Northern Ireland Scrutiny Committee

Wednesday 8th July 2026

(began 2 months, 3 weeks ago)

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10:46
None Portrait Speaker 1
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Good morning and welcome to this public meeting of the Northern Ireland Scrutiny Committee, which today. Holding the fifth Public evidence session of our inquiry into article two of the protocol Windsor Framework, the so-called non diminution of rights provision. We're joined today by expert witnesses who were involved in the negotiations of the 1998 Belfast Good Friday Agreement and in particular, the rights, safeguards and equality of opportunity. Our SEO chapter of the agreement, which is referenced explicitly in article two, one of the protocol, the Windsor Framework.

You're all very welcome. We very much look forward to your evidence. We'd be grateful if the witnesses were. Introduce yourselves briefly. The first time you speak. Today's meeting is being broadcast and a verbatim transcript will be taken for subsequent publication. That transcript will be sent to witnesses to check for accuracy. Her to the Register of Members Interests as published on the committee's website. Mark Durkan in the room here in Parliament.

We have Professor Monica McWilliams on screen. Are third witness is not yet with us on screen, but I hope he will arrive fairly soon. So I'm going to start with the first question, if I may, which is what was the starting point for the negotiations on equality and human rights provisions during the multi-party talks?And how did this relate to the six rights listed in the joint Downing Street declaration of 1993?Um, professor McWilliams, would you like to go first?
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None Portrait Speaker 2
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Yes. I have reviewed the minutes of the negotiations and there was a subcommittee on Human Rights, and I can provide those. I've given my papers to Queen's University and indeed I think Chris Mccrudden based his article on the origins of those rights on my papers and other work. And I also had the opportunity to ask David Irvine. And Gusty Spence, who were at the negotiations. Where did these rights come from?And they reminded me that they had been involved in the Downing Street declaration at the request of John Major, who was then Prime Minister.

Um, and they said that they had a long discussion about these rights and in fact, would argue that the origins came from a set of rights that they had drafted many years before. Um, I'm also aware that from the 1960s, the mid 1960s onwards from Sheila Monahan's participation in the old Northern Ireland parliament, that five times she put forward a set of rights through motions and five times they were rejected on the grounds that there should be um rights for Northern Ireland. And later, obviously in the 1970s, we had the Fair Employment Act and a great deal of dispute over that legislation.

But also, I was aware that some of these rights were related to the conflict naturally, given that that was the purpose of the negotiations, was to have no reoccurrence of the conflict we had come out of. And therefore we should base the document, which was going to be a foundational document on human rights and equality. So there was a major discussion, um, about the rights. And later I can talk about how we amended them because we actually were involved in making suggestions that the original six, um, needed to be tweaked, um, and added actually, um, a few more clauses, but I can come to that later.

We were very much because we had stood on three principles of human rights, inclusion and equality. You can imagine that our party was very focused on these particular rights.
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None Portrait Speaker 1
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Thank you very much.
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None Portrait Speaker 5
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Um, yeah. Thank you. Chair. Um, well, as Monica said, I mean, the question centred on, uh, the appearance of the bullet points in the Downing Street declaration, uh, the Downing Street declaration. Large part of that text was derived from the Hume talks, but also there had been a strong feed in, uh, not least courtesy of Lord Eames and some others, uh, from some unionist and loyalist thinking. And those bullet points actually appear in paragraph five, which is actually the Taoiseach paragraph.

Uh, so it's the Taoiseach who actually was pronouncing those. And that, as Monica suggested, was sending a clear signal that both governments, where they might be deriving some of that declaration from Hume-adams, that there was a wider input and reflection when it came to the negotiations. Uh, I think parties were coming to those talks, uh, partly influenced by exposure we had to the South African, uh, experience, many party delegates had been part of various trips to South Africa. And also we had been briefed by many visitors from South Africa on their process, uh, including the centrality of a bill of rights there.

Uh, of course, the Bill of rights had appeared in previous negotiations. Uh, the question of one, uh, the possibility of one is actually mentioned in the Anglo-Irish agreement in 1985. It was also something that was discussed in the Brooke and Mayhew talks. While that was a more limited number of parties, it was there and there was agreement that whatever political models that might be agreed, there was value in having a bill of rights alongside it. Uh, I wouldn't pretend that there was deep agreement on what the character of that Bill of rights would be.

