Rights and Equality in the Context of Brexit: Discussion

The purpose of this morning's engagement is to discuss the extremely important and pressing subject of rights and equality in the context of Brexit. I extend a warm welcome to Professor Colin Harvey from Queen's University Belfast, Mr. Brian Gormally, director of the Committee on the Administration of Justice, Mr. Les Allamby, chief commissioner, Mr. Colin Caughey, director of the Northern Ireland Human Rights Commission, and Ms Emily Logan, Chief Commissioner, and Dr. Ruth Gallagher, senior adviser, from the Irish Human Rights and Equality Commission.

I will shortly invite our guests to make their opening statements in the order in which I announced them. First, I am obliged to draw their attention to the situation regarding privilege. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded that under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the House or an official in such a way as to make him or her identifiable.

I invite Professor Harvey to deliver his opening statement.

Professor Colin Harvey

I thank the committee for the invitation to appear. I am the professor of human rights law in the school of law at Queen's University Belfast. I led a project funded by the Economic and Social Research Council, ESRC, called Brexit Law NI, looking at the consequences of Brexit for Northern Ireland in the areas of human rights, equality, conflict transformation and constitutional law in practice.

I will speak to three themes: context; Brexit rights and equality; and strengthening the protection of human rights. With regard to context, there is a rights and equality deficit in the North. I would put it as strongly as saying that there is a crisis in the North relating to rights and equality. Brexit is one part of that but it is not the only part. That said, I acknowledge that there have been advances since 1998. There is the Human Rights Act, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the section 75 equality duty. There have been important advances since 1998 in the protection and promotion of human rights but I would like to make clear at the start that the context in the North of this island is profoundly troubling. There is an ongoing crisis relating to human rights and equality.

We know that the UK is leaving the European Union. EU law is one part of a complex arrangement of rights and equality protections in the North that have fundamental significance and importance in supporting and underpinning the peace process in areas such as human rights, equality and socio-economic guarantees in areas such as employment law. The picture is complex but there is no doubt that Brexit will have a serious impact on rights and equality. We must acknowledge that rights and equality have made their way onto the agenda for the Brexit negotiations. I take this opportunity to acknowledge the people both in and beyond this room who made sure that rights and equality featured in that conversation. There was a real risk at the start of all this that rights and equality would be airbrushed out and this would be a narrow conversation. That has not proved to be the case and that is not an accident, due to extensive mobilisation relating to rights and equality by people in and beyond this room. We can see that in the recognition in the joint report from December 2017, the withdrawal agreement, the protocol and the political declaration.

The protocol and withdrawal agreement contain an intriguing formula in respect of the protection of human rights. The agreement indicates that there will be no diminution of Good Friday Agreement rights in the rights, safeguards and equality of opportunity section. It lists relevant provisions of European Union law. The protocol refers to dedicated mechanisms for enforcing the obligation relating to no diminution. We will hear more today about the ongoing conversations regarding those dedicated mechanisms, what they will be and how effective they will be. It recognises the common travel area and its ongoing operation. In the context of the level playing field discussions, we have seen important references in the protocol to socio-economic protections. Important mechanisms are in place in the withdrawal agreement and protocol for enforcement and implementation. They are detailed and complicated and we can talk more about them today. We know there will be a specialised committee in Northern Ireland as one mechanism under that agreement. If the protocol is made operational and enforced, it is clear that rights will inform many elements of the process. As members know, that is a very big if. Even if the withdrawal agreement is secured in Parliament, getting it implemented in practice via legislation passed by Parliament will be an interesting and challenging task.

It is worth noting that these rights elements of the protocol and withdrawal agreement seem not to be the principal source of contention. The real task ahead will be maximising the potential and rights in the withdrawal agreement. Rights are also outlined in the political declaration on future relations. Discussions regarding rights and equality at this phase of the process need to be carried forward.

As many people have stated, it is disappointing that rights of Irish citizens in the North and questions about the identity provisions of the Good Friday Agreement have not featured more prominently than they have in these legal arrangements. Both Governments could address this but it is fair to ask why more was not said about it at this stage. We can discuss that further today.

In terms of strengthening the protection of human rights on the island, as a matter of principle it is important that human rights frame the conversation going forward because it is important the conversation focuses on all of the people of the island of Ireland. In terms of rights reform, it is clear solutions to the human rights and equality deficit exist. There are proposals on the table. The problem is not the lack of solutions. There are credible legal proposals for the North, for example, with regard to a bill of rights, equal marriage, language rights and women's rights. There are, therefore, credible legal ways forward.

It is important the statutory bodies on the island of Ireland in the areas of human rights and equality are fully resourced and supported to do their work. It is important to note the recognition these bodies received through the withdrawal agreement and the recognition that human rights received through the political declaration. Equally important has been the work of civil society on the island of Ireland. In terms of protecting the human rights culture, North and South, it is important that civil society is also supported and resourced effectively to do its work. It is no good talking about civil society and its role in mobilising rights and equality if it is not adequately resourced and supported to do so. There is a crisis in that area right now.

It is important that the joint committee is given a much more central role on human rights on the island of Ireland. Its role could be widened and deepened and its work could be further expanded. How could it include the voices of civil society? How could it speak to many of the questions we will address today? The joint committee will have a fundamental role in the time ahead, not least in protecting the notion of equivalence, which is in the Good Friday Agreement and needs to be revisited by another solution to some of the questions we are talking about today, including the neglected charter of rights on the island of Ireland. There have been proposals for a bill of rights for the North since 2008. There is advice from the joint committee on a charter of rights for the island of Ireland in 2011. Both those matters need to be urgently revisited in the context of the conversation we are having now in addition to the conversations we are having around the withdrawal agreement and the protocol and its implementation.

On strengthening the promotion and protection of human rights, there is a conversation ongoing. That conversation is not regarded as helpful by everyone on the island of Ireland but there is a conversation taking place about the constitutional status of the North. It is reasonable to have this conversation given the terms of the Good Friday Agreement. It is equally important that the discussion on constitutional status includes a human rights and equality framework. Let us be in no doubt, whether it is regarded as helpful or unhelpful, that this discussion has started. It is better to be prepared and plan and frame the conversation around rights and equality protections for everyone on the island.

In the North, there is a crisis and a deficit in regard to rights and equality. We are not starting on a blank page. There are legally credible solutions and proposals to address that crisis. The question I have with regard to the current discussions around Brexit is whether there is a willingness politically - that is where we are at - to confront and address the human rights and equality crisis in the North because legally credible solutions exist to solve that crisis.

I thank Professor Harvey for his written submission. It is very helpful to committee members. I now invite Mr. Gormally, on behalf of the Committee on the Administration of Justice, to deliver his opening statement.

Mr. Brian Gormally

I thank the Chairman and members of the committee for the invitation to give evidence today. The Committee on the Administration of Justice is a Belfast based independent human rights organisation which founds its analysis on international standards and takes no position on the constitutional position of Northern Ireland.

There is no doubt Brexit would damage and reduce protections for human rights and equality in a range of ways. However, today I will concentrate on the damage that may be done, and which to an extent has already been done, to the peace agreement which has brought 20 years of relative peace and stability to our island. Since conflict means a bonfire of rights, defending the peace is the first priority for human rights activists.

We still do not know if Brexit will actually happen or, if it does, in what particular way it will happen. However, the events of the past two and a half years have already damaged the peace settlement and relations across this island. We have no devolved institutions in Northern Ireland and the two major political parties are on opposite sides of an increasingly fractious debate. In our view, whatever happens, we need to rebuild our intertwined societies on the basis of a new dispensation based on human rights and equality. In the coming years, there will be further dislocation and disagreement, whatever happens with Brexit, as the constitutional status of Northern Ireland again comes to the fore with a probable Border poll. We need a resilient society and politics with institutions across the island which people can trust to be fair and transparent. In the briefing we make some proposals that come out of our enhanced understanding of the weaknesses and pressure points the Brexit debate process has laid bare.

The citizenship issue is an example of how basic assumptions of the Good Friday Agreement have been undermined. It recognises the birthright of the people of Northern Ireland to hold Irish or British citizenship on the basis of equality. The basic breach of this principle of equality by Brexit would be that Irish citizens would remain EU citizens whereas British citizens would not. It amounts to a new focus of division between the two main communities. It has also become clear that Brexit could make the status of Irish citizens born in Northern Ireland constitutionally and practically insecure. If Brexit goes ahead, Irish citizens will be EU citizens living in a non-member state. What rights do they have to live, work, access health and social services and fully participate in social and political life in the state where they were born? There are several possible answers to that question. The first possibility is that the Home Office will regard Irish citizens as really British since UK nationality law decrees that most of those born in the UK have British citizenship. The second possibility is that the common travel area will sort all this out but, as the Human Rights Commission has suggested, common travel area rights are built on sand. The third possibility is that under the withdrawal agreement, EU citizens living in the UK can retain many of their current rights by applying for settled status. One must make an application to the Home Office before the transition period ends. Theresa May magnanimously withdrew the £65 charge on Monday afternoon.

None of these options is appealing as they all involve the implication that those who choose Irish identity are in some way second-class citizens. Their rights as full participants in Northern Ireland life would depend on either a denial of their Irish nationality, as yet unknown bilateral agreements between the UK and Ireland about the common travel area or asking the Home Office to graciously allow them to leave to live in the land of their birth.

The reality is that Irish citizens born and living in Northern Ireland have no legal connection to the jurisdiction in which they were born.

Legislation is needed both in the UK and Ireland to recognise the particular status of Irish citizens born in Northern Ireland and their unequivocal right to participate fully in that region and as fully as feasible in Irish society, and full equality in the rights British and Irish citizens can access. A treaty enshrining these provisions in international law would repair some of the damage done to the principle of the agreement.

We also propose the following measures to protect rights in this coming situation of political turmoil. To prevent a racist immigration policy and the territory of Northern Ireland becoming one big border, we propose that the Irish Government reject any practices of racial profiling and begin an open and transparent debate about how immigration into the common travel area is managed.

