, even though they had no intention of progressing human rights in Northern Ireland, they would make it legally binding.

And that's in their own document, their own explainer document. So they themselves tied it to to that. The way we see it is that the those parts of the Belfast Agreement were the that was the in some ways, the political settlement, the diplomacy, which was then seen as the umbrella to continued human rights protection. And that's why the Windsor framework, which which is complicated and technical at times. But it's why that is complicated and technical, but it refers back to something which is much more.

I, I don't want to say the word emotional, but I almost, I almost mean emotional. It's in principle, it's a heading. Um. They human rights and equality have continued to be central to, in our view, the peace commitment, but also just the, the general well-being of all the people of Northern Ireland. Belfast agreement was supposed to be for the rights. And it said protection and vindication of the human rights of all. We know that human rights remain contentious.

They are still sometimes seen as being political, even sectarian in some circles. And I think if that is the case, then we still have more to do to show that that's not that human rights are for everybody, that they don't attach to the status of the individual. Um, it was also at the time, important to remember that Northern Ireland, um, lagged behind the rest of GB in relation to some equality protections and. That was recognised that to bring Northern Ireland up to speed, as it were, that um tying it more closely into the Echr but also the EU directives which had provided parity across the UK was important.

Terms of negotiations, the. Commission was consulted back when I think. Well obviously the commission was was being given powers to do things and needed a budget for it. So it was involved at that stage. It was involved in advising on the remit of its powers, what it could and couldn't achieve, what the government wanted us to do and what the government didn't want us to do. Since then, we advise in relation to the application of Framework article two in relation to any new legislation or policy.

Do you want. Can I ask Eilish maybe to add, because I know Eilish was in the room, um, back then for some of these discussions, Eilish.
11:01
None Portrait Speaker 3
-

Director of human rights after EU withdrawal. And. So I think it's important to remember that civil society, wider civil society, and the Human Rights Commission were involved in discussions at a very early stage with the two governments and with EU officials, in relation to what Brexit might mean in Northern Ireland, given the centrality of human rights to the Belfast Good Friday Agreement, and given the questions that were raised by Brexit, part of that resulted in a very early commitment which was maintained throughout the process. As I think you've heard from other witnesses as early as 2017, it was acknowledged that there was a need to protect human rights as part of the settlement and a commitment seen as early as the joint report of December 2017.

In terms of the no diminution of rights commitment, and part of that reflected an acknowledgement that as as Alison has said, human rights remain contentious in Northern Ireland, and there had been a limited degree of progress since the 1998 agreement. For example, it anticipated the development of a Bill of rights for Northern Ireland, drawing on international standards, and that had not materialised. And in fact, what limited progress had been made since 1998 drew to a large extent, or was was derived to a large extent from the obligations of EU membership.

And that was reflected, therefore, in the preamble to the winds of what is now the Windsor framework, where it talks about EU law providing a supporting framework for the rights of the Belfast Good Friday Agreement. Uh. This meant that this conversation was very important to the Human Rights Commission. And we were not alone. As I said, a broader civil society was involved in that. And then the outworking of that in terms of what the obligation meant, involved us in discussions, because that was critical to the development of our powers.

So the advice and reporting and legal powers and so on, we had to know what that would look like, what those were for in order to develop a proposal for a budget, what the commitment meant, what the government's understanding of its commitment was. So, yes, there were conversations in that regard as to what the detail and the contours of the government understood it.
11:03
11:04
None Portrait Speaker 2
-

I'll take that one. The second bit of that, the. This is the. In many ways, the beauty of being attached to the Echr. It attaches to the whole of the UK, not just all kinds of European member states, but attaches to the whole of the UK. It is not, however, as prescriptive as to require all regions to have exactly the same laws. So devolution happened before my time at the Commission. Um to honour devolution.