And again, as we found during the negotiations between, uh, that led to the 1998 agreement, there was a range of views. Uh, some parties saw a bill of rights, maybe as more of a badge for the system. Others believed in it as more of a shield for the citizen. And, uh, Mo Mowlam, whose fingerprints are all over the rights, safeguards, and equality of opportunity section, very much believed in, uh, the shield for the citizen.
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None Portrait Speaker 1
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Thank you.
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None Portrait Speaker 5
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Um. Well, reflecting on not just the Sdlp's own position, but also, uh, many ideas and issues that had come from others. There were many different, uh, academics and activists who had pointed out the potential value and significance of a bill of rights. We knew that in political negotiations, uh, it was going to be questionable whether or not we would get agreement on political arrangements and structures. And we also knew that many people would then have doubts as to the reliability of those structures.

And so people would want to know what guarantees there were from the point of view of them as citizens or them as community. There were discussions about group rights and communal rights that came up, uh, at that time, some of that focused on some of that was colored by, you know, the marching issues that were prevalent, uh, at the time. And so people were coming in with different perspectives on that. It also related to questions of language and culture, uh, and, and other issues as well.

But there were, there was the real question then of individual rights as well, because we were well informed that rights couldn't be looked at, just purely through a communal or group lens. Uh, and so we and other parties made very strong, uh, cases. And it was to make sure not only did we have, uh. Rights, uh, listed in terms of the European Convention, uh, and a possible, uh, bill of rights, but also that there would be real instruments to safeguard and curate those rights and to provide independent oversight.

And remember, it's significant that you had all party negotiations negotiating political structures where there was a lot of emphasis about the need for checks and balances and safeguards within those systems. But people also agreed that there needed to be safeguards outside of those political structures. You couldn't rely purely on the collective, uh, institutions, uh, alone. And that's why you had the Equality Commission, uh, Single Equality Commission created. And again, Mo Mowlam was the big driver for that, uh, idea. And also separately, the Human Rights Commission.

And again, Mo was the person who was at pains to say they needed to be two separate, uh, commissions because one was going to have a major job of work to do in bringing forward the ideas of a Bill of rights. And the other was going to have a major job to do in terms of curating and overseeing what became section 75 of the Northern Ireland Act, the equality provisions.
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None Portrait Speaker 7
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I agree with.
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None Portrait Speaker 1
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When is it your.
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None Portrait Speaker 8
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Well.
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None Portrait Speaker 5
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Yeah. Well, Monica's reference to paragraph 11, that was the mechanism that was to be triggered by a petition of concern. So it wasn't to be a fixed standing committee. It was that in the event of a petition of concern, a special committee and parties could then choose rather who was appropriate, uh, for that committee for that consideration. So that that was that device. But that device never got properly translated either in legislation or in, uh, standing orders. I think it is also important to recognise that the whole idea of a Bill of rights was something that people recognised was important, because we knew that the European Convention on Human Rights, hugely important as it was going to be.

And the UK government's commitment was hugely important. And it was very convenient that we had the vehicle of the Human Rights Bill going through this Parliament. Uh, so it meant that all of that didn't have to be covered as part of the subsequent Northern Ireland Bill and what the Northern Ireland Bill had to do then was take the Human Rights Act and the incorporation of the Echr as a given, and then concentrate on delivering the creation of the two commissions with their respective, uh, remits and competences.

And again, it's important to recognise that the agreement vested, the creation vested both the setting of the incorporation of the European Convention on Human Rights and the creation of those two agencies on the UK government, because we recognised that it was going to be difficult for the parties and the institutions to deliver that, but also in. The talks at the time, the word entrenchment was being used, that there would be these idea that these would be entrenched. So the idea that this would be done by the Westminster Parliament.
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None Portrait Speaker 2
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Yes, indeed. Um, it these rights, as far as we were concerned, were absolutely fundamental to any. Um, and we wanted people to see themselves in the agreement and that's why they're written the way they are. And we added obviously the seventh right in relation to women. So that when we read the entire document, we said, well, would women actually see themselves under those rights?Um, so but also in that context, you, you needed to have to read across and Mark's right.