The charter of rights for the island of Ireland signed by political parties should be revisited. Commitments to decision-making based on human rights and equality, with all the principles of transparency and public involvement that would involve, could be the basis of an island-wide code of political behaviour.

Equivalence in the protection of rights North and South is a basic principle of the agreement. It is important that some way of guaranteeing that rights are and will in perpetuity be protected in an equivalent manner in both jurisdictions is developed. This could be either in compatible legislation or in a treaty.

Abuses of power, sectarian decision-making and a corrosive lack of trust between the two major parties in the North led to the downfall of the devolved institutions. We need an equality-based and a human rights-based return to devolution based on the full implementation of the rights provisions of the peace settlement, particularly the bill of rights, but also addressing international rights obligations and working fully within the existing rules.

Brexit threatens human rights and equality protections in a number of specific ways. However, its main impact has already been to destabilise both the provisions of the peace settlement and the relations between the two jurisdictions on this island. The current uncertainty and political turmoil may subside to an extent, especially if Brexit does not actually proceed, but trust and confidence have already been undermined. Questions of identity and citizenship have been opened up in a way not seen since well before the agreement and those genies cannot be put back in the bottle. We therefore need a set of measures, across the island and, where possible, on the basis of formal treaties between the two sovereign states involved, which can stabilise trust and build resilience as we move into a future of change and challenge.

I thank Mr. Gormally for his presentation and also for the very useful document circulated previously to members.

I now invite the chief commissioner of the Northern Ireland Human Rights Commission, Mr. Les Allamby, to deliver the opening statement on behalf of his organisation.

Mr. Les Allamby

I thank the Chairman and members of the committee for the invitation. I am in your hands, Chairman, and those of your colleagues. In keeping with the joint committee, Ms Logan and I have a joint presentation where the Irish commission will set out the context, the aims we had set ourselves as a joint committee and the work we have done to date. I was then going to provide some analysis of the withdrawal agreement, what we think we have achieved and what needs to be done. It might aid coherence to go the other way. I am happy to speak now.

If Mr. Allamby and Ms Logan have already worked out a formula that works for both---

Ms Emily Logan

We have; it is for ease of reference.

That is what we are all about: bringing you together. We are subjects. Ms Logan has the floor.

Ms Emily Logan

I thank the committee for the invitation to discuss the issues and potential risks raised by Brexit for human rights and equality protection across the island. I am very pleased to be here with our colleagues from the Northern Ireland Human Rights Commission, addressing the committee on this occasion in our capacity as the joint committee of both commissions established in the Good Friday Agreement.

The Belfast or Good Friday Agreement has legal status within international law as a peace treaty lodged with the United Nations. The agreement laid down not only a mandate for both national human rights institutions, but also the mechanism to ensure strong co-operation between them by way of the joint committee with representatives of the two bodies North and South "as a forum for consideration of human rights issues in the island of Ireland".

As members can see today, there is strong trust and a strong shared sense of purpose across both commissions. Today is an important opportunity to recall the commitments made back in 1998, which were grounded in the human rights and equality provisions of the 1998 agreement. However, as members know, the human rights and equality framework contained in the agreement assumed that the UK and Ireland would continue to be members of the European Union. Although the joint report of December 2017 committed to protecting the agreement in all its parts, Brexit negotiations currently depart from that common framework creating risks for both rights and remedies.

While the joint committee has worked collaboratively for many years, I will limit my remarks to the joint committee’s work relevant to today’s discussion. As a joint committee, we were pleased to see the UK’s commitment to no diminution of rights as to protecting the Good Friday Agreement, in the joint report of December 2017. In March 2018, the joint committee published its policy statement on the matter and made six key recommendations that ought to be adhered to in the UK-EU negotiations on the withdrawal agreement that followed.

First, we strongly recommended the retention of the EU Charter of Fundamental Rights in UK law, as well as a clear and enforceable commitment to no diminution of human rights and equality standards following withdrawal. The UK Government committed in December 2017 to ensuring that no diminution of rights is caused by its departure from the European Union. The draft withdrawal agreement published in November 2018 narrowed this commitment to the rights included in the rights, safeguards and equality of opportunity section of the Good Friday Agreement 1998 insofar as those rights or standards are protected by EU membership.

We called for the withdrawal agreement to provide for the continuing North-South equivalence of rights.

We believe that the offer of continued EU citizenship or equivalent rights should be extended to all the people of Northern Ireland as defined by the Good Friday Agreement, given recognition of "the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose". The last situation we wish to see is one where the people of Northern Ireland feel forced to choose an identity based on what they think their post-Brexit entitlements might be.

We believe that any increase in border controls would impact negatively on the exercise of rights. People on both sides of the Border between Ireland and Northern Ireland regularly cross the Border to exercise their right to work, to access public services, including health and education, and to visit family, for example. The protection of Border communities and migrant workers remains paramount when we consider issues that go beyond the common travel area arrangements in terms of protecting rights.

The fifth recommendation is about ensuring evolving justice arrangements comply with the commitment to non-diminution of rights, which continues to be a concern for the joint committee. These include the operation of the European arrest warrant; how prisoners are repatriated and transferred between member states; how policing co-operation takes place when the UK is no longer a member of Europol; how information and data are shared for criminal justice purposes; and how cross-Border justice arrangements will take place on the island of Ireland. The protection of human rights is closely linked to ensuring accountability for human rights violations and co-operation in criminal justice investigations is, therefore, critical.

The final recommendation by the joint committee is the right to participation in public life, another aspect of the North-South equivalence of rights under the 1998 agreement. It is important to consider how those in Northern Ireland, to whom EU citizenship is to be offered exceptionally after Brexit, will continue to be represented in EU democratic institutions.

I repeat and reiterate Professor Harvey's point about recognising the contribution of people both here today and beyond who have ensured that human rights and equality have been given the attention they deserve.

For the purpose of the meeting, I will chronicle the efforts of the joint committee North and South, particularly throughout 2018. It started by meeting the Tánaiste, Deputy Coveney, and the Brexit co-ordination team in the Department of Foreign Affairs and Trade. We met ambassadors and key officials in the UK and Irish permanent missions at the United Nations Office in Geneva and the EU in Brussels. We met the Article 50 task force on three occasions in 2018, including chief negotiator, Mr. Michel Barnier, deputy chief negotiator, Ms Sabine Weyand, and Northern Ireland adviser, Ms Nina Obermaier. We travelled to Westminster to meet with Mr. Robin Walker MP, Parliamentary Under-Secretary of State at the Department for Exiting the European Union, and his officials. We also met Lord Duncan, Parliamentary Under-Secretary of State for Northern Ireland, at Stormont House a number of times. In each of these meetings, and in particular with the task force, we made clear that, as a joint committee with a mandate in statute, we wished to have as formal a role as possible in the post-Brexit monitoring of human rights and equality on the island of Ireland.

In November 2018, we launched research commissioned by the joint committee and carried out by academics at Newcastle University, Durham University and the University of Birmingham. The research recommended that both the Irish and UK Governments should look to secure a “gold standard” approach through a new intergovernmental common travel arrangement, provided through a treaty. Such a treaty would formalise common immigration rules, travel rights, residency rights and related rights to education, social security, work, health, security and justice. Of particular concern in our work at this crucial period of the negotiations, and possibly also of concern to the justice and equality committee, are the issues of North-South equivalence of rights on an ongoing basis and the guarantee of equality of citizenship.

I thank the committee for the invitation to appear before it.

I call Mr. Allamby to make his opening statement.

Mr. Les Allamby

I thank the Chairman and the committee for the invitation. I start by endorsing Ms Logan's remarks on the level of engagement we have had with the British and Irish Governments and the Commission's Article 50 task force, and paying tribute to the work of human rights non-governmental organisations. Both the organisations, which are present, and others in civic society have played an active role in the campaign and debate about the ramifications of leaving the EU for human rights and equality.

The six recommendations of the joint committee that were outlined by Ms Logan had twin aims, namely, to preserve the existing human rights protections and keep pace, at the least, with human rights and equality developments as they progress within the EU in the future. We recognise, therefore, both preservation and development as key aspects of the matter. Our view is that the draft withdrawal agreement suggests substantial progress has been made but there are also significant gaps. I will start with the good news before speaking about where work still needs to be done.

The Ireland-Northern Ireland protocol contains a number of important provisions, which should not be underestimated. First, the UK Government has a commitment to ensuring no diminution of the rights contained within the rights, safeguards and equality of opportunity section of the 1998 agreement as a result of leaving the EU. I emphasise that I refer to one part of the agreement rather than the whole agreement, although ideally we would have liked to have seen a commitment to the whole agreement.

Second, a number of specific EU directives will continue to have effect in Northern Ireland covering equal treatment such as in accessing goods and services, employment, self-employment and social security alongside equal treatment between persons of racial or ethnic origin, which extends to other groups. Those commitments cover both existing protection and keeping pace with future EU protections, which gives Northern Ireland some additional protections to the rest of the UK.

Third, and importantly, the UK and Irish Governments will continue to be able to make arrangements for the common travel area, including offering more favourable treatment between the two countries than to other EU citizens in certain circumstances.

Fourth, existing North-South co-operation will be maintained in a number of areas, including justice and security, which is particularly important, and both Governments may continue to build on the provision of the Good Friday Agreement in other areas of North-South co-operation while respecting EU law.

Fifth, institutional arrangements will be put in place to oversee the protocol and, in turn, those arrangements can fit into the full oversight architecture within the withdrawal agreement, the importance of which Professor Harvey mentioned.

A number of outstanding issues, however, remain to be resolved. First, the scope and extent of the protections provided by the non-diminution commitment within the rights, safeguards and equality of opportunities section of the 1998 agreement needs to be determined. That section was not drafted with EU law in mind, as the assumption was that we would remain within the EU. It contains a number of specific commitments to rights but also embraces broader aims, such as social inclusion; the advancement of women in public life; respect, understanding and tolerance in relation to linguistic diversity; and victims’ rights to remember and contribute to a changed society. How these broad concepts will be translated and interpreted with reference to EU law remains to be seen. We take an expansive view but whether the courts will take the same view is a matter of conjecture. We have argued strongly that explicit reference, as a minimum, should be made to a number of other EU directives, for example, on parental leave, rights of pregnant workers and rights of victims. We argue that they should also be covered by the non-diminution commitment. Whether they will be remains to be confirmed but the equality commission and the joint committee have made strong representations in that regard.

