Emma DeSouza is a writer, campaigner and peace builder. She initiated a human rights case regarding the Belfast ‘Good Friday Agreement,’ resulting in substantive changes in UK Immigration Law for those resettling in Northern Ireland. Emma formerly ran as a candidate in the Northern Ireland Assembly elections. She spoke with JURIST Interviews Managing Editor James Joseph about February’s restoration of government in Northern Ireland and other issues facing the area.
JURIST:
So my first question is what does the return to power-sharing mean for Northern Ireland, and how does this impact the rule of law in Northern Ireland?
Emma DeSouza
Well, in short, the return to power-sharing means that politicians are finally going back into Stormont, taking their seats and doing the job they were elected to do. But it also means that again, in the Northern Irish context, a five-year term is being squeezed into three years. So there’s a significant backlog of policy issues that have to be addressed in a far shorter amount of time because of the boycott.
In terms of the rule of law, Northern Ireland’s power-sharing structure has been in place since the 1998 Good Friday agreement, but it has had quite a few collapses in that time. Subsequently, what happens is an agreement is drawn up, usually between the Irish and British governments, and the parties restore power sharing. In the context of this return, it was different from previous returns, and instead of having a multi-party negotiation to return power sharing, there was a one-sided negotiation where the UK government negotiated with the Democratic Unionist Party (DUP) on returning to power-sharing to meet their needs. What we have from that is an agreement that the command paper was not legally standing. It doesn’t have legal effect but does have a lot of symbolism in it. The command paper includes a lot of language and a lot of rhetoric that addresses just the concern of one community in Northern Ireland versus taking the dreaded traditional parity of esteem and equality between two communities process that we’ve normally seen before.
The return to power-sharing this time was also significant because it is the first time that a nationalist elected member has served in the role of First Minister. But First Minister and Deputy First Minister are joint offices, so really, it’s just the language that’s different, but Northern Ireland is all about symbolism. So the symbolism of the title First Minister versus Deputy First Minister is significant. In addition to that, there’s also a nationalist opposition leader in Matthew O’Toole of the Social Democratic and Labour Party (SDLP), so a nationalist first minister and a nationalist opposition leader point to a significant change in terms of the political landscape of Northern Ireland more broadly. In the executive, we now have a minority unionist executive, where for the first time they are in a minority position within that team. So that’s some of the basics around how the parties can come back together and get rid of the legislative backlogs.
JURIST:
What does the policy backlog look like for this administration?
Emma DeSouza
The policy backlog contains things like an anti-poverty strategy. That was actually part of the Good Friday Agreement. It’s never been delivered. We haven’t had a programme for government for a very long time. There were also issues around regional development strategies, rural development strategies, issues around child care, which is coming up here at the moment, and issues around public pay, which need to be resolved in the health care service. So there’s quite a significant range of issues that need to be addressed now in a short period of time.
JURIST:
Back in 2022, you wrote evidence to the UK Parliament on the Northern Ireland Bill of Rights and the impact that the Northern Ireland Assembly has on the legislative agenda of Northern Ireland and on the return to power-sharing, including on human rights. Would you be able to outline a bit of the evidence that you gave, if possible, and what that said on human rights in relation to the evidence on the functioning of the institutions?
Emma DeSouza
All that evidence in that inquiry into The effectiveness of the institutions of the Belfast/Good Friday Agreement was quite significant because it delivered a report that had quite ambitious recommendations for making changes. Some are small changes in terms of how Northern Ireland will change the formalities of having a First Minister and Deputy First Minister to joint First Ministers as joint office holders. Some are more significant in terms of recommending that we move away from a system of having cross-party support for the election of a speaker,a First Minister and a Deputy First Minister, and instead move to majoritarian voting, which would remove barriers and vetoes to be able to elect for these offices. Now my view on those kinds of recommendations is that it actually is progression. The 99-year agreement was good for its time and served a purpose in terms of having designations in power-sharing in Northern Ireland that were necessary and trying to have a mandatory power-sharing agreement that normalised the idea of working together, but some of those structures that were envisioned in 1998 have become a deterrent to working together and have actually continued to bed in segregation. So looking at how do we advance and improve and strengthen the agreement, looking at things like is it still necessary to have designations when evidence shows us that the majority of the population do not describe themselves as keen nationalists? Therefore, why are we asking politicians to describe themselves as nationalists? So I think those kinds of steps are progress and are necessary. 25 years is a long time. The law should evolve, rules should change, and it should align with how society changes in time as well.
Going back to things like a Bill of Rights, great sections of the Good Friday Agreement were never implemented, and a lot of them are rights-based. So a Bill of Rights for Northern Ireland was part of the Northern Ireland Human Rights Commission’s work, which was to create a series of recommendations for a Bill of Rights. They did that in 2007 and 2008. The Northern Ireland office basically vetoed taking it forward, and subsequently hasn’t made any more progress on a bill of rights for Northern Ireland. There has been this idea that it requires cross-community support to design a Bill of Rights, and the DUP has historically not been supportive of a bill of rights because they favoured the British Bill of Rights. But that’s not part of the Good Friday Agreement. It was actually a divergence from the text itself. So that’s one of the problems that we face that has wider replicated repercussions around the Brexit debate as well.