There are differences. Sometimes it can be positive, sometimes less so from our perspective, other people may have different view about whether it's an improvement or a decrease in rights. But certainly we would say that the that Brexit and the um I know we're going to go on to this, but since Brexit, there is a risk of diminution of rights. We intervene. We brought the Legal Migration Act case because we feared that if that act was enacted in Northern Ireland, there would be a breach.

The court agreed with us and that case is now stayed pending further appeal. I'm not sure we can point to any breaches as such, but we're working on ensuring there aren't in the future. And just going back to, um, the government's own explainer document, which is, I think, quite important to this as well. Um, what it says is, um, so it ties Windsor framework to the Belfast Agreement, but recognising the unique circumstances of Northern Ireland's history and the need to put rights and equality central to creating a peaceful and shared future in Northern Ireland.

So in that sense, rights are viewed slightly different, even though the substance of rights should be the same across the UK. They're viewed slightly differently and maybe enforced differently in the devolved administrations and in Northern Ireland. It's not just a legal technicality, but it's a it's a government promise. And it was a peace settlement, which hundreds of. Thousands of people have relied on ever since. So not finding a breach so far doesn't mean that there won't be. Or that we're not fearful that there are breaches out there.

Um, and if there are, first of all, what we try to do is work with government, with the executive to remedy the breach. Um, and ultimately we may need to go to court on further cases, but we really do try and avoid that if possible.
11:06
11:07
11:07
11:07
11:07
11:08
11:09
11:09
11:10
11:10
11:11
None Portrait Speaker 2
-

I I'm going to touch very briefly, and then I'm going to pass it over to the person who really can explain this bit of it. Um, they can decide amongst themselves, but I suspect it's going to be my colleague Claire. But just on the sectarian, if I can go back to the sectarian conflict, because it relates to something that we were talking about already, um, I think, um, everyone was surprised that this was the Supreme Court found this to be linked somehow or to be constrained by whatever could be defined as sectarian conflict.

I don't think very many people thought that the Belfast Agreement was about simply resolving sectarian conflict, or that the conflict was about sectarianism. It wasn't about Protestant v Catholic um, in and of itself. So that that came as a huge surprise. And it's also a real concern because what it says is the rights are about the rights of two groups of people in Northern Ireland. Northern Ireland is much bigger than that. And it always was, but it's definitely bigger than that now.

And the great thing about the Belfast Agreement and about human rights generally, which is why the convention was was written into it, is that they apply to every person equally and universally, and all of the rights apply to those people. If somebody had said, I think to the Commission at the time, or any of the civil society organisations, is this about rights?I don't I don't even know how you would describe rights to sectarian conflict. Does that mean people injured in the troubles or, you know, I'm not sure.

But even if you could if you'd asked anybody, I think throughout this whole period of time until the Dillon judgment, whether it was limited in that way, they'd say, of course, of course it's not. And let's read the government's own explanation and what they thought they were doing. And the very last thing I would say is that, um, the um. The Windsor framework looked again at the Belfast Agreement. It wasn't this old dusty document. They looked again and very specifically tied it again to see.

They knew it was rights. Not some other additional sort of sectarian stroke, equality type rights or conflict related rights. And this is very common across the world in these sort of peace settlements. You have a very technical document which incorporates a much a peace agreement, which is political and compromise. And and that's why that's not as precise. And but.
11:13
11:13
11:14
None Portrait Speaker 5
-

Thank you.
11:14
None Portrait Speaker 2
-

Claire McCann. I'm senior policy and research officer in Human Rights Commission working in the Human Rights after Brexit workstream and on direct effects. The committee will be aware that the Supreme Court found that it used this test in the case Law test, which requires that in order to have direct effect in terms must be sufficiently clear, precise and unconditional. So that's the baseline. However, they also used that EU law test in respect of the Belfast Good Friday Agreement, which was obviously that agreement itself is not EU law in the.