Second, there is the UK Government’s decision to be no longer bound by the EU Charter of Fundamental Rights. The charter largely mirrors the rights contained in the European Convention on Human Rights but goes further by including a number of economic and social rights. As Mr. Gormally outlined, the 1998 agreement envisaged a bill of rights for Northern Ireland supplementing the rights contained in the convention to reflect the particular circumstances of Northern Ireland, drawing on international instruments and experience. In effect, a bill of rights was to provide a "convention-plus" approach to human rights protection. Although the charter post-dates the 1998 agreement and applies it only in conjunction with EU law, the charter remains the closest equivalent to a "convention-plus" approach contemplated in a bill of rights.

It has been argued that while the draft withdrawal agreement does not incorporate the charter into Northern Ireland law, other provisions within the withdrawal agreement mean that the charter would apply extensively. Moreover, the UK Government has argued that much of the charter will be retained in either common law or statute law. Nonetheless, the loss of the EU charter in its current form would lead to a loss of legal certainty and consistency, as legal cases would have to argue that the charter applies as well as how it applies. In addition, the charter is an accessible document and the wider understanding of rights would be hampered through the failure to incorporate it within the draft withdrawal agreement. The retention of the charter would also provide a degree of continuing equivalence of rights throughout the island of Ireland and, therefore, is in line with the spirit of the 1998 agreement. For all those reasons, the commission continues to hold that the charter should be retained for Northern Ireland at least until a bill of rights for Northern Ireland is introduced.

Third, while confirmation that the common travel area will continue is welcome, leaving the EU changes the legal dynamic underpinning the existing and future arrangements, particularly for freedom of movement. The formal legal underpinnings are relatively scant, as outlined in the work the joint committee commissioned, and rely on the provisions of EU law governing freedom of movement and other associated rights. Although I recognise there is no desire in the UK or Irish Governments to dilute common travel arrangements at this point, to safeguard against any future dilution we recommend that the two Governments should agree a common travel area treaty, covering common immigration rules, travel rights, residency rights and related rights to education, social security, work, health, security and justice. Moreover, access to some rights in a cross-Border setting remains determined by EU law rather than the common travel area, and childcare support within UK social security benefits is one example. The common travel area, therefore, is not the answer to all the ills of rights for cross-Border workers.

Fourth, is the extent of the commitment made in the 2017 report that people who are Irish citizens will continue to enjoy rights as EU citizens. What that means in practice remains unclear. Focusing solely on those who identify as Irish within Northern Ireland creates a potential towards unequal citizenship counter to the principles of the 1998 agreement unless those rights are extended to all the people of Northern Ireland, whether they identify themselves as British, British and Irish, or Irish. The commission's assessment, on the basis of what we have seen since the December 2017 report, is that the ambition of those initial intentions from within the EU 27 have been significantly tempered and we would like to see clarity as to what exactly the rights and entitlements will be for Irish citizens in Northern Ireland when the UK leaves the European Union.

Fifth, the long-term arrangements on the issues of justice, security and data sharing arrangements are very important and have yet to be agreed. That includes the continuation of the European arrest warrant, and the question of how oversight and redress is maintained given the UK Government's red line that it wishes to leave the Court of Justice of the European Union. We still do not know in detail what the bespoke alternative is. It is the fine detail that always counts on these issues.

On the sixth recommendation, EU law has provided significant rights and protections for people living in Northern Ireland. The withdrawal agreement cements some of those protections but by no means all of them. It seems to us that there is a real likelihood of Northern Ireland diverging from Ireland and other EU member states in EU-led rights protections. We have seen how Northern Ireland has fallen behind other parts of the UK in terms of the single Equality Act, equal marriage, rights to abortion, etc. Those are all issues that we could see in the future where Northern Ireland would be a back marker rather than a leader in the development of rights, without the important value of EU law to provide some underpinning protection.

Finally, there is the value of the dedicated mechanism alluded to by Professor Harvey. Its effectiveness will be determined by the statutory powers and the mandate given to the two commissions and the joint committee and the resources provided to the commissions. Alongside that, we have also argued very strongly that there must be individual rights of enforcement, with access to legal aid for those on low incomes. Separate individual rights enforcement have not been confirmed in the protocol, although we anticipate that will happen. We do not think that the commission should be the only place that people should be able to enforce their rights. People should have the choice to do that of their own volition as well as through the commissions.

There remains a great deal to be done, assuming the withdrawal agreement eventually comes into effect. We are committed to continuing to battle for those issues that we have identified.

I thank Mr. Allamby and Ms Logan for their joint approach. Before I bring in members, it is important to state that this committee unanimously agreed to address this whole matter. It is a recognition on all our parts and the diverse politics we represent that this is the most important issue that we face on this island, arguably in our lifetime but certainly in the lifetime of our children. It could have a seismic impact on all our lives and on every aspect of life, including in the areas of rights and equality. As the Joint Committee on Justice and Equality, we felt it was our responsibility to accommodate this address this morning. Again, I thank each of the witnesses for their respective contributions both orally and in writing in advance of today's hearing.

A number of members have indicated that they wish to speak. The first of those is Senator Ó Donnghaile who will be followed by Deputy O'Callaghan. I will call members as they indicate but that is the list so far.

I thank the Chairman and all our visitors. There is a fair amount to get through in terms of the contributions and in addition to them. I have a number of questions, which I wish to hone in on, with the indulgence of the Chairman. On Mr. Allamby's fourth point on citizenship rights post-Brexit and the rights that will continue to be enjoyed or will not be enjoyed, he is right in that regard but I would add on to that that a failure to recognise, implement or legislate for Irish citizens in the North sustains an inequality, in itself. I accept the point that we need to include and recognise all the citizens in the North. However, we also need to be careful that we do not leave a significant chunk of the population behind by not legislating for their rights in the current context.

The second point I wish to make is on Mr. Gormally's presentation and it touches on some of Professor Harvey's points around the basic assumptions of the Good Friday Agreement being undermined by Brexit. He is absolutely right. I have been saying from the very start of this. The European Parliament's constitutional affairs committee said from the outset that Brexit would require an alteration of the Good Friday Agreement. This also flags the point that so many aspects of the Good Friday Agreement remain unimplemented in terms of our rights. He made a number of points about the constitutionally and practically insecure nature of our rights of Irish citizens who are resident in the North.

The points around the British Home Office, in particular, are pertinent and are live because of the de Souza case. I do not wish to go to deep into that because there is an ongoing appeal in relation to that case. The point around the possibility of the Home Office regarding citizens as British is not a presumption, it is happening. The de Souza case shows us that this is happening. The presumption is that people like the de Souzas and people like me and everyone in the North are automatically presumed to be British citizens, and that is the legislation that applies to them.

For me, who is nowhere near as eminent as our witnesses on these issues, that is in direct contradiction to the citizenship aspect of the Good Friday agreement. The point was made about both Governments legislating but I do not sense an appetite within the British system to legislate for our rights given what it is inflicting on us at the moment. How does the Irish Government legislate or bring proposals forward that protect and uphold our rights as citizens? I have been asking it for a long time what our rights as Irish citizens are, beyond the holding of a passport, but it has not been able to tell me. Could our witnesses expand on some ideas around that issue?

On the issue of democratic representation and voting rights, that is, to continue to elect representatives to the European Parliament, my colleague, Martina Anderson, MEP, sought legal advice. The Irish Government could have provided the additional two seats allocated to Ireland for people who are resident in the North but it decided not to do so. Is it too late? Are there other avenues or examples where people may have the opportunity to elect people to elected fora outside of the jurisdiction?

I would like to ask all the witnesses, but, in particular, Mr. Allamby, about the European Charter for Regional and Minority Languages. The British Government is signed up to the charter. Limited and marginal as it is, it is probably the only protection for indigenous and minority languages in the North. Has any research or scoping been done, given the political dynamic around language issues and the demand for proper legislation? That is really the only thing we have. Are we in danger of losing that and what threat does it pose?

I thank the Senator. I hope the witnesses had their pens because there was a compendium of questions there. I will start with Professor Harvey but before I do, I wish to flag that the importance of this meeting cannot be overstated. I would like indicate to members and our guests that we have arranged with the communications unit, which I commented on earlier, to have a group photograph at the end of our meeting if those present are happy to join us. If colleagues were planning to escape to other climes in this institution, perhaps they might like to stay until the end.

We would never try to escape.

You are trying to drive us away.

I invite Professor Harvey to respond to Senator Ó Donnghaile's observations and questions.

Professor Colin Harvey

In terms of context, I am disappointed that although some of the complex issues arising from the situation and the agreement are much talked about, we have yet to see evidence that all the consequences have been fully worked through, concretely and legally, at this stage. I was disappointed to see, in the context of paragraph 52 of the joint report from December 2017, that there has not been more progress in respect of the unique circumstances of Northern Ireland in this conversation. These are precisely the types of questions on which we need clarity.

There are two matters with regard to the birthright issue. First, it is not well understood either in Britain or on this island. Some of the matters we are talking about today will require work by the British Government but a number of them will require work by the Irish Government to make them legally meaningful. The birthright provisions of the agreement are not well understood, and we are talking about an international treaty that brings obligations with it. There is also something that many of us here are tired of saying, which is that the Good Friday Agreement has not been effectively implemented in domestic law in the UK. There has been a failure of effective and comprehensive implementation of the agreement and this is one example of that. There is the issue of misunderstanding but there is also the issue of follow through and changing domestic law to reflect the complexities of this provision. Otherwise people will find themselves in a bureaucratic mess. That also relates to the European Union in its negotiations on this with regard to providing necessary assurances in the context of the current conversation. The bill of rights proposals from the Northern Ireland Human Rights Commission in 2008 need to be dusted off. There was an attempt in those proposals to grapple with some of this and to formalise aspects of the agreement that had been neglected. In other work I have been doing with Dr. Anne Smith at Ulster University on the bill of rights we talk about a formalisation gap. Given that people are so keen on the Good Friday Agreement we need to see some of it implemented more effectively.