That paragraph 11 was contested. I remember putting forward a motion and it was rejected that that committee should be established mainly, mainly because people in Northern Ireland disputed human rights so much, depending on which party they belong to. Um, and that's a sad reflection of where we were at the time. And I would add to that, that knowing that we are at the Consultative Civic Forum, because we knew there were issues that were going to be too hot to touch untouchable issues. Um, and in that it was written that it should be advisory body on social, cultural and economic rights.

And as you know, cultural rights to this day still create an enormous amount of division. So that was the focus in terms of trying to get over those divisions. And you can see the way those rights were written at the time of the Downing Street declaration, obviously. Um, both governments were very fixated on making sure that they were broader than just religious and political rights. Um, so reading across, as I've done this last few days in preparation for this committee, um, I find it amazing how many times the issue of these rights come up, not just in the safeguards section, but in other parts of the Good Friday Agreement.
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None Portrait Speaker 5
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Um, yeah. Well, as Monica said in a previous answer, those eight bullet point, uh, rights. So there were six from the previous, uh, text that are in street declaration and the framework documents. Then there were seven in the draft, and then there was eight in the final agreement. They are framed as aspirational. Uh, in that sense, they're very much kind of, uh, from now on, right. Uh, in terms of what people wanted to see, it was about what participants were agreeing should be characteristics and, and hallmarks of a transformed society.

Uh, they're not a confessional list of rights in the sense that we're not listing or describing various rights that had been violated and broken in different ways by different actors and players in Northern Ireland's history, some of which had taken up a large part of the negotiations. There was a lot of recrimination about different breaches of rights, whether by various armed groups or by previous governments or administrations or whatever. So the language in rights isn't wasn't going to be specific and articulate about a number of very live rights considerations that parties had in mind.

These are more generic and collective in that sense. So it would be wrong for anybody to think that those bullet points were in any way an exhaustive, uh, or fully prioritized list of rights that were to be protected. Those were that was a shared statement, uh, for rights that could be realized and experienced by people and we hope would be the expectations in our society in the future, uh, rather than a more specific list of a full catalogue of rights that we believed were going to be covered and addressed either by both by the European Convention and if it was supplemented by any, uh, bill of rights as well.
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None Portrait Speaker 2
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Yes.
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None Portrait Speaker 2
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Different pieces to your question. Um, one was what enforcement mechanisms would follow. Um and indeed in the next section of that safeguards chapter, um there was a statutory obligation um on equality which later became known as the famous section 75 of the Northern Ireland Act. Now I've read again the Northern Ireland Act. Um and that was the mechanism, the legislation that we anticipated um would be passed at Westminster and would actually know how to enforce these rights implementations, everything, as I discovered, it's probably the biggest mistake that we made in the Good Friday Agreement, that we didn't establish a validation, um, committee, as have other peace treaties such as Colombia.

Um, but they have been overseen by the UN and we were not, we were overseen by the two governments who were the guarantors. In answer to your question. Um, yes, there was also the legislation and the act, but there was to be two commissions, and the two commissions were the enforcement mechanisms, as they have been for many of those rights. Um the different parts of them fall to the Human Rights Commission, which is a reserve body and some to the devolved body, which is the Equality Commission.

And there in by itself lies a bit of a dilemma, because I had to respond to Westminster and make my reports to the Human Rights Committee at Westminster, your cross party committee. I was very glad to do so, but never, ever had the opportunity to do so at the Assembly and the Equality Commission, of course, um presents evidence at the Assembly. So I'm saying that because of the differences um in the establishment of those institutions. Let me turn to the question about the European Union.

Again. I looked at our agreement to see how often there was a reference, and one of the most important references is the agreement between the two governments. It's not, um, put as a numerated as a bullet point, but its third point down. And I read it to you, wishing to develop still further unique relationship between their peoples and the close cooperation between their countries as friendly neighbours and as partners in the European Union. We were partners in the European Union until 2016, and hence that's really important that all of us, as we signed and put up our hands on the last day of April 10th, 1998 to agree this peace treaty, we got up from that table knowing that we were still members of the European Union, and that was another guarantor for us.
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None Portrait Speaker 5
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Um. Well, taking the EU question first, obviously the EU is specifically referenced in a matter of fact way in strand one. Strand two. Uh, strand three. Uh, it isn't in referenced in the section of the agreement that is, you know, we the participants, uh, and that was unfortunate. John Hume certainly wanted it, uh, in there, but we need to remember that you had a Eurosceptic strand in the Ulster Unionist Party at the time, and maybe in unionism more generally, and also, of course, Sinn Fein had consistently voted against every EU treaty in the South.