Early part of the judgment, they used this EU law test to analyze the specificity, the conditionality and precision of the rights, safeguards and Equality of Opportunity chapter and in the absence of the EU measure, they find that it's generally ruled out as being capable of direct effect, although there are. There is some nuance to that, however, later in the judgment, when they come back and look at those provisions when attached to a relevant EU measure, they do not rule out the possibility of direct effect in those circumstances. So I think there's you need to kind of look at the judgment in the round just to understand how that fits.

And essentially, the court found that it's necessary to identify a clear and precise obligation in EU law by reference to the right safeguards and equality of Opportunity chapter. And and that understanding is pivotal both to direct effect and to the scope of the rights which Eilish will come to in a minute. Um, they did say few things about direct effect, which are useful because there is some nuance and there's some reading you have to do. And they did find that it's Winston framework. Article two is capable of direct effect, specifically in relation to provisions of the annex one equality directives.

And they further found that article two can have direct effect when it's read with other EU laws that fall within the ambit of the EU chapter, providing that Demerol test clear, precise and unconditional is satisfied and. And they also mentioned specifically the eight bullet point rights and indicated they may be capable of direct effect, but they were not raised in the case. So they didn't go into any precise analysis of those bullet point rights. I. Why that's relevant is that while the court dismissed the EU victims directive in the context of the specifics of this case, i.e.

in relation to the wider policy about immunity, they did not rule it out in relation to the possibility of individual prosecution. So they didn't look at it in that context. And and that's. Interesting in terms of understanding direct effect, because while they dismiss some parts of the chapter, um, as being too high of the right safeguards of opportunity chapter being too high a level of generality to be themselves capable of direct effect when they read it with specificity of the EU victims directive, they at least raise the possibility that it would be capable of direct effect, albeit they didn't actually rule on that specifically.
11:16
11:17
11:17
11:17
None Portrait Speaker 3
-

And I.
11:17
11:17
11:17
11:19
11:19
None Portrait Speaker 3
-

Just to come back to the rights in question, I suppose. Was this perhaps illustrates part of the answer in terms of how it needs to be thought about should an issue arise. And so, as Claire pointed out, the interpretation of the RCO chapter really is pivotal because that determines the rights that fall within what the court called the ambit of the chapter. And based on those rights identified, this allows us to identify what are the EU minimum standards that continue to set standards in Northern Ireland.

And this is where the first gap arises in terms of the judgment, because the judge, the the court dealt with three specific paragraphs of that chapter that were put to it. And those paragraphs, as you know, were paragraphs one, 11 and 12. So paragraph one dealt with civil rights and as well as the eight bullet pointed rights. And in this case, on these particular facts before. The court rejected reliance on civil rights, in this case, saying that the paragraph one reference to civil rights was at a general commitment to civil and political rights and didn't cover the specific rights in articles 11 and 16 of the victims directive, you'll recall that's the right to seek a review of a decision not to prosecute and the right to compensation and those very specific situations, the court said no.

That general reference to civil rights didn't cover those particular rights. Now, this doesn't seem to rule out a reliance on civil rights to identify relevant EU law, but it certainly makes it more difficult. Um.
11:20
11:20
11:20
11:20
None Portrait Speaker 3
-

Precisely. So they didn't rule out reliance on article 11. Having mentioned this high level general language, once they read it with the victims directive, they said, we will not we don't feel it necessary because we find no diminution in this case, but we don't really reliance on paragraph 11 of the RCO chapter. It may be broad enough to encompass the particular rights under the victims directive, but there's no diminution in this case. So we won't rule. Um, they do appear to affirm the eight bullet pointed rights in paragraph one.

And the commission has done work with the Equality Commission and published a scope paper, um, setting out the bits of EU law that we feel fall within each of those bullet pointed rights. We also have done work identifying other bits of EU law we think fall within the civil rights commitment. And very importantly, we'd like to talk to the committee a little bit about the connection with the Echr. Because the RCO chapter deals with a wide range of other rights that are not covered by paragraphs one, 11 and 12.