In my evidence to the Northern Ireland Affairs Committee, I really tried to hammer home the idea that citizens should be brought back into this conversation that we should be trying to look at having a Northern Ireland citizen’s assembly on Stormont reform. And the idea behind that is that whilst it might only be 100 citizens who will be involved in that structure, it gets a bit more power back to the people on this topic and demonstrates to society that people’s voices are important on this. They could also depoliticise some of the ideas or recommendations. You know, a lot of people that I speak to when you say to them, what about alliances recommendation that if one party opts out, it should go to the next party? Well, people will say that makes perfect sense. So I think that if you give people a little bit more autonomy on this, they will probably deliver ambitious recommendations. There is a commitment to “new decade, new approach” to have one citizens assembly every year in Northern Ireland. We haven’t had one at all, actually. So I think that is something that needs to be looked at and tried to bring people back into the conversation.
JURIST:
JURIST has for a while now been covering the Northern Ireland troubles bill and its path to becoming law. And since then we’ve seen legal challenges at the ECHR. And we’ve seen many contested notions of what that bill should do and what that bill should include. I’ve spoken to victim legal representatives who’ve told me about the bill and how the bill was a clear departure from the rule of law in Northern Ireland. Does this bill do anything to bring Ireland together or does it just serve to divide further?
Emma DeSouza
Well, it does bring together all of Northern Ireland’s political parties in opposition to the Troubles Bill, which is a rare feat in Northern Irish politics, but it does not advance the issues around legacy or the conflict of the past. It serves one purpose, which is to protect perpetrators within the state, and does not provide people with the right to justice. I highly doubt that it’s going to be compatible with the ECHR. I think that it is frankly disgraceful that again, it will be victims groups and individuals who have spent decades trying to find some kind of truth or justice that are going to have to take this through the courts and try to push back against what has been a political decision. It also creates real tension between the UK and Ireland diplomatically, something we haven’t seen for a long time. I mean, Brexit had its own strains, but the fact that the Irish government has to take this forward now in terms of a case against the UK is not ideal, and I think it was a surprising move in many ways because the current Irish government is typically quite cautious. So they obviously felt this was something that they had to do. It does represent a unilateral departure from Stormont House. And I think it’s important to look at Stormont House as something that we can use as a blueprint to try and address these issues. I think it’s a point of concern to you in terms of Labour’s position on this. Labour has said that it will scrap the Legacy Act, but that’s not what I’ve heard in more detail when speaking to Labour representatives. I think it is more likely that if Labour does get into power in the general election, they won’t scrap the Legacy Act. They will simply amend it, and my view is that it’s inevitable. So I think there are questions to be asked of all political parties in terms of what they can do to address these issues. And I don’t think that the Conservatives or Labour have the answer or not.
JURIST:
You bought the first case under the Belfast agreement that resulted in changes to the UK immigration law. How did you do this? What did it achieve?
Emma DeSouza
That was my foray into human rights legislation, citizenship legislation, into how politics works across these islands. Whenever we took this court case, which was back in 2015, it was in relation to a family permit for my husband who is a US citizen. I had applied as an Irish citizen, per my Irish passport. I had never held a British passport and considered myself Irish and didn’t think much of it and we kind of inadvertently found ourselves in what became a five-year-long court case against the Home Office. So I like to refer to myself as an accidental activist because it wasn’t my intention to go forward and take this case, but we ended up in a situation where we found that it was impacting a lot of people in Northern Ireland, whether they were from an Irish background or British background. It was a homeowner’s policy that was incompatible with the Good Friday Agreement. Unfortunately, it took the full five years to get the government to amend legislation. They did bring forward a rift within the settlement scheme that was specific for people in Northern Ireland, that gave them a right to access EU family reunification rights as a European citizen, whether they were Irish or British, or both, and put into legislation a person of Northern Ireland per the terms of the Good Friday Agreement.
Getting that concession like that from the current Conservative government was certainly not an easy thing to achieve. We utilised several things to be able to make that successful. A very important part of that was political lobbying, between getting support in the UK from the SNP (Scottish National Party), from Labour, and from some secret Conservative politicians. We also got support from the Irish Government, the European Commission, and also the US Congress on both sides of the aisle.
My lawyer at the time was quite nervous about the idea of going to the press. We weren’t sure how it was going to be received. But in the end, it proved to be actually a very useful tool. I have found that in relation to immigration issues, the media can be very useful in terms of highlighting injustices from the Home Office. There was a different case that I was helping someone with, and we went to the press about it, and the Home Office called the next day, four times within an hour, and quickly resolved the case. So I think there is something to be said for using the media in that way to be able to highlight some of the injustices that we see in the legal system, and apart from that social media also played a big role. I had to become very media-aware and also had to find a way to learn a lot about citizenship legislation and its compatibility with the Belfast Good Friday Agreement, and then find a way to be able to articulate that in an easy and accessible way so people understood what the issue was. That was a challenge.
But I find at the end of it that changes have benefited everyone in Northern Ireland. Lots of people were able to access their family reunification rights. We still meet people today who say they got in and got settled in Northern Ireland because of our case. And since then, I’ve been working consistently within the field of human rights and political commentary as well. So it kind of changed my life and career.