And remember, if we had an agreement and it was going to a referendum, there's going to be a referendum on the Amsterdam Treaty on the same day. So the Taoiseach wasn't particularly pushed about overthinking EU membership, uh, into the agreement. He was being careful about, uh, conflating those, uh, and unfortunately, I was one of those who, you know, told John Hume, you can't have chips with everything and we can't have EU references in everywhere. You would add language, but you won't add votes in a referendum.

And remember, maximising the vote in the referendum was hugely important. The. It also should be remembered again. Going back to a point I tried to touch on earlier. Whenever it came to enacting the agreement via the Northern Ireland Bill. Uh. All parties were agreed that it would be specified that the Assembly and the executive could not breach EU law or the European Convention of Human Rights and indeed in the Northern Ireland Act, section seven was actually tagged, uh, entrenched enactment.

So where the word entrenched didn't appear in the agreement itself, it was part of the currency and the understanding about the rights protection and those entrenched enactments included, uh, EU legislation that included the European Communities Act and elsewhere, European EU law, union law and community law are specifically protected, uh, in the Act as well. And because that was seen as a faithful translation of the agreement. And of course, in subsequent discussions around, uh, a bill of rights, there came a point where, you know, some Labour government ministers would have been telling those of us who were saying we still needed the additionality of a Bill of rights.

We're saying, well, what additional rights would a bill cover?Because you already have the European Convention on Human Rights and you already have all the EU rights and the Charter of Fundamental Rights in the EU. They're all there anyway. So you don't need the addition of a Bill of rights and of course, Brexit and various suggestions about the Echr. Of course, uh, fundamentally altered that argument or removed that argument, uh, of complacency around no need to have a bill of rights per se.
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None Portrait Speaker 1
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Thank you, Lord Hain.
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None Portrait Speaker 12
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Um, good.
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None Portrait Speaker 12
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It didn't.
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None Portrait Speaker 2
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Well, you would have to. I couldn't answer that quickly. And you've asked for quick responses, but certainly the document and the advice we handed to ten Downing Street, um, in 2008, um would tell you which ones were supplementary. But the piece that people forget is that that section of the agreement asked the commission also to pay attention to the international standards, not just the European Convention rights. Um, and we did both. And yet people have a short memory.

Um and that they constantly say, well, sure, everything was in the European convention. Um and in fact not everything was. Let me give you one example, the right to be British, Irish or both. That's actually probably still an aspiration. It's not a judicial. Right. I think Emma de Souza's case that she took to the Home Office, um, showed you the lengthy proceedings she had to go through in order to establish that right for her husband.

And so that's just one minor example. There are others. Um, so if you don't have a bill of rights, which many other places have in Commonwealth countries have, because I studied Canada and Australia and all of the parliamentary systems and but the biggest dispute was that any rights like there's two reasons. One, Parliament was sovereign and that Northern Ireland didn't need a Bill of rights, that it would create a separateness that didn't exist and shouldn't exist. And that was probably not even correct, and that we didn't even have parity with many of the rights that existed in Britain.

But that's the first dispute. The second was that, um. Social and economic rights and the European Convention is probably pretty mild on those rights that we were now in a modern day of 1998. And going forward to 2008, and indeed, environmental rights, that if you did not look at those, um, and include them. But that was advice. It was for the parties then to discuss it and the government to discuss what should have ended up. But as a credited International Human Rights Commission, um, based in accredited in Geneva, we couldn't have done anything else other than include the convention rights that were supplementary, as well as any international standards that applied to the conflict and no reoccurrence of the conflict as we move forward.
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None Portrait Speaker 5
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Well, in the agreement, as I say, at the time we were negotiating the agreement, it was a point of convenient coincidence that the UK government were going to be legislating, uh, to incorporate the. Into UK law. The agreement, of course, makes very specific commitments in respect of Northern Ireland, articulates that very specifically in relation to Northern Ireland and making it clear that people would be able to access the domestic courts in Northern Ireland, for instance, to challenge legislation, by the Assembly, for instance. So that was hugely important.