That is also true of the conversation we have heard regarding the common travel area. There is much talk about the common travel area but what has emerged as a matter of absolute urgency in both jurisdictions is the need to formalise and codify the common travel area. Mr. Les Allamby spoke about it being written in sand. There is an emerging consensus that there must be a bilateral treaty, and it should be a comprehensive treaty, to make the common travel area rights meaningful in practice. There is a formalisation gap in that regard too. These are issues for the Irish Government. Ireland has to be sure that its domestic law, policy and practice respect the common travel area as well. We need to have that conversation on this island, so there are things that could be done.

Voting rights for the European Parliament is something that frustrates me. Throughout the Brexit negotiations people have used language referring to imagination, creativity and flexibility, but that has not been evident in the discussions on, for example, voting rights. There is a view that this is possible and doable. If there is political will in this jurisdiction to do this, it can be done. This is an area where a little imagination and creativity should be exercised by the Irish Government with regard to voting rights for the North. It is very disappointing to hear people say it is unrealistic and impossible when it is quite clear that aspects of it are legally doable. Some of that would also address some of the problems that are emerging in discussions around the protocol. One of the criticisms of the protocol on the backstop is about the democratic deficit. Perhaps one way to deal with an aspect of that is around the extension of voting rights in the North and handling the complexities of that, whether that is on this island or in the context of the EU-UK negotiations.

The big issue for me is that Brexit is highlighting a formalisation and codification gap in respect of the Good Friday Agreement and the common travel area. There are things the Irish Government could be doing to follow through on this. It is important that it does its bit in the context of this discussion.

If our guests wish to respond to something particular in the Senator's contribution it is open to them to do so. I invite Mr. Gormally to respond.

Mr. Brian Gormally

There is a great deal to get through but I will try to be brief. We must look at what the Good Friday Agreement was meant to do when considering the citizenship issue. Generally, human rights organisations do not get involved in citizenship because human rights are human rights irrespective of citizenship. In this case, however, the Good Friday Agreement was about creating a geographical and political space that could be shared by people with different national identities and allegiances. That was at least one of the fundamental principles under the agreement. As part of that, full equality between people's choice of citizenship must be maintained. As we said earlier, the British Government unilaterally deprives British citizens born in the North of their right to be EU citizens. We suggested treating everybody born in the North as EU citizens on the basis of a reciprocal arrangement that would allow free movement into the North and would make this island a unit from that point of view. That has not been taken up.

As to what the rights of Irish citizens as EU citizens are, as Mr. Les Allamby has said that is still not clear but-----

That is the pertinent question at the heart of this. In addition, what are Irish citizens' rights as Irish citizens? Before the EU can legislate for us, the Irish Government must legislate for us. I can apply for an Irish passport and travel around the world with it. I can move freely at present around the island of Ireland. Beyond that, however, as the de Souza case shows, the unilateral presumption by one party to the Good Friday Agreement is that, despite what the Good Friday Agreement says, its legislative outcomes and its lodging with the UN, EU and so forth, all of us born 20 years after the Agreement was signed are British until such time as we renounce this citizenship we have never held and do not want, with the greatest respect and no harm. That relates to everything Mr. Gormally just said about competing nationalities and allegiances. There is a legislative requirement, and despite what the Home Office said it is taking people through the courts. It is defying the word, letter and spirit of the Good Friday Agreement by saying all of that is well and good. The Irish Government, and I understand it up to a point, remains silent on that. We are in the middle of a negotiation and there might be a degree of sense in doing that, but there is no evidence for me or for the people who have to go through this that the Irish Government is legislating for our rights in this circumstance. It is not happening. Essentially, we have British citizenship imposed on us not just in that case but also unless there are the legislative instruments required from this jurisdiction and from the EU to protect us against it.

This comes back to Mr. Les Allamby's point. I will not be a second class citizen but a third or fourth class citizen resident in the North because of what we are seeing transpire and also because the Irish Government, which adopted all the parts of the Good Friday Agreement in the Constitution, is not legislating for our rights. I appreciate this is just one point but it is one I feel strongly about. It is one that institutions, society and rights and civic organisations here must absorb and understand.

Irish citizens in Donegal, Omagh, Strabane and Belfast are not quasi-Irish citizens or some other category but are Irish citizens whose rights are in jeopardy at present. We need the level of mobilisation we have seen from civic society in the North among civic and human rights organisations in this State that will state this is unacceptable and that the Irish Government in the context of Brexit needs to protect those people.

Mr. Brian Gormally

The point is that Brexit has peeled away and shown the lack of proper legislative and constitutional underpinning of the Good Friday Agreement as Professor Harvey has just been saying. An Irish citizen does not by virtue of his or her Irish citizenship have the right to live and reside in Northern Ireland under UK law. That is what needs to be changed. The UK needs to legislate and very likely the Irish Government also needs to legislate; what we would argue is that should be given international legal effect by a treaty. That is what is necessary to underpin the Good Friday Agreement. It has taken two and a half years of debate for the realisation to become clear that there is not the same legal underpinning of the rights of Irish citizens as there are of British citizens in terms of the rights within the territory of Northern Ireland. These may seem abstruse legal technicalities but as the Senator's impassioned points have demonstrated this actually goes to the heart of identity. It goes to the heart of what the Good Friday Agreement was supposed to do and where it has not been fully implemented, and demonstrates the danger of Brexit to the Agreement.

I thank Mr.Gormally. I now invite Mr. Allamby to contribute.

Mr. Les Allamby

I will simply try to deal with all three points succinctly. I recognise that the Good Friday Agreement was very much about identity rights, it was also about parity of esteem. What we have tried to do as a joint committee in our discussions with the UK Government has been to seek to recognise that this entails recognising both the rights of those who are Irish and those who are British in Northern Ireland. This has different dimensions. I think there are some answers. As Professor Harvey has suggested it is one of the areas that was interrogated in some detail in the advice that was given by the Northern Ireland Human Rights Commission in 2008. In terms of solutions, a bill of rights is one of the places in which some of these issues could be dealt with. I am not sure that it could be comprehensively argued but the common travel area and having some kind of international treaty or bilateral agreement is where one potentially could deal with some of the issues. It is clear from an White Paper on immigration in the UK that it will, to put it slightly simplistically but not far off the mark, be treating EU citizens in the future broadly in the same way that non-EU citizens are currently treated, so the issue of freedom of movement and the rights of Irish citizens makes the common travel area and some of these other issues even more important. I think answers to some of these questions could be found.

I should comment on the Good Friday Agreement. The rights and what I term the participatory elements of the Good Friday Agreement are unfinished business. It is not just a bill of rights for Northern Ireland, it is the all-Ireland charter of rights - which was mentioned by Professor Harvey, it is the civic forum or some equivalent, none of which has been put in place 20 years on. That is a big gap in terms of the Agreement.

In terms of the representation rights, I think that while there are clearly some EU elements to this, a great deal of it probably falls within the remit of the Irish Government. There are other member states where citizens from outside of the country can vote in elections, so it is not as if that is not an issue that has been addressed in many other member states.

The major irony and the obvious point is that the Government is telling us that it will legislate for constitutional reform to give voting rights for presidential elections to Irish people living outside the State. Surely one would imagine that if the Government can legislate for that, then it can legislate for residents outside the State to elect members to the European institutions. That may be a bit simplistic but it is certainly a point that jumps out at me right away.

Mr. Les Allamby

It is clear that Irish citizens in Northern Ireland will still have access to EU institutions. That is one of the areas where the EU 27 are on record about what Irish citizens will retain. An interesting aspect for me is that access to those institutions are probably the only area where they have been clear about what rights will be retained by EU citizens. Beyond that, freedom from discrimination, freedom to assert one's national rights have been set in very broad terms but what they mean in practice is very unclear. My guess is that the Irish Government is hoping for an EU 27-wide UK negotiated solution, in other words the UK Government is on record as wanting for example all UK citizens to retain access to the European health insurance card, access to educational opportunities across the EU in the Erasmus programme etc. and therefore if that kind of agreement is reached then the gap between Irish citizens in Northern Ireland and those who identify as British in Northern Ireland will be relatively small. If, on the other hand, there is no agreement on some of those core issues, when one moves outside of Northern Ireland to the rest of EU, then the gap between the Irish and British citizens will be very different and one has the internal issues that Professor Harvey has alluded to around Irish citizenship, the De Souza case etc.

The third issue, the European Charter of regional and minority languages, the question of trying to get within the withdrawal agreement some reference to what will be covered in terms of language rights, given that it is in the relevant section of the agreement has been a point of discussion between the Irish Human Rights and Equality Commission and the UK Government. I am not sure we have convinced them that it should be explicitly put into any kind of document that might follow the withdrawal agreement to flesh out the detail but it remains in play. How one translates the rights contained in the Good Friday Agreement and some of the broad concepts into EU law will become a matter for the withdrawal agreement. No doubt people will come to both commissions, people may come to lawyers and I suspect that is an issue that will be in play if the withdrawal agreement is introduced. What the outcome of that will be remains to be seen. I would be surprised to see it explicitly put into any kind of document that states definitely that, yes, it is contained. I do not think that one can legitimately put in a document that it is not, so I suspect that it will be one of those areas where we will see how it is interpreted in practice.

Does Ms Logan wish to add anything?

Ms Emily Logan

I am more than happy.

Is Senator Ó Donnghaile happy? Does he rest his case?

I do not know about that.

Senator Ó Donnghaile by the way is sometimes affectionately referred to as the Teachta Dála, TD, for the Short Strand.