But as I say, the court that wasn't put to the court and the court didn't rule upon it. So, for example, and it's been mentioned already this morning, uh, one of the paragraphs of that chapter provides for the incorporation into domestic law of the Echr. Now, the Commission's considered that carefully with the explainer document. In the long period, we spent two years engaging in detail, commissioning pieces of research, doing our own work, and the paper we produced considered that the ambit of the chapter, in our view, cannot be any narrower than the range of rights in the Echr.

Given that the signatories are. Parties to the agreement had agreed that the Echr should be brought into domestic law. Now, what that means in practical terms is that in the view of the Commission's EU law that bind the UK before Brexit and is relevant to or gives expression to Echr rights falls within scope in our view of the article two protection. To be clear, and this is really important and I think got a little lost in some of the court pleadings. This is not about suggesting that article two can be used to enforce Echr rights as Echr rights.

No article two.
11:23
11:23
None Portrait Speaker 7
-

Yeah, thank you very much. And I declare my interest as chair of Intertrade UK and a member of Co-operation Ireland. Uh, for the record, um, just to go back to the right, safeguarding of Opportunity chapter in the Belfast Agreement and um, the fact that the court decided that that chapter, uh, was to deal with the particular circumstances of Northern Ireland, I think it is important that I push back a little bit, chair, on the fact that it does say in the opening paragraph of that chapter that it is against the background of the recent history of communal conflict.

The parties affirm in particular. And then it goes on to talk about the bullet points. It also deals, as we know, with the victims of violence further on in the chapter. So I don't think it's an unreasonable interpretation for the court to say that this is coming out of what has occurred in Northern Ireland. Uh, pre 1998. And I just wanted to, uh, push back a little bit on that, and I'd be interested to hear your thoughts about, uh, the narrative in that chapter.

Um, but this, um, article two of the Windsor framework did impose an obligation on the UK government. I be interested to hear what you think that obligation is, uh, in the light of the Dillon judgment, we've had various academics giving us their views in relation to their view of the Dillon judgment and its impact on the Windsor framework. And we've had varying some some have said it has cleared up the interpretation of civil rights. Others have said it has made it more complex. So I'd be interested to hear what your view is and the significance of the obligation for Northern Ireland and indeed for the UK government as a whole.

Thank you.
11:25
None Portrait Speaker 2
-

We. Uh, we can maybe split that. While it clearly was recognising the backdrop of the conflict and that those were part of the circumstances, those were only part of the circumstances that required special protection. Because what it then goes on to do is set out rights which clearly aren't related simply to sectarian conflict. So we have, for example, the rights of people to equality, regardless of disability. At no stage did anyone suggest that was somebody who had been disabled as a result of a conflict related injury?It clearly embraced wider rights, but probably more importantly, um, it's understanding the whole point about you may say we would say this, of course, but it's generally recognised that what the Echr does is secure peace, democracy and the rule of law.

And it's across the world that this is often adopted because every right is equal, every person is equal. And that's how you overcome conflict. So if the Belfast Agreement said some people will enjoy rights but not others, I don't think anyone would argue that that would have got us over the hump of the conflict, because that's what some people were arguing was the root of the conflict. Wherever, whatever perspective you're coming from. So this was supposed to be a guarantee that everyone would have access to the rights laid out in the Echr, as interpreted by the relevant court.

I can also say, though, that the um the government itself did not at any stage argue that this was tied to sectarianism, even in front of the UK Supreme Court. So I know it appears in Secretary of State's statement to Parliament, but it wasn't in the pleadings before the European Court. So that was I think it might have been said by one of counsel on their feet, but it certainly wasn't in the written pleadings. So that was news to us. The other thing about with the narrative around the Belfast Agreement, and since is that rights only mean something if all of the rights apply to all of the people, and that means all of the rights to interrelated and universal and the.