So it was the Northern Ireland specific aspect that concerned us. Uh, of course, it was, as I say, a point of convenience that the Human Rights Act was a very good vehicle for delivering that protection. But we also recognise that that may not cover all issues of rights. And that's why without being able to agree and specify what those other issues would be, that's why it was remitted to the commission. Uh, the Human Rights Commission, to draw up proposals for additional rights, which taken together with the European Convention on Human Rights, could be incorporated into a Bill of rights.

You know, some people talk about the Bill of rights as though it would be separate from the European Convention. The agreement talks about a Bill of rights that would actually subsume the European Convention and whatever additional rights were recommended, as were legislated for as a result of the Commission's advice in circumstances where issues of international standards might be somewhat fluid, uh, at the minute, uh, in terms of what's the norm and what's the given?There could be particular issues. And of course, there is the question of people suggesting that the UK should either leave the E, C or.

Deviate from it in certain respects. I would just say that the Good Friday Agreement makes specific commitments about Northern Ireland, whatever, about the whole of the UK or Great Britain may be a different matter, but the agreement makes very specific commitments about Northern Ireland. So whatever decisions are made about the EC in respect of other parts of the UK, Northern Ireland has to be treated distinctly, uh, as people found out in relation to leaving the European Union, uh, that there were certain matters that meant because of the Good Friday Agreement and other things that Northern Ireland had to be treated differently from the rest of the UK.
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None Portrait Speaker 1
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Professor McWilliams.
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None Portrait Speaker 11
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Yes.
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None Portrait Speaker 5
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It proved not to be during my term. Um, but in relation to that, it's not the Secretary of state who appoints the commissioners for the Equality Commission. Um and the commissioners have to be as representative of the community as practicable, which is a really important point in relation to the differences of Northern Ireland to the rest of the UK. Should there be two commissioners?I don't think so. They both have very different powers. Um and I think the Human Rights Commission um has a very strong power of scrutinising um the legislation and the Northern Ireland Assembly in keeping with the European Convention on Human Rights.

So all of the legislation that goes through the Northern Ireland Assembly comes, uh, to the Northern Ireland Human Rights Commission, and they have done an excellent job in putting forward suggestions for amendments. Um, or indeed keeping it in compliance with the human rights of the convention. And that is really important. Um, so that's an answer, um, to Mr. Elliott's question. Um, and it can also take cases in their own name. And that's important for people to embed a culture of rights, because we haven't really discussed that.

We've discussed the whole point of protection. But as we go forward in Northern Ireland, I think it's really important that people understand what a culture of equality, non-discrimination, human rights truly means. Um, and it has that function. It has an educational function. I've been reading the recent newsletters and they've been out around schools and youth clubs. I think that's really important for the next generation to understand, do not do what happened in Northern Ireland in terms of the causes of the conflict.

Um, go a different path. And this is the path in terms of treating each other with dignity and respect and equality. I think that's the power of both commissions. And sometimes it comes out as a result of court cases, but it also comes out as a result of their educational functions.
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None Portrait Speaker 5
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To correct that in.
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None Portrait Speaker 1
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Lord Dodds.
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None Portrait Speaker 9
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Um, well, I think Lord Dodds question in some ways touches on maybe the root motive behind the whole notion of non diminution. Uh, the point was that in the Good Friday Agreement, we were trying to make sure that rights provisions would be absolutely bulwark, that they wouldn't be merely, uh, ephemeral, uh, and that they would be there would be built in structures. So that was both on a statutory basis with the incorporation of the E, C, h, and then also by the creation of the kind of oversight and challenge capacity, uh, that both the Human Rights Commission and the Equality Commission would have both commissions do feed into legislation.

It isn't just the Human Rights Commission that would give advice when there's assembly legislation and offer scrutiny. Uh, both of them, uh, do that because they have to be live to the protection of the both the rights and the equality commitments and standards that are laid down in the agreement. And the Northern Ireland Act and other legislation as well. The Brexit context, we had the situation there where the questions were going to be around, does this remove the the fundamental rights that were covered by the EU charter?Uh, is there going to be jeopardy for some of the convention rights, or is there jeopardy for other rights under union, uh, or community law?And the whole question of non diminution is about saying the rights that were pledged in the Good Friday Agreement were to be safeguarded, regardless of any future events.