I thank the witnesses for coming before us. It is very interesting to listen to the witness speak on this complicated issue. Obviously at the time of the Brexit referendum, very little attention was given to the impact it would have upon Ireland and in particular on Northern Ireland. Similarly, notwithstanding their efforts, I think insufficient attention has been given to the impact Brexit will have on the rights of individuals in Northern Ireland, irrespective of which citizenship they carry.

I wish to probe a little deeper into the issues raised by Senator Ó Donnghaile as my understanding is not as advanced as his.

At present everyone born in Northern Ireland is a citizen of the EU. Some are Irish citizens, some are British citizens and some are both. What is the legal basis upon which those who are Irish citizens and do not want to be British citizens will reside and work in Northern Ireland after Brexit? Is it that under the British Nationality Act 1981 they are automatically deemed to be British?

Who would the Deputy like to take this up?

Anyone, maybe Mr. Gormally.

Mr. Brian Gormally

Yes, at the moment that is the only legal basis as far as we can see. Interestingly, the Home Office realised that at this moment if an Irish citizen goes outside the common travel area, CTA, and wishes to come back there is no legal basis for doing so. There is draft legislation in the House of Commons to remedy that aspect. This is the fundamental underlying point. The status of Irish citizenship vis-à-vis rights in the North is only at the moment effective by virtue of their being EU citizens. Once Brexit happens the only legal basis underlying things is, as the Deputy correctly says, the British Nationality Act 1981 which, with some exceptions, says that people born in the UK are to be regarded as British citizens.

Does a person have to do anything to invoke citizenship under the British Nationality Act 1981 or is it automatically assumed that someone is British because he is she was born in the UK?

Mr. Brian Gormally

People do not have to do anything as it is automatically assumed. The situation with Irish citizenship is more complicated. People must do something that only an Irish citizen could do usually, namely, apply for a passport. That is then backdated to birth. In any event, most Irish citizens in the North are so by virtue of descent as well.

That Act predated the agreement in 1998 and the point being made is that agreement recognises the political entitlement of every person in Northern Ireland to in effect choose citizenship.

Mr. Brian Gormally

That is right.

The point being made by Senator Ó Donnghaile and others is presumably that when Brexit occurs they will have forced upon them British citizenship, which they do not wish to have, for the purpose of effecting their rights to work, of residency and all basic rights.

Mr. Brian Gormally

That is right.

It is worth pointing out that this is being contested in a court at the moment. At first, the judge considered that the Good Friday Agreement preceded the British Nationality Act 1981. There is a live case around that.

Mr. Gormally's point is that one of the options may be that Irish citizens in Northern Ireland would, or may, have to apply for the settled status that has been identified by the British Government. Is that the point he was making?

Mr. Brian Gormally

It is not a question that they would necessarily have to do so in order to access rights but it is certainly a way in which existing rights could be maintained. I find it difficult to envisage that many people in the North would want to go down the route of asking the Home Office whether they have the right to remain in the land of their birth. In principle, however, that is the case. We do not know yet and we asked a junior Northern Ireland Office Minister whether the Home Office would accept such an application from somebody born in Northern Ireland. He said he did not know and would get back to us in writing. That was a few weeks back, before Christmas, and we have not yet received his response. We do not know what line the Home Office would take.

The point of this is not in a sense to get into the complexities of nationality and citizenship law but to demonstrate how Brexit has exposed the lack of a proper legal underpinning to the Good Friday Agreement.

Professor Colin Harvey

There is also a wider lesson which resonates for the debate on human rights. One of the challenges learned from the Good Friday Agreement, the British-Irish Agreement, is that people have been saying for a long time that aspects of it have not been implemented or enforced. There is very little we can do about that. Domestic law in the UK - the British constitutional context - really matters given the peculiarities of the British constitutional system. One of the challenges of the Good Friday Agreement, the British-Irish Agreement, was what to do if there is a breach in domestic law within the UK. That has informed the debate around the negotiations with the EU and the discussions on the withdrawal agreement, the protocol and everything else. In terms of the conversations we are having on rights, it is no good thinking one has paper rights if they are not enforceable. That applies to the broader human rights conversation. That is really important for the future UK that is out of European Union, where we lose that European Union background and framework. The important lesson in all this is to make sure the rights one has signed up to are enforceable and one can do something about them. Brexit is exposing that and people are trying to learn the lessons from that.

To switch to a separate conversation, a similar issue arises with the common travel area. The Commission's work has pointed this out. People talk about the CTA as if it is a thing but what research has found, and the Commission has pointed out, is that it is built on sand, legally. It needs to be codified and written down. The reason people are emphasising a treaty is that we need not just to think what are the rights but what to do about them. Irish citizens in the North and Britain need to know that in 20 years' time, without exaggerating this, they will not end up in a Windrush scenario in a British or Northern context. The Deputy's question is exposing that sharply.

People need to know the source of their human rights. The witnesses are experts in human rights but when it comes to identifying the rights they enjoy, for example, I know mine come from the Constitution, the EU Charter, the Convention on Human Rights and Irish statutory law but the rights of a person of Irish citizenship in Northern Ireland after Brexit do not emanate from Europe. They may have rights from their Irish citizenship but in practical terms that does not give them much if they are living in Northern Ireland, in terms of accessing and remedying interference in those rights.

Professor Colin Harvey

It is important to bear in mind that the rights and equality framework in Northern Ireland is complex and multilayered internationally and domestically. There will still be a range of international human rights obligations that the UK will be bound by in Northern Ireland. The UK is not leaving the Council of Europe and the European Convention on Human Rights and Human Rights Act 1998 are still there.

On the specific issue about the rights of Irish citizens, the birthright provisions of the Good Friday Agreement are not well understood on these islands and are not effectively implemented in domestic law, policy and practice. That needs to change and can be fixed.

Is Professor Harvey referring to this jurisdiction?

Professor Colin Harvey

In terms of the Northern Ireland context and the discussion about the birthright provisions for Irish citizens, that specific point needs to be addressed and fixed. It is a bigger point and it is that the Good Friday Agreement has not been fully and comprehensively implemented in domestic law in the UK and those birthright provisions have not been fully implemented.

Is the failure to implement the bill of rights the major defect or are there statutory failures?

Professor Colin Harvey

Let me complicate the answer. We were all involved in the conversation around the bill of rights. It remains important because serious people around these islands, in the Human Rights Commission and beyond, sat down over many years and tried to think through in concrete legal terms how to do all of these things in a bill of rights or human rights instrument, including the things the Deputy is referring to on citizenship and the broader human rights picture.

They tried to think about that within the complexity of the North and in a both-and way, that one respects the identity of British and Irish citizens and one protects the broader human rights framework. That is why the bill of rights needs to be dusted off. People spent an awful lot of time trying to think through these things.

What happened to it? Did they get bogged down in politics?

Professor Colin Harvey

The commission submitted its proposals to the British Government in December 2008, approximately ten years ago. It has largely been rejected and is currently stalled. My personal take on it is that it, along with a range of other issues, is stalled because the British Government is pointing to a lack of political consensus in the North on this issue and on a range of other issues. I go back to my starting point in that it joins a long list of things that are blocked or stalled. That is why I started by saying it was a crisis.

I know people who work in human rights and people like me are sometimes accused of coming up with a list of problems. One of the things that is remarkable about the work that all the people here do is that they come up with solutions to these problems, but they need to be implemented.

Mr. Allamby wanted to come back in here.

Mr. Les Allamby

I will make one quick point and then I will ask my colleague, Mr. Caughey, to pick up on the bill of rights question.

One of the difficulties with settled status, for example, is that even if the response to CAJ is that one can apply, it carries with it implications that if one leaves the UK beyond a period of time, one cannot automatically return. There is not a one bound free solution by asserting one's settled status. There are some ramifications for doing that. I do not see that as the answer to Senator Ó Donnghaile's concerns on the issues raised by CAJ. One would have to find some other solution. Settled status, given what it means for those elsewhere in the EU who apply for it, has some ramifications if one leaves the UK beyond a period of time. It does not seem very attractive to me to say to people who are Irish that settled status does not carry some risks.

What would Mr. Allamby say about the argument that people in Northern Ireland will still have the benefit of the European Convention on Human Rights and in that respect their rights will be protected in the same way as in the charter, even though it provides a little bit more?

Mr. Les Allamby

My answer to that is a qualified "Yes". At one stage the UK Government talked about the possibly leaving the Council of Europe but all of that has now been cleared. We have a Human Rights Act, which is the basis on which the convention has been incorporated into UK domestic law. It is quite clear that the UK Government's commitment to the Human Rights Act will be retained right up to leaving the EU. There are no plans to reform or repeal it. It has made it very clear that once it leaves the EU, it will look again at the issue. Therefore, the protections one has in domestic law, based on the convention - and we know that because of the history of the island of Ireland and having to go to Strasbourg in the absence of domestically incorporating the law - make a difference. There are areas of EU law that go beyond the convention. The convention is a very important bulwark but it is not the only one.

Can I ask Ms Logan if there is anything the State here should be doing to try to protect and vindicate the rights of persons in respect of their citizenship in Northern Ireland?

Ms Emily Logan

It is only to echo Professor Harvey's points on implementing the legal underpinnings and the credible legal solutions to implementing the Good Friday Agreement, of which the bill of rights is an element. We have mentioned the charter of rights but it is a question of enforceability of rights. It is not something that, aspirationally, is a good thing to do but it is something that delivers practical results. As Mr. Allamby said, while the European Court of Human Rights, ECHR, generally looks at civil and political rights, the reason we focused on the charter is because of the broader look at labour rights and social protection and Article 24 looks at children's rights. It offers a broader protection, which is why we have referenced the charter.

Does Ms Logan consider that after Brexit, a person resident in Northern Ireland with Irish citizenship could challenge this State on the basis that this State, of which he or she is a citizen, has failed to protect his or her rights in the European context?

Ms Emily Logan

The Deputy will have heard the concern from the Senator from the Short Strand. He spoke about the Irish citizen forced into a situation of accepting an identity that he or she would not choose.

