Oireachtas Joint Committee on Justice and Equality: Opening statement by Professor Colin Harvey

Opening statement by Professor Colin Harvey, School of Law, Queen’s University Belfast

23^rd January 2019

Video of Committee proceedings available here

Introduction

Thank you Chair and Committee members for the invitation to address this meeting. The aim of the discussion is to reflect on ‘the issues and potential risks raised by Brexit in terms of human rights and equality in Ireland, and how we ensure and strengthen the protection and promotion of human rights and equality on the island’. In this opening statement the intention is to consider three themes: thinking about context; Brexit, human rights and equality; and strengthening the protection and promotion of human rights and equality on the island.

Thinking about Context

It makes little sense to consider the impact of Brexit without acknowledging the pre-existing and continuing human rights and equality deficit in N. Ireland. There is a palpable sense that the promises of the Belfast/Good Friday Agreement have been dishonoured. The failure to implement proposals on a Bill of Rights stands as only one example, as the region falls further behind other parts of these islands. The power-sharing institutions are no longer functioning, and the rights and equality crisis is often referenced as the major obstacle that is impeding political progress (more on this below).

Although there is much work still to be done, advances since 1998 must be acknowledged. The Human Rights Act 1998 remains in place (for now), with a Human Rights Commission and an Equality Commission (among other institutions) still there. There is a patchwork of equality and anti-discrimination provisions, including the s 75 ‘constitutional’ equality guarantee. The region is fortunate to have robust civil society organisations working hard to protect and promote rights and equality. The UK remains bound by a significant range of international human rights obligations, and efforts are ongoing to ensure that these matter in practice. In difficult times there is always an imperative to make use of the tools that are available and maximise their potential. However, be in no doubt that the context in N. Ireland is troubling. There is a genuine crisis; there is an urgency about the need for extensive legal and policy change.

Brexit, Human Rights and Equality 

The decision to leave the EU was taken on the basis of a unitary UK-wide vote. In such a scenario, votes in N. Ireland were never likely to be decisive (this statement may also be true of a second referendum, if it is conducted on the same basis). However, it remains relevant to note that the region voted to remain, and that Brexit is therefore an unwelcome imposition.

It was possible that the Brexit discussion might have had an excessively narrow focus. That this did not turn out to be the case is the result of concerted efforts by individuals and organisations on this island (that includes civil society organisations, commissions, political parties, academics and many others).

EU law is complex and evolving; it brings with it guarantees on rights and equality of significance. The EU Charter of Fundamental Rights is often cited as one example of an innovative approach (and the British Government’s attitude to it is well known). EU law provides substantive protections and a strong measure of practical enforcement. The supremacy of EU law over domestic law gives this legal order a practical edge: there is nothing quite like it in the British constitutional system. Its impact is particularly notable in the rights and freedoms that it offers to EU citizens, and in fields such as equality and anti-discrimination law, and in advancing socio-economic protections in, for example, the context of employment law. With the assistance of the EU Charter and the general principles of EU law, rights have played an increasingly prominent role within the EU, and in the interpretation and implementation of EU law.

Common membership of the EU was a core part of the peace-building process, in terms that are now well known and accepted. But it is the freedoms that developed with the EU that assisted in easing tensions on the island. For example, facilitating, enabling and supporting the complex lives that people live in the border areas.

The Withdrawal Agreement and the Political Declaration speak to matters of human rights and equality. The rights of EU citizens and British citizens are covered extensively, with an elaborate set of arrangements to be put in place internationally and domestically. The Protocol on Ireland/N. Ireland includes references to rights and equality. The language reflects an understanding of what might be possible (in the context of a Withdrawal Agreement between the EU and the UK) and the different phases of the process. If this Agreement does form the basis for the UK’s withdrawal, and the Protocol is operationalised, then detailed attention will turn to the adopted approach. A number of points are worth highlighting here:

• The recital notes the role of EU law in supporting the rights, safeguards and equality elements of the Belfast/Good Friday Agreement;
• The recital recognises the rights of Irish citizens in N. Ireland as EU citizens;
• Article 4 gives prominence to the rights, safeguards and equality section of the Belfast/Good Friday Agreement;
• There is an obligation on the UK to ensure ‘no diminution’ resulting from withdrawal from the EU (with respect to the above section of the Belfast/Good Friday Agreement);
• This includes listed areas of equality and anti-discrimination law (Annex 1);
• Implementation of Article 4 is to be through ‘dedicated mechanisms’;
• The UK must facilitate the work of the relevant human rights and equality bodies (including the Joint Committee);
• Within prescribed constraints, the UK and Ireland may continue to operate the Common Travel Area, and the UK must ensure Ireland is able to do so without affecting Ireland’s EU law obligations;
• The notion of a single customs territory brings with it the idea of a ‘level playing field’ and this includes significant protections on, for example, ‘labour and social standards’;
• There will be a specialised Committee on the Implementation of the Protocol and the relevant human rights and equality bodies can draw matters to its attention;
• It is apparent that aspects of EU law relating to rights will inform the implementation and enforcement of this Agreement (including, where relevant, a role for the CJEU and its case law).

The terms of the Withdrawal Agreement, and whatever future relationship that emerges, can never replace the benefits of remaining in the EU; that is a matter of simple fact. The Protocol is an attempt to address the unique circumstances of N. Ireland by guaranteeing no hard border, ensuring continued North-South co-operation, and protecting the Belfast/Good Friday Agreement in all its parts. Rights and equality have found a place in the Protocol (and in the Withdrawal Agreement as a whole), and this fact is welcome. But it must be viewed with the context sketched above fully in mind, including the practical experience of inadequate implementation and enforcement of past promises, and the justifiable suspicion that this generates.