And Monica touched earlier, uh, on the fact that in the agreement, remember, the agreement states that a number that the key rights protections of the agreement, uh, aren't just contingent on the current constitutional status of Northern Ireland, but they would actually endure, uh, in the event of any change of constitutional status that the same rights protections would at least would be at least equal in the context. So that's where the whole question of non diminution, uh, actually comes from that that's a key motive. The durability and the justiciability of rights, uh, was a core intention of the Good Friday Agreement.

And I think that's what, uh, commissions were reflecting. Then when they were trying to make sure then that, uh, people who at the time of the Good Friday Agreement had unexpected and were given confidence about the fact that there would be the equivalence of those rights on the island of Ireland. Because remember, strand two, there's an All Ireland dimension to the Good Friday Agreement that that would stay and still stand, because it should be remembered that many of the people who advocated Brexit told us that Brexit of itself wouldn't affect the spirit or letter, that not one piece or consequence of the Good Friday Agreement would be jeopardized or eroded or compromised by Brexit.

So people can't complain whenever bodies like those two commissions try to make sure that that's the case and that that's translated into whatever mechanisms are agreed between the EU and the UK on foot of Brexit.
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None Portrait Speaker 15
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Um, Lord.
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None Portrait Speaker 5
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Dodds will know it's not the first time that the commission has been criticised for being expansionist. Um, but the commissions have to keep within, um, their mandate and within the accreditation that they're given. In the case of the Human Rights Commission, um, by the Geneva International Coordination Committee. And if they didn't, they'd be accused and lose that accreditation. But I think it's important to say that they are the dedicated mechanism. They have probably, and it's good that both commissions are mandated.

And speaking here about the human rights commissions, of which I know best, are mandated by the agreement to meet on a quarterly basis and to discuss these issues. Um, I say that because there was another issue we haven't raised, and it's not specific to this particular question, which is the charter of Rights for the island of Ireland. And I was very focused on that in terms of this question, what are the differences between how the Irish government brought into law its Human Rights Act compared to the British government?And it was criticised by members of the House of Lords for watering down some of the convention rights and hence the reason for a charter for the future, which was to be agreed by political parties.

It was more a declaration. What are the gaps?What are the vacuum?Where is the vacuum?And gives you one example. There's an enormous vacuum in terms of how the colonial system is run much, much better in Northern Ireland in relation to inquests, much, much weaker in the Republic of Ireland, where it's a local doctor who hears these contentious um inquests. As we know, in the case of Denis Donaldson's case, um but there's one of many examples of where we differ and hence the reason for drafting the advice as they did under when I was commission and handing it to Lord dubs his colleague William Hay, who was the speaker of the Assembly, and to the speaker at the at the time um in the Dail.

And both of them are sitting gathering dust. So I've said more recently it would be really useful to have a look at where the two differ. So it's more a case of um that they're not so expansionist as looking at the, where they differ and how they can fill that gap.
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None Portrait Speaker 5
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You too.
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None Portrait Speaker 9
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Oh. The, um. Well, the vote to leave had significance for the whole of the the Good Friday Agreement. Uh, the fact is joint membership of the EU was taken as a given. Uh, it was something that was very formative to the context of the agreement. Um, many people forget that there was significance in that, you know, the single European Act and the removal of customs borders and the trade border. Uh, in 1992, uh, very much facilitated a context in which cease fire subsequently took place, because John Hume's argument in Hume-adams all along had been that when the single European Act came in, uh, the only thing that would be, uh, maintaining a profile at the border would be security.

Uh, and that would be in response to the IRA campaign. So if you wanted to remove the visibility and the obtrusion of the border. So the EU was the context in which that, uh, was achieved. And of course, the, the EU provided many other, uh, supports in kind, uh, as well. In terms of the special EU programmes for peace and reconciliation, uh, etc.. So structures that relied on an assumed common EU membership. Because remember when it came to negotiating strand two, I can recall David Trimble's negotiators, many Ulster Unionists said it was easier for them to agree.

Bodies or areas of cooperation that had a strong EU remit in terms of either handling funds or comparing notes on how to transpose directives, because that was more defensible, uh, for them. Some of the other, uh, suggestions in terms specifically then of the whole question then of, uh, rights, then obviously much of what is in the EU, uh, chapter and many of it, much of that is written kind of almost in the style of a manifesto, whether it is more the manifesto section of the agreement than some of the other sections of the agreement are.