It is like everything with Brexit; it is very complicated and unpredictable. People do not know the consequences of it. If Brexit happens, as sure as night follows day, there will be quick attempts to remove the United Kingdom from the Council of Europe and to shake off the European Convention on Human Rights. Most of the criticism of the institutions made by certain sections of the British media was about the European Court of Human Rights, which is being confused with the Court of Justice.

Gabhaim buíochas leis na haíonna go léir. I thank all the speakers for their attendance, presentations and answers to the questions. Inevitably, there will be a bit of a crossover but I will try my best not to repeat too much. Some supporters of Brexit and Brexiteers have tried to argue that the Good Friday Agreement is in no way in conflict with the attempts to leave the European Union. The issues that Brexit throws up for the Good Friday Agreement and for citizens' rights in the North has been well identified here. Obviously, a large part of it was that the Good Friday Agreement presupposed Britain and Ireland being members of the European Union with all the rights related to that.

On the question of citizenship, it is important to say it is not just an abstract thing and it can have real and meaningful consequences for people. I will give examples to illustrate the implications for people. I came across an Irish citizen living in the North whose partner is an American national. The Irish citizen was seeking a visa for this American national. The British Government insisted that this Irish national obtain a British passport in order for his partner to be able to obtain a visa. It was not possible to do that through any Irish legal route. That happened relatively recently and I am not sure what the current position is. There was an obligation on this Irish national to go to the British Government in order that his partner could get a visa to travel to the North. That is one example I came across.

The other example relates to a non-EU citizen who is resident in the North and whose children are Irish citizens. If resident in the Twenty-six Counties, this person would be entitled to naturalisation on the basis of their children. However, being resident in the North, this person had to go through the British system in order to achieve naturalisation, even though their children were Irish citizens living in the North. I am putting these examples on the record to illustrate concrete examples of how the uncertainty around citizenship can have an impact on people's lives where it relates to naturalisation and visas. There are probably countless other examples. Obviously, that is being discussed in the de Souza case.

Is it fair to say that the citizenships are not properly understood both here and in Britain? Would be fairer to say they are not properly defined? At what stage does somebody who identifies as Irish, and wishes to be an Irish citizen, become an Irish citizen?

At what stage is that legally recognised to be the case? Mr. Gormally indicated that generally it is when one seeks a passport that one vindicates the rights associated with Irish citizenship. Are there any other means of doing so? If one takes a court case in the South, is that seen as a vindication of Irish citizenship? Are there any other routes? Is the stage at which a resident of the North is recognised as an Irish citizen entirely unclear? I ask all of our guests to respond to the questions I have asked.

Mr. Brian Gormally

To be honest, the detail of the Deputy's final question would probably have to be put to an expert in Irish nationality law. I do not know whether there is such an expert on the panel. I am certainly not such an expert. The overall point is that nobody questions one's right to carry an Irish passport. Even though I am English by birth - as the members of the committee can probably tell from my accent - all of my children carry Irish passports. That is their choice, not mine. This right is perfectly well recognised and there is no difficulty about it whatsoever. The point is that this category of Irish citizenship does not provide rights in Northern Ireland, except insofar as the UK state says that people in this category are also British. The fundamental difficulty we are pointing to here is the recognition given to the quality of the choice to identify as and take the option of becoming an Irish citizen.

Mr. Colin Caughey

All of this underscores the need for a bill of rights for Northern Ireland. The Northern Ireland Human Rights Commission was mandated to advise on a bill of rights to augment the European Convention on Human Rights and to reflect the particular circumstances of Northern Ireland. I think this form of citizenship is a prime example of the particular circumstances within Northern Ireland, which have become more intensified as a result of the UK's decision to leave the EU. I think many of these issues could be resolved by looking at how citizenship rights could be reflected in a bill of rights for Northern Ireland and how the protections within such a bill of rights could be reflected in UK and Irish nationality law.

Professor Colin Harvey

I would like to return to an earlier point. All the examples that have been raised are illustrative of the fact that the obligations we are talking about raise questions about reform in a British context and in an Irish context. In both states, there is a need to look at citizenship and nationality law, policy and practice to ensure the letter and the spirit of the Good Friday Agreement are fully respected and reflected. I know that a conversation around citizenship laws is happening here. A conversation is needed in Ireland and in the British context to ensure that domestic citizenship and nationality law, policy and practice are reflective of the letter and the spirit of the Good Friday Agreement. I do not think they are respected and reflected at present. A conversation needs to take place.

On a more concrete level, I would like to take this opportunity to call for the urgent review by a forum or panel - it does matter what it is called - that is needed. If nobody is already doing this, such a forum or panel should be tasked with thinking through in concrete terms the changes that need to be made in the British and Irish contexts to address some of the problems we are now seeing in both states. I would like to call for the establishment of a review, panel or body - if this is not already happening - with a tight timeframe for coming up with concrete recommendations and proposals on what needs to change in both contexts to fully reflect and address the things we are now learning. Brexit has uncovered these issues in stark detail. Many of us were familiar before Brexit with the problems that needed to be addressed.

Mr. Les Allamby

The European Union (Withdrawal) Act essentially provides that when the UK has left the EU, the supremacy of EU law will no longer apply. Some of the cases that have been outlined are cases in which both UK domestic law and EU law are applied. EU law does not always resolve the issues in those circumstances. When we have left the EU, it will be up to the UK to decide which parts of EU law it will retain. While I do not anticipate that it will get rid of EU law substantially overnight, the UK Parliament will have an opportunity to do so. I will set out what this means in practical terms for someone who has a partner or family member from within the EU. Based on what the UK Government is stating, EU citizens within the UK will have quite significant protections. Five or ten years from now, such people will not have the benefit of EU law. The issue of freedom of movement will go. The common travel area will deal with some issues for individuals that relate to freedom of movement and the common travel area. One's ability to bring one's partner back to Northern Ireland from Portugal, Spain or wherever will become a real issue. Under this agreement, freedom of movement will no longer apply to those coming into the UK in the long term in anything like the way it currently applies. That is one of the clear differences between where we might be in a few years' time - assuming the draft withdrawal agreement goes through - and where we are now. The kinds of issues we are talking about will probably expand to encompass bringing in family members from elsewhere within the EU. I am not talking about those who are already in the UK, but those in the future - the next generation, for example - who may decide they want to come to the UK.

That brings me onto another question about citizenship. In circumstances in which Brexit is agreed on the basis of the withdrawal agreement, is there any respect in which an Irish citizen living in the North will be considered to be an EU citizen and will be entitled to rights on that basis? Will that simply not be the case? Perhaps Irish citizenship will only apply when a matter is being dealt with in an Irish court or something like that.

To whom is the Deputy's question directed?

It is directed to the panel generally.

Mr. Colin Caughey

The recitals to the Ireland-Northern Ireland protocol provide that Irish citizens in Northern Ireland will retain their EU citizenship rights. It is a question of what those rights are. We have been working with the task force to identify and drill down into the specific rights that Irish citizens will retain. We discussed earlier the question of whether such people will have representation in the European Parliament. It is now a matter of drilling down in more detail into the question of what rights EU citizens in Northern Ireland will have.

Mr. Les Allamby

We have called for clarity on this area. There was a sense in the December 2017 agreement that this would be a significant set of additional rights. During our discussions, I have had a sense that this ambition is no longer anything like as expansive as originally intended. That is part of the reason we have been calling for clarity on what this means in practice. Access to EU institutions like the European civil service and to EU documents is important but, with the greatest respect, it will probably not be the primary issue for the average citizens. I suspect their primary focus will be on other practical rights like accessing services when they travel to other parts of the EU. The question of the EU rights that people who come back to Northern Ireland will retain within the UK is much less clear, as is the question of what the EU is pushing the UK to do. We have no clarity on those aspects of the matter. It is not for the want of trying. I know colleagues in non-governmental organisations have been pushing this issue without much success.

Mr. Brian Gormally

Paragraph 52 of the EU-UK joint report on the first phase of the negotiations, which was agreed in December 2017, made it clear that the arrangements necessary to give Irish citizens, including those who reside in Northern Ireland, as many rights of EU citizenship as possible - it did not define which rights were envisaged - would be discussed in the next phase.

The withdrawal agreement, or the draft one that is extant at the minute, does not mention those required arrangements. That was a failure in negotiation by the commission and, perhaps, the Irish Government. At this time, beyond the basics that a person can exercise freedom of movement within the EU, he or she can also have representation by consul from other EU nations if that person is in a third country somewhere, and he or she can petition institutions of the European Union. Those are the basic rights that are laid down in the treaty for the operation of the European Union - the Maastricht Treaty. There are many other rights that accrue from living in an EU member state. It is those rights, in principle, that will be lost by Brexit and we thought there was a commitment to find creative ways to honour those rights.

Professor Colin Harvey

This has become very important in the current context in the North. As many members will be aware, a major conference will take place at the Waterfront Hall in Belfast next weekend. The event is called Ireland's Future and it will address some of these issues. People read paragraph 52 extensively and thought that a more expansive vision of EU citizens' rights was coming along, but since then they have seen that debate sidelined, diluted or lacking in clarity. As Mr. Allamby and others have said, that situation needs to be clarified urgently in the context of the politics of Northern Ireland. People had an expectation from what was contained in the joint report and there has been a lack of follow through or clarity. If that is an issue of sequencing or staging, and maybe that will come in the next stage of discussions on the future relationship or the common travel area, then people need to know that. People read paragraph 52 of the joint report and interpreted it to mean more than their having the same EU rights as an Irish citizen in New York or wherever. People thought the paragraph meant more would be available, and there is a large measure of disappointment that this has not been followed through. Maybe work is being done and arrangements are being discussed in terms of that matter. If so, we need to know. Perhaps clarity will come in the next phase but the issue has taken on a note of urgency.

I have a final question for the panel and they can answer a simple yes or no. Do the panel members agree that there is a deficit in language rights in the North?

Would any of the witnesses like to take the first shot at answering the question, please?