Strengthening the Protection and Promotion of Human Rights and Equality on the Island

Brexit has prompted immediate and pressing questions of crisis management, particularly the prospect of a no-deal outcome. Unsurprisingly, given the nature of the Belfast/Good Friday Agreement, it is encouraging larger constitutional questions. For example, the need for a constitutional conversation about how this island is shared in the future. Whatever configurations emerge (including full restoration of the power-sharing institutions) it is useful to acknowledge the value of a human rights framework. This will help to retain a focus on the rights of everyone on the island of Ireland, and this connects directly with a vision for the future that concentrates on people and their well-being.  It also has the advantage of being couched within overarching international legal standards and institutions, as well as existing constitutional and other guarantees.

At present, there are several things that could be done to strengthen the existing position. In N. Ireland there is a need to revisit the work on a Bill of Rights. The Northern Ireland Human Rights Commission submitted its advice to the British Government on 10 December 2008 (I was a commissioner at the time). That process is now badly stalled, and over 10 years later there is still no Bill of Rights. Such an enhanced and inclusive ‘constitutional’ measure is still required. Advances in relation to single equality legislation, equal marriage, women’s rights, and language rights, among other things, would all make a major difference. It is also apparent that aspects of the 1998 Agreement around identity are not well understood and are not fully reflected in domestic law, policy and practice. Where this is the case, for example in relation to those who wish to exercise their right to identify and be accepted as Irish, then changes must be made. That is equally the case with the Common Travel Area, where again there is a need for effective ‘formalisation’ (in the British and Irish contexts). Remember also that the British Government is still talking about repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights (once Brexit is out of the way).

It is equally vital that existing statutory institutions are encouraged and supported to be as robust as possible. A further concern for the future is the erosion of critical voices from civil society; N. Ireland has benefited from a vigilant and engaged community and voluntary sector  and that work must continue. Attention must turn to the pressing matter of resources and capacity building.

On an all-island basis it should be recalled that the Joint Committee submitted advice on a Charter of Rights for the island in 2011. In the context of Brexit, and more generally, it would be wise to return to that work and to that project. There is a real risk that the principle of ‘equivalence’ will be further damaged, and a Charter is one way to address that. One welcome development in recent years is the renewal of the Joint Committee. This should be encouraged, and serious thought should be given to further expansion. There are many areas where the Joint Committee could make a significant contribution, and more attention might also be paid to how to ensure more extensive civil society participation and engagement in its efforts.

If there is a more intensive all-island conversation about the future constitutional status of N. Ireland (and recall that people on this island have a right to determine the constitutional future of the region) then human rights and equality must feature centrally in that. As this discussion gains momentum, it is to be hoped that the planning and preparation will include reference to the sort of new Ireland that people want.

In Ireland at present, there are many things that could be considered: enhanced constitutional and other protections for social and economic rights; possible improvements in the effectiveness of the European Convention on Human Rights Act 2003 (as amended); more respect for, and compliance with, existing international human rights obligations; extending rights, including voting rights, to Irish citizens (and others) in N. Ireland; and ensuring that the potential of existing measures is maximised.

Conclusion

The current crisis is generating considerable anxiety and fear about the future. People are right to be worried about the consequences for human rights and equality. There is an ongoing and commendably impressive mobilisation on this island and beyond in response to the threat that Brexit poses. The point of this opening statement is to suggest that there are solutions, many of which have been around for some time. The problem remains one of comprehensive implementation rather than the absence of credible proposals and suggestions. Is there the political appetite and desire to face the human rights and equality crisis in N. Ireland? Are both governments and the political parties willing to confront this challenge in a meaningful way through the necessary legal and policy reforms? Will the commitments made as part of the Brexit negotiations be implemented and enforced effectively? The answers to these questions will determine the fate of this island for decades to come.

Further Reading:

1. See the work undertaken by the BrexitLawNI team, in particular the six policy reports available at: https://brexitlawni.org/
2. Colin Harvey, ‘Brexit, Borders and Human Rights’ <http://qpol.qub.ac.uk/brexit-borders-human-rights/> accessed 18 January 2019
3. Colin Harvey and Anne Smith, ‘The Return of the Bill of Rights for Northern Ireland?’ <http://qpol.qub.ac.uk/return-bill-rights-ni/ > accessed 18 January 2019
4. Anne Smith and Colin Harvey, Where Next for a Bill of Rights for Northern Ireland? (2018) <http://qpol.qub.ac.uk/where-next-for-a-bill-of-rights-for-northern-ireland/ > accessed 18 January 2019
5. Colin Harvey, ‘From civil rights to human rights?’ <http://ukandeu.ac.uk/from-civil-rights-to-human-rights/ > accessed 18 January 2019
6. Colin Harvey, ‘Safeguarding Rights and Equality in Northern Ireland’ <http://qpol.qub.ac.uk/safeguarding-rights-equality-northern-ireland/ > accessed 18 January 2019
7. Colin Harvey, ‘Brexit and Human Rights in Northern Ireland’ <https://brexitlawni.org/blog/brexit-and-human-rights-in-northern-ireland/ > accessed 18 January 2019
8. Colin Harvey, ‘What Price Human Rights and Equality in Northern Ireland?’ <http://ohrh.law.ox.ac.uk/what-price-human-rights-and-equality-in-northern-ireland/> accessed 18 January 2019
9. Colin Harvey, ‘Sharing the Island: Brexit, Constitutional Imagination and the Right of Self-Determination’ <http://qpol.qub.ac.uk/brexit-constitutional-imagination-self-determination/ > accessed 18 January 2019
10. Colin Harvey, ‘Northern Ireland and a Bill of Rights for the UK’ (2016, British Academy) <https://www.thebritishacademy.ac.uk/sites/default/files/NI%20BOR%20178_0.pdf > accessed 18 January 2019