Again, we're very much, uh, dependent on or reliant on the context of continued EU membership. So there were going to be strains. Many of us said at the time that leaving the EU would drive fishers into different aspects of the Good Friday Agreement, and it would create tensions and difficulties and doubts where they previously hadn't existed.
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None Portrait Speaker 14
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Very much.
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None Portrait Speaker 1
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Professor.
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None Portrait Speaker 17
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Thank you very much, Lord. Chair, um, can I declare my interest, um, for the record, as chair of Intertrade UK and as a member of the Board of Cooperation Ireland, um, Lady Ludford referred to the RFQ section of the Belfast Good Friday Agreement as a political text, not a legal text. And I think, uh, we have heard from both of you very fully what your particular, um, view was when you were negotiating, um, the text at that time, I greatly regret the fact that we don't have Dermot Nesbitt online chair, because I do think um.

He would take a different view on some areas and he has given us his written evidence. And I think that has been, that has been helpful. Uh, Mark, you said it was a shared statement at the time, and of course, it was a negotiated part of the Belfast Agreement, as it all was. Um, but the chair has already mentioned the Supreme Court's commentary. In Dillon, um in and around the same chapter. Um, were at paragraph 119 of the judgment.

They say, as you know, um quote rights listed with bullet points are all concerned with ending sectarian conflict. And I think in the chapter it does refer to communal rights, I think, as part of the preamble. Just interested to hear your own, uh, contemporary understanding at the time that you were negotiating around that. I think Monica has made our view clear in terms of, yes, it was dealing with the troubles, but it was also looking to the future. But I just wanted to get it on the record.

What both of you thought around that?
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None Portrait Speaker 9
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Yeah. Well, contrary to maybe what the Supreme Court has said, I don't believe that some of us regarded them as being concerned with ending, uh, the sectarian conflict. We saw them as, uh, as indicators that would manifest that we had moved on and that we had successfully ended sectarian and other, uh, forms of conflict and that we were talking about a transformed society where people would be able to, uh, expect and experience, uh, very different life choices and circumstances, uh, than heretofore. Uh, as I said earlier, it wasn't done to say, these are all the rights that now have to be vindicated.

It wasn't asking anybody to renounce their own past behaviors or decisions in respect of rights, because an agreement of that kind, you're not going to get an agreement that is going to be confessional. That's going to be recrimination and cross recrimination, uh, or whatever. So it was written. It was written in a forward looking, uh, sense. Uh, similar issues apply to the question of legacy. There was always going to be limitations on what could be in the text in respect of legacy and the experience, uh, of, of victims, which is why again, uh, that was written in a forward looking, uh, sense.

I think part of the problem here is that maybe people have got overfocused on the RCO, uh, section of the agreement. And that is partly because of the way article two was written. Uh, and well, I think, you know, what is in article two is absolutely necessary in terms of reflecting on bull working aspects of the Good Friday Agreement. I don't believe that it is actually sufficient. Uh, and I felt at the time, uh, that it wasn't achieving it wouldn't achieve as much for the protection of the agreement as some people were saying.

So I know some people say that the Windsor framework was oversold, uh, to unionists in one respect. I think in other aspects, the Windsor framework was oversold, uh, to other people as well. And maybe we're realizing that now.
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None Portrait Speaker 15
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Um, well, in relation.
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None Portrait Speaker 5
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To the Dillon judgment, I think it is a useful that it is saying no diminution. Um and that's very good in terms of protection and but then it did go on to say that, uh, the particular rights in relation to the victims directive, um, was in relation to the past and the sectarian conflict. I think it's both. I mean, we never sat down and said it had to be either or. It's both. And it clearly was in relation to the past that we were looking at what we needed to do for the future.

Um, indeed, even for the present. And that's remains a discussion. I had always been of the view that they were written in that way because it would fall to different parts of the government, it would fall to the different parts of the institutions to take them forward. And I've said that earlier. And many of those mechanisms have yet to be established. Um, and it was a disappointment as a member of the first Assembly, um, that we didn't have.