Clearly stretched way beyond sectarianism or conflict. Um, and you might say that's, that's reinforced by the fact that the Belfast Agreement and then the Windsor framework set out separately equality directives which were to be dealt with differently to the more general rights, um, the no diminution provision, which was underpinned by the Echr and the Human Rights Act. So we would say clearly it was intended that no diminution of rights meant just that, as at a date in time, the government was saying we never intended to, and therefore we're happy to put in writing the fact that we have.

We will not let Northern Ireland slip behind where it is today, insofar as rights are underpinned by EU law and. Guaranteeing Echr as that sort of underwriting. So um, it is both relevant that there was the backdrop. But going back again to the um. Explainer document, they do talk about the background to conflict in Northern Ireland, but if you read beyond that, um it talks about facilitating rights and all forms of discrimination. All people, all of the rights and sets out right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity, the right to women to full and equal participation, for example.

And so the government understood and was telling people itself that this was much broader than that. It was never confined to sectarian conflict. And the fact that this appeared in the UK Supreme Court judgment, I think, was a surprise to most people. Um, and we certainly, if we had anticipated it, we would probably have put something in writing before the Supreme Court. But we it wasn't there to correct. I also want to say that in terms of the Supreme Court case, um, much focus has been on our participation in it.

We were afforded 15 minutes before the UK Supreme Court. Um, this was not our case. We intervened in it and we're very limited.
11:30
11:30
11:30
11:30
None Portrait Speaker 2
-

Absolutely.
11:30
None Portrait Speaker 1
-

Can I, Lord Dodds.
11:30
11:31
11:32
11:32
11:33
11:34
11:34
11:34
11:35
11:35
11:36
11:36
11:36
11:36
11:37
None Portrait Speaker 6
-

Sorry.
11:37
None Portrait Speaker 1
-

Lord Dodds.
11:37
None Portrait Speaker 6
-

We'll move on to.
11:37
None Portrait Speaker 2
-

That next. There is.
11:38
11:38
None Portrait Speaker 2
-

I spoke, I spoke too long in the second part, I think. Um, but in terms of the. Is it easy for us to advise. No, that's almost easier. Um and to whom it applies. The answer to that is also no. But if the government um if when they wrote the explainer document, they meant that this was a true reflection of what they thought had been agreed. It says the UK government will be legally obliged to ensure holders of the relevant rights, and that if you go back, is all holders of rights, any rights, the rights to bring challenges before the domestic courts and should their challenges be upheld, the appropriate remedies are available and that's when we were given the power to bring our challenges before courts and also to represent individuals and individuals have the right to go before court as well.

So if that is if something has changed, then and clearly the Dylan judgment and Supreme Court has changed dramatically, that framework, then the government needs to decide, does that mean. Then we've been taken away from the true nature of the agreement of the Windsor framework, and if so, do we need to tell our partners, our negotiating partners on the EU and try and come up with an answer that would make a new explainer document?Taking all of that into account would help us. Definitely, because at the minute there are sort of two there are two different things being presented.

Um, and Dylan is so narrow, it is easy to say, you know, Dylan's done. It's, it's binding and we can't argue anymore. But and in some ways we wish that was the case because it would make our jobs an awful lot easier and lives a lot easier, but it's. simply not possible to say that with any credibility. There's so many gaps and what ifs, and even the court themselves say this is not binding in relation to individual cases under the troubles Bill or under the Legacy Act.

Even the court says so even on that narrow ground, the court hasn't ruled out. Um questions. So, um, but to go back to what the government said, it had agreed with the EU and it should be. Enforceable by everyone.
11:40
11:40
11:41
None Portrait Speaker 2
-

I. I think I was unclear, I probably put two things together. So Dylan from the UK Supreme Court, that's it. There is no appeal. So even if it goes to European Court of Human Rights, it doesn't change anything necessarily. And so it won't go on appeal. That's it. It's done. However, there is an interstate case which may which will touch on some of the other issues here. But it's unlikely to talk about or at least we don't know yet.