Professor Colin Harvey

The short answer is "Yes", and I will contextualise my answer in terms of my opening statement. I apologise for my single transferable speech here today. I want to put the language rights issue in the context of the starting point. Language rights are part of a long list of issues that are blocked at the moment in the North. What is remarkable, in terms of the power-sharing institutions, is that in some senses a mechanism that was set up to protect rights, like the petition of concern, now looks as if it is standing in the way of progress on a range of issues. That sounds awfully despairing so I will make an interesting and evidential point. Across a range of human rights and equality issues in Northern Ireland, the situation is not unlike the position in Dublin, London, Manchester, Glasgow or Cardiff. The evidence clearly shows that there is an emerging progressive majority for change in Northern Ireland. To end on a slightly optimistic note, the key question is how one can harness such change to move forward on language rights and a range of other issues that have been mentioned.

Mr. Les Allamby

Let me give an unusually succinct Northern Irish answer to the question. Yes, the commission's mandate is framed on international standards of human rights. The Advisory Committee on the Framework Convention for National Minorities and the European Convention on Human Rights have both made it clear that there should be statutory protection for language rights. On that basis, our commission has recommended that those recommendations be enacted.

Mr. Brian Gormally

My first answer is "Yes", but I will expand on that. As part of the St. Andrews Agreement, the UK Government pledged to legislate for an Irish language Act but, subsequently, it passed that commitment to Stormont in Northern Ireland where it has been blocked. We completely accept the need in the agreement for mechanisms that ensure that one community does not oppress another in the Legislature. That is why there are particular arrangements for coalition and consent in voting, the petition of concern and so on.

Our concern, which we mentioned in our paper, is that mechanisms that exist to prevent the oppression of minorities are being used to prevent measures that would increase the rights of minorities. We need a human rights and equality-based return to a devolved Administration in the North. It must be on the basis of the implementation of some of the weaknesses that we have all spoken about all morning. I mean the full implementation of the promises of the agreement and the proper operation of the mechanisms that were set up. For example, when a petition of concern is triggered, it is supposed to go to a special committee on human rights and equality to decide if it is in line with that. Unfortunately, that has not happened. We have listed a range of issues in the briefing paper. Perhaps not every single one needs to be implemented. However, the underpinning of devolved government must be put on a secure basis of human rights and equality. The language issue is just one of those matters. It is particularly important to people in symbolic terms and in other terms. It is the reassertion of the fairness of institutions across this island, which has been the main message that I have tried to convey this morning. We need it to prevent instability and prevent political turmoil turning into something much darker and much worse.

I am not going to ask the witnesses questions because I have too many to ask. In a normal meeting we ask questions to get answers but, in fairness, nobody has answers at this juncture. What the witnesses have done is incredibly important. I agree with Deputy O'Callaghan that, notwithstanding the efforts and points that have been made by the witnesses about putting human rights issues centre stage or advancing them in the withdrawal agreement, as far as I am concerned and certainly as far as anyone in the public domain or those of us who may be at a remove are concerned, human rights have not been part of the narrative at all. In that sense, the Chair's initiative to have this briefing has been critically important.

I say that because the information or the complexities that have been expressed by the witnesses, even by us allowing them to have a public conversation here, have been shocking and sobering for me in a number of different areas. The witnesses have highlighted the scary legal deficit regarding citizenship and the exercising of rights, which needs to be addressed. What can we, as legislators, do to help? What one thing can we do? In terms of a human rights narrative, has the situation improved?

As the process has gone on, has the situation got better or worse in respect of finding a solution to some of these things?

I will open that to the panel.

Ms Emily Logan

Deputy Daly is right that the narrative has been dominated largely by trade. We are here today to assure the members as public representatives that we have been doing our job behind the scenes. We are doing our bit, so to speak. It would certainly be very helpful in the public narrative and debate to address these matters. One can begin to hear in the language of their speeches that citizens' rights are being spoken about by the EU and the Government. It is helpful to pick up on the British Nationality Act, which existed prior to the 1998 Agreement, and its implications. The public does not understand that if this is not dealt with, people might find themselves forced to assume an identity they would not choose for themselves. That message has not got through to the public. I thank the Chairman for this initiative and note that if there is anything the committee can do in terms of narrative, it would be useful. I thank the committee for giving us an opportunity to appear. Certainly, it has been a master class to listen to my colleagues from Northern Ireland who have such proximity to the issues. To show solidarity for colleagues working in the Northern Ireland jurisdiction is important.

That was very useful. I open it up further.

Mr. Les Allamby

I note two things, both of which are already being addressed by the Irish Government. As co-guarantor of the Good Friday Agreement, the Government clearly has a pivotal role. In fairness, the EU 27 have been very strong in recognising the Agreement. The first matter to note is that the Government made representations and continues to do so on a bill of rights. A bill of rights is very important. It is a slightly populist point, but I always compare a bill of rights to a job description in employment. A bill of rights comes into its own and demonstrates its value in times of economic and political instability. It is a little bit like one's job description. If a job is going well and one has a good relationship with one's employer, one is not rushing off to see what one's job description says all the time. When things go wrong or are more difficult, one tends to go back and see what the arrangements are. That is what a bill of rights can do. Whatever one's views of Brexit, we are entering a period of political and economic instability. A bill of rights and continuing to push for the other parts of the Agreement is important. The second matter is the common travel area. It is clear that the Irish and UK Governments are actively involved in discussions around the common travel area and where it will sit once the UK leaves the EU. It is not that either Government is sitting on its hands, but it would do no harm to continue to push the Irish Government towards some bilateral or international treaty arrangement which ensures that when we leave the EU and do not have the underpinnings of EU law, the common travel area is placed on a formal legal footing with a greater clarity not just about what is covered but what enforceable rights exist. Those are two things the committee could continue to push for. The Irish Government will not be surprised at either and will not say it has not been working on them. However, it does no harm to continue to use the committee's good offices to see where things are moving in those directions.

Mr. Brian Gormally

If one looks at the paper, it includes a few recommendations on the Irish Government taking the initiative in legislation and so on. An example is the common travel area which has been mentioned several times. A few days ago, the Tánaiste said there would be a treaty on the social security aspects of the common travel area while the rest would be covered by a memorandum of understanding. The problem with memoranda of understanding is that they are not, generally speaking, legally enforceable. It is not clear to us why only certain aspects of the common travel area should be made subject to treaty. After all, to mention a word which has not been mentioned thus far, the idea of the backstop is that it is legally enforceable. Something which is not legally enforceable is not worth very much in fraught international negotiations like these. That is one point. While I mention the backstop, I note the importance of the Irish Government standing firm. The question of the Border, which we have not dealt with to a great extent today, is very important for those who live along it. It is important for the 300,000 people who cross it every day. It is also important in its psychological impact. The freedom to move backwards and forwards across the Border today is a measure of how far we have come since the peace Agreement of 20 years ago. Any change in that regard will give rise to concerns and fears among people that we are going backwards and that what they thought was settled is not. There will be concern that we are going backwards and that confidence in the Agreement is being undermined. While there is a great deal of pressure from many directions, the Border is not just a practical issue from a Northern point of view. It is a border of the mind as well as of geography.

Professor Colin Harvey

It is important for the committee to ask the Irish Government the hard questions and ensure where there are areas in which it can take action to address some of the points we have raised, that such action is taken. If things can be done and the legal advice is that they can, why are they not done? While I acknowledge its enormous efforts in the negotiations, the Irish Government must follow through on some of this stuff too. The committee's role in that regard is important. One of the remarkable aspects of the Brexit process has been the mobilisation around rights and equality issues. It has given life and renewal to the work of the joint committee of the human rights commissions on the island of Ireland. That has been a great outcome. The joint committee has been doing great work which should be encouraged. Where this committee can support the work of the joint committee, I ask the members to think about how that work can be developed and deepened. The joint committee should be invited to meetings like this more regularly to speak with one or two voices on some of the human rights issues. Why not integrate the joint committee on human rights into the work of the committee across a range of issues, including some of the justice issues Ms Logan and Mr. Allamby have already mentioned? When policing and justice are being discussed, the joint committee and others should be invited to talk to the members here about that and about the human rights implications to mainstream its work. It is not all about the North. One could say there was a bit of a human rights and equality crisis in this part of the island also. That is obviously stark in terms of social and economic rights.

Professor Harvey is going to get them started now.

Professor Colin Harvey

There are credible proposals for change in the North and here also. What we are talking about today is the island of Ireland and improving the human rights of everyone here. There are credible proposals for example around constitutional reform to give socioeconomic rights a proper place in the Irish Constitution. For too long, socioeconomic rights have been treated as second-class rights here and that needs to change now. Work can be done there. The committee must acknowledge the situation in Northern Ireland - the North of this island - where there are so many lazy narratives about what is going on. The human rights and equality crisis underpinning some of the problems we face must be acknowledged. There are too many lazy and easy narratives about what is going on. If the Westminster Parliament and Government can try to legislate to take Northern Ireland out of the European Union against its consent and without political consensus, why can it not legislate for some of the human rights and equality issues we have referred to today across a range of areas, including equal marriage, reproductive rights, language rights and the bill of rights?

The prize for the Westminster Parliament in taking that stand is potentially sustainable power-sharing government for a generation in the North, even with the ongoing paralysis caused by Brexit. Firm action is required. We need to acknowledge the crisis.

I spoke about the joint committee and integrating it in the work being done. This is a terrible thing to do, but I am an Irish citizen and members can see my passport.

To get our attention.

Professor Colin Harvey

I am going to join a long queue of people who have done it. I have the passport in my pocket. I was born in Derry, but I have sold out and now live in Belfast. That is the worst thing a person from Derry can do, but I am an Irish citizen. The question for me in this conversation is the issue of my Irish identity which is about the human rights of everybody on the island. Throughout my life and career I have worked very hard for the human rights of everyone on the island, but specifically as an Irish citizen I want to know what the document actually means in practice, in terms of both Irish and European citizenship. I am Irish and European and want to know what rights I will have in the years ahead, having sold out and as someone now living and working in Belfast. Parliamentary committee, such as the Joint Committee on Justice and Equality need to hear more from people like us. More Northern voices need to be integrated into the work of this parliament and its committee system as one small step in realising some of the things about which we have talked.