And I know some of it falls to the executive committee that we didn't have a particular committee that could have taken evidence and testimony and expert witnesses. Um, and really discussed and fleshed out what was meant by the rights, safeguards and equality of opportunity as they talk about in the States, the guardrails. And Northern Ireland certainly needed those guardrails for both communities, but also for ethnic minorities, as we saw recently. Um, and that we've never had. So that remains a disappointment.

Um, but still, you know, there was gain and there was pain. Um, it's the interpretation obviously of the Dillon judgment and different people have different views on it. Some are more relaxed and saying it probably won't affect decisions in the courts or how EU directives apply to Northern Ireland. Others are saying no, but fundamentally changes it. So we'll have to see how it plays out.
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None Portrait Speaker 14
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Yeah.
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None Portrait Speaker 9
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Um, I'm not quite sure whether or not the, uh. Trade unions would be in a position to advise their officer yet that, you know, as Monica has implied, uh, the Dillon judgment will take, uh, some perusing and absorbing. Uh, the fact is, you know, it may be points to the fact that. Some people expected that article two, by its reference to the RCO chapter, was going to cover and was, was was going to be a reliable. It was going to provide reliable recourse in respect of the whole gamut of human rights.

Uh, it clearly turns out to be more limited, you know, so it's about, you know, an umbrella can perform the function of a parasol. The parasol can't perform the function of an umbrella. And maybe that's what what's been found out. Uh, and in terms of, uh, can't be relied on in, in all rights cases, uh, as, uh, as people may think. Uh, I think I agree with Monica as well that I think it's difficult. There is difficulty in trying to say that RCO was all about dealing with past issues, particularly when it is written in such a future facing, uh, way, but it isn't future facing in a way that says, right.

And we're going to ignore any past transgressions or any issues of rights about past experiences or actions goes, uh, by the, by, in terms of the, the Dillon judgment, I think people have a, a sympathy. With the families who have taken that case because of all of the other experiences they've been through, people will have, uh, a concern about what its implications will be. They're probably concerned, will there be all sorts of, uh, arguments and, uh, conflicting jargon, uh, going on as a result of it that they may or may not be able to decipher that there will be a lot of political conjecture, uh, around this or whatever.

And so I think people would appreciate, uh, clarity. I think maybe what it points to is the fact that there is a case for looking again, at the whole question of the Windsor framework, not just from the point of view of whatever unionist concerns remain about its adequacy from their respect. But maybe, uh, more widely, uh, and the fact is, post-Brexit led to many difficult negotiations and not all the choices have been as perfect or as even as people hoped they were.
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None Portrait Speaker 5
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Well, chair?
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None Portrait Speaker 1
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Um. Yes, professor.
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None Portrait Speaker 1
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Yes.
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None Portrait Speaker 1
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Thank you.
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None Portrait Speaker 10
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Sorry for the work.
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None Portrait Speaker 10
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AM so sorry.
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None Portrait Speaker 9
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Just if I can make the point in response to, uh. The homework that Margaret was trying to assign to me. The my. My point wasn't just about article two of the Windsor framework. I hope I'm not giving myself a bigger job at work here. Uh, it was about the Windsor framework at large. You know, the fact is, we have had a lot of lip service, uh, by British governments, EU Irish governments, American players, etc. about committed to upholding the Good Friday Agreement in all its parts, all its aspects, all its dimensions, etc..

The EU RCO is only one of those. Uh, I think it has been a problem in that post-Brexit, not least because we didn't have functioning institutions at times, but the machinery of the Good Friday Agreement wasn't actually looked at as a way of answering a lot of the vexed problems that give rise to Brexit. You know, and I'm reminded that, uh, Lord MP and myself both made the point. Uh, Hume Foundation event that there could be the possibility of creating some new north south bodies or repointing existing north south bodies like Intertrade Ireland, for instance, to deal with some of those, uh, questions that were there.

But because of the positions that were taken by respective governments and the EU. Well, a lot of well, there was a lot of lip synched lip service to different aspects of the Good Friday Agreement. Uh, there wasn't actually a lot of lateral thinking about using it or deploying it. That may have been different if we had had the Assembly and executive, uh, and Nsmc as life players. But so I do think there could be revision, uh, and positive progress there, as well as addressing whatever outstanding concerns there are, uh, from a different direction in that respect.
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This debate has concluded
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