But it's unlikely to get into the Windsor framework. But the Commission may intervene if there is an interstate case in relation to Echr elements, and it may may become necessary to argue about the Windsor framework. If the court asks us about the um, the effectiveness of a remedy provided in Windsor framework. So I yeah, I apologize if I put two things together. Um, and I shouldn't have done that. There will also be, however, a, we understand an applicant's petition to the European Court of Human Rights and whether or not it goes into Windsor framework, I don't know, but it's not really the European courts business to determine Windsor framework.

There may be a reference to the Court of Justice of the European Union. Um, if that's the case. All of that is um in many ways we see that as a very blunt instrument and a very costly way of trying to sort this out. So the best approach would be firstly through the UK government, because that is the whom we report and advise, and we will do what we can um to work out with them what it is. Firstly, what is, what is intended.

Um have they achieved what was intended and is it enforceable and are the powers given to us relevant and practical and can we make use of them or do we need to ask for different powers?Or do we need to limit our powers completely?If it's not intended that we bring cases, then maybe they need to clarify that as well. In terms of the, uh, talking to the Irish Human Rights and Equality Commission, we haven't yet, other than I think it came up over a cup of coffee over a week.

So we have this joint committee. Um, but just in very general terms, it is on our agenda just for full disclosure, um, for a July meeting. Um, but it will just be keeping each other informed because as you know, the Irish Human Rights and Equality Commission has a role in the island of Ireland, aspect of dedicated mechanism. We haven't met or discussed with the EU yet. We I'm sure we will at some point, but we. What I should make clear is we don't see it as our job to persuade any of those parties to take a particular position other than in pursuit of the actual agreement and proper interpretation.

I say. I know it's probably an unhelpful way of answering this, but it is the truth. The Supreme Court only takes us so far. What we are still left with is an agreement, um, which is either honoured or not and was either meant to be enforced a certain way or isn't. And that's still on the table. That agreement is still there. We will help the government work out what it wants to do. It is only in a statement post that the Secretary of State alluded to the fact that they always believed that.

Agreement was about ending sectarian conflict, um, that they may well have done. We didn't understand that to be the case. We didn't know. We hadn't heard that before. Um, but if that's right, then we need to work with them and we need to, we need to sort this out, but we're not sort of, we're not going off in other directions yet. We want to know exactly what it is we're supposed to do. Um, and obviously we will advise because the, as I say, the function we were given only makes sense if what we say about the applicability of the Windsor framework is right.
11:46
11:46
11:47
None Portrait Speaker 8
-

Thank you very much.
11:48
11:48
11:49
None Portrait Speaker 1
-

Lord Hain.
11:49
11:49
11:49
None Portrait Speaker 2
-

Yes.
11:50
None Portrait Speaker 1
-

Yes.
11:50
None Portrait Speaker 2
-

You've almost invited me to say another sentence, which I hope you won't regret. Um, so long as it actually is based on an analysis. It's not just a statement. What we find there have been human rights memorandum and statements in the past, which don't appear to be accompanied by analysis. So it's only good if you can. And presumably the relevant minister wants to be able to stand over the statement. And in relation to Windsor framework.

So they must have undertaken other officials undertaken analysis. What we're saying is we would like to see it as well. And if you made it available to all those who are interested in this, that would be a great benefit because it focuses the mind, but it also tells other people that they're taking it seriously. So yes, human rights statement and also Windsor framework statement. And from the beginning, we understood that is what was going to happen. And the Cabinet Office guidance actually was amended to say, you know, this is very important.

You should take this into account in legislation and policy. And we're again, we're saying we're simply sort of putting it back to them and saying you thought it was important. And we agree. Um, and it hasn't become less important in terms of the, um, uh, routine and formal. Yeah. We do, I mean, we, it has got better and better. I have to say, we do talk regularly, um, to officials. We think they're.

Would come to us more often and more formally to ask for advice. And they don't, you know, they don't have to always follow our advice, but at least a discussion on it and where we're coming from would be really helpful for us. And we think, you know, good grace, it would be helpful for them too.
11:52
None Portrait Speaker 3
-

Yeah.
11:52
11:53
11:53
11:53
11:54
11:55
11:55
None Portrait Speaker 3
-

Yeah.
11:55
None Portrait Speaker 2
-

So there.
11:55
11:56
11:56
None Portrait Speaker 3
-

And.
11:56
11:57
11:57
11:57
11:58
None Portrait Speaker 7
-

Yeah.
11:58
11:58
11:58
11:58
11:59
11:59
12:00
12:00
12:00
12:01
None Portrait Speaker 2
-

Would be very happy.
12:01
None Portrait Speaker 3
-

To, if.
12:01
12:01
None Portrait Speaker 8
-

Yeah.
12:01
12:01
12:02
12:02
12:02
12:02
12:03
12:04
12:04
12:04
12:04
None Portrait Speaker 3
-

So first of all, the the court in Dillon applied, as was mentioned earlier, a three stage test, uh, not dissimilar to what we proposed ourselves and have in our scoping paper. So it starts with the analysis of the RCO chapter. Is there a right safeguard equality of opportunity protection engaged. Second step to look and see what the EU under EU law underpinning was?And did it have legal effect at the time of Brexit?And the third step then to look at has there been a diminution of that right.

That wouldn't have been permissible had we remained in the EU. So that test is something consistent with what we had previously advised and remains in place. Important in terms of our role. The Commission doesn't determine a breach, but that's the kind of analysis we would conduct when we see legislation or policy or have a client come to speak to us. Our job is, of course, to advise government on compliance with its existing commitments. And, as we've said, to be useful, that advice needs to be listened to and considered as at an early stage, if possible, to preempt or avoid litigation becoming necessary.

So should that not be the case?Of course we do. Then have the power to initiate support or intervene in in litigation. I can walk through an example if there's time, chair, if you wish to. So one example that comes to mind is in terms of the issues for victims of human trafficking. So under. Um, so the commission considers that the EU Human Trafficking directive of 2011, not the more recent one, but the 2011 one we think falls within the ambit of the RCO chapter for three different reasons.

First, on the basis of right article four, we think it's given expression to some degree underpinned by this EU trafficking directive. Secondly, since human trafficking trafficking victims are in a sense a subset of victims and victims rights are within the ambit of the chapter. And thirdly, on the basis of the commitment to equality of opportunity in all social and economic activity, regardless of gender, given quite often the gendered nature of human trafficking. So based on that analysis, when the border security, asylum and immigration bill was going through, we raised concerns in respect of some of the provisions that have been left on the statute book, notwithstanding that most of the IMA was being repealed and so on.

Some provisions are left on the statute book that reduce the rights of victims of human trafficking and including, for example, disqualifying a potential victim from what's known as the recovery and reflection period on grounds of public order or bad faith. And we don't think those restrictions or disqualifications sit well with the minimum standards in the EU trafficking directive. So we argued that that should be remedied, and perhaps that that's helpful, but we can provide more detail in writing. Thank you.
12:07
12:08
12:09
12:09
12:09
12:09
12:10
12:10
12:11
12:11
12:11
12:11
12:11
12:12
12:12
12:12
12:12
None Portrait Speaker 2
-

Yes.
12:12
12:12
12:12
None Portrait Speaker 1
-

So.
12:13
12:13
12:14
None Portrait Speaker 8
-

Who do you mean, ask?
12:14
12:15
None Portrait Speaker 1
-

Thank you very much.
12:15
None Portrait Speaker 8
-

Thank you.
12:15
This debate has concluded
Return to start of debate - Return to top of page