I thank the Chairman and members.

On that note, Ms Emily Logan has almost had an honorary chair at our hearings during the years. Mr. Allamby may start to dust off one of the chairs. Mr. Caughey wishes to make a further point.

Mr. Colin Caughey

We mentioned the need for imaginative solutions to the problems posed by Brexit. One area in which there has been a lack of discussion on solutions is justice and security co-operation. There are complex legal and technical obstacles in the development of a framework which would allow the United Kingdom to continue to participate with the co-operative tools the European Union has developed and on which the police forces north and south of the Border rely each day. The joint committee has commissioned some research in the area of criminal justice co-operation, looking at how we can develop human rights compliance solutions after Brexit, on which the police forces, North and South, will be able to rely. We will be happy to share the research with the committee once it is concluded.

On a point of information, on behalf of the committee, one of the other Senators and I actually sit on the trans-EU committee on scrutiny of Europol. It is part of our work and an issue we also take very seriously. There is a major question about the relationship post-Brexit between the policing entities in the North of Ireland and Britain. I have asked it repeatedly at a series of European meetings, but we are not getting an answer. They just do not know either.

Does Deputy Clare Daly have anything to add?

I thank the Chairman. Too often Oireachtas committees are used by their members to try to promote themselves to gain a cheap headline. I thank the Chairman for coming up with this initiative and the delegates for attending. It is what a committee meeting should be - a facility to air publicly and tease out some of the very complex issues involved. The delegates have done it very well and the floor has been dominated by them. That is how it should be at committees. The proceedings have been incredibly thought provoking, for which I thank the delegates.

I did not come to ask questions but to see whether I could learn anything. The proceedings have been very interesting. Ms Logan emphasised that the talks had been based on trade and human rights. It reminds me of the time we got over the fence at Shannon Airport to highlight the human rights abuses emanating from the decision to allow it to be used as a US military airbase. The thinking was we could not stop the Americans from using the airport because it could affect foreign direct investment. At one stage we were in Ennis where a fellow spoke to me in a public house. He was selling sandwiches at the airport and did not want us to get over the fence to highlight the US military's use of the airport as it might impact on his sandwich sales.

Professor Harvey spoke about the deficits in Northern Ireland, the ongoing crisis in the area of human rights and equality and the lack of legislative and constitutional support for the Good Friday Agreement. Why has there been a lack of appetite on the part of the British and Irish Governments to make this happen? Does he believe the Northern Ireland Assembly must bear a huge amount of the responsibility for this?

Was that a question for Professor Harvey?

Professor Colin Harvey

The process is stuck in a long list of issues and stuck for reasons that are familiar. It is blocked in seeking party political consensus and stuck in relation to the Assembly. The British Government is abdicating its responsibility to take reform measures forward in these areas. What I am saying is that in the context of the conversation on human rights, Britain is perfectly willing to take forward measures on Brexit without political consensus, but it is not unlocking some of the human rights reforms at Westminster, which would be perfectly acceptable, for example, when it comes to expectations about Irish language legislation. If one looks at the Good Friday Agreement and the section on a Bill of Rights, it is explicit that it was supposed to be done through legislation passed at Westminster. Obviously, one way forward would be for Westminster to unblock it. The reasons are well known and include the lack of party political consensus. My view is that it should not stand in the way of achieving the human rights and equality reforms about which we are talking.

On the Assembly and power-sharing institutions, to refer again to the previous point, the North is falling behind, but it seems that politics is behind the people because from the evidence we have seen across a range of these issues there is majority support in Northern Ireland for change in the area of human rights and equality. If some of the measures need to be taken through the Assembly, there is a very familiar ongoing debate about the petition of concern and the way it is being used to block change and reform. We will need to give the issue serious attention in the time ahead to unlock the potential for change in Northern Ireland in a range of areas, but we do not have the Assembly. I am increasingly of the view that there is no excuse for the Government at Westminster, obviously in discussions with the Irish Government, not to unlock these issues through legislative reform at Westminster. In an ideal world, in a number of these situations, it would be wonderful if it was possible to do it in the Northern Ireland Assembly, but we do not have it. There is no Executive and Northern Ireland is falling ever further behind. To put it crudely, the Westminster Parliament needs to step up to the plate.

Does Deputy Wallace have anything to add?

I thank the Chairman for making us think more about the problems that are likely to arise and the issues involved.

So much has been covered and I have been blown away by the delegates' clear and precise presentations. I have spoken many times in the Seanad about Brexit and human rights issues, but having heard all of the presentations, to be honest, I now realise I did not have a clue about the detail. I do not have questions. I will go away and study the presentations made as best I can. I am due to speak at the Brexit conference to be held on Saturday. I thank the delegates for the great work they are doing. I also thank the Chairman for his great initiative in bringing the delegates here.

I raise a small point regarding the urgent review of this issue mentioned by Mr. Caughey. Is he suggesting a committee should be set up in the Oireachtas, with the UK or with somebody in the North? There is no doubt that this is a human rights crisis; it is shocking. Would Mr. Caughey, or any of the other witnesses, expand on their thinking around "urgent review"?

Professor Colin Harvey

It is clear in the emerging discussion that there are a number of specific issues around citizenship, nationality and immigration law as well that require change, in the British and Irish context, in regard to realising both the Good Friday Agreement obligations and also the discussion around the common travel area, CTA. We need clarification as to the conversations that are happening now. If there are discussions on some of those issues, we need more clarification around that in terms of what is happening, what has been agreed or if anything has been agreed. Last week in a Cabinet discussion there was some reference to a treaty and a memorandum of understanding that were ready to go regarding the CTA provisions. If work is being done, we might need to do more about that. There is probably an appropriate time for that to be shared but we need to hear that.

Short of that, somebody needs to be thinking in concrete terms about what needs to change in domestic law in both a UK and Irish context to remedy some of the issues we are talking about now. If that work has not been done, it needs to be done. That is the reference my colleagues made to paragraph 52 on special arrangements. Many of us felt there was a sense that hard work on all of this was ongoing, that all of it was being thought through and much of it was being resolved. If that is not happening, then that was the context for the call for a review in both the British and Irish context to urgently address how this will be remedied.

I thank Professor Harvey.

Dr. Ruth Gallagher

I might add that the joint committee between the two commissions North and South has existed since 2001 and has carried out that work in a relatively unassuming way until the referendum, which gave us a renewed focus to our work. That relationship has been very rewarding for both commissions North and South. The body already exists. We have said that if we did not have it, we would have to invent it. It is about recognising that it is there, that it is set out in statute and can be called on.

I thank Dr. Gallagher. Is the Senator happy with that?

Fine, thank you.

Senator Black's colleague, Senator Ó Donnghaile, wanted to make another brief contribution.

It is to endorse Professor Harvey's call for that panel in whatever way that needs to appear. I would make the point about today's meeting that it is not often, although this is one of the better committees, one gets that kind of uniformity and agreement to not only appreciate what the witnesses have said today but to build upon it.

I, too, commend the Chairman on this initiative because it is vitally important that as broad a range of voices as possible is heard. To build on that initiative, if it is possible, there may be merit in the Chairman exploring with his colleague, the Chairman of the Committee on the Implementation of the Good Friday Agreement the possibility of a joint sitting of both committees to build upon some of today's discussion and invite more people to attend. This is a cross-cutting issue and that might be a space in which we can build on Professor Harvey's suggestion. It is to reiterate the message on Saturday's conference. If people have not done so they should register online free of charge, make their way up the road easily and without hindrance and take part in and listen to what is being said.

I have to say, because it is deserved, that the Senator made an exceptional contribution this morning out of his own personal experience-----

I have not got my passport.

We are not sure what passport the Senator carries.

Since the Chairman and the Senator are so good, would they talk to the "Shinners" in the North and see if they will do something about the Northern Ireland Assembly?

Do not be at it, Mick.

I thank the colleagues but I have some brief questions. I will not open them up to everybody. The first is for Ms Logan. I refer to the list of key recommendations. In terms of the construct of it, No. 6 states:

The right to participation in public life is another aspect of the North-South equivalence of rights under the 1998 Agreement. It is important to consider how those in Northern Ireland to whom EU citizenship is to be offered [and then the word "exceptionally" appears] after Brexit will continue to be represented in EU democratic institutions.

I want to draw that out. A view I would hold strongly is that it is not only those who would exercise their right to Irish citizenship and consequently their entitlement to EU citizenship but that everybody is entitled to it, regardless of whether they exercise it. I was wondering about the use of the word "exceptionally" in that case.

Ms Emily Logan

It was EU in the context of non-EU resident. Is that the case? It is in the withdrawal agreement.

Mr. Colin Caughey

It is exceptional for EU citizenship to be offered to individuals who, post Brexit, would not be resident on EU soil, so to speak, or within an EU member state. I believe it is considered exceptional to offer that.

It is not just to offer it to those who have exercised, by choice, their entitlement to Irish citizenship and thereby EU citizenship.

Ms Emily Logan

No.

That is not what you are saying there. It struck me as a little odd. The other point about it is the right to participation in public life. That is not just exercising our right to use our franchise to exercise our right to vote. The right to participation in public life also includes the role I and my colleagues play as elected representatives. I would think it has to be taken in its full gamut. On a personal note, the loss of the three representative seats in terms of the North of the island is unfortunate. What is the number in that regard? I looked through all of this earlier. There are 73 representatives from across Britain and the North, and we have 11 here in the Republic. It is increasing by two, but I would imagine that the greater number of people here of all political opinion would say at least those two should have been granted to people North of the Border to allow them continue that participation, that voice and that linkage. I would hold that view very strongly.

It is apparent that there is an across the board acceptance in terms of 29 March. What happens if there is an extension because as we speak there is no provision in terms of a European parliamentary election on 24 May North of the Border? It is not being provided for at all. I wonder about all of that. The allocation of these additional seats is predetermining that this is done and dusted, whatever will happen. It closes down possibilities, in my opinion, and I am very worried about that.

I have a few final points. Mr. Gormally mentioned 300,000 people traversing the Border but among that number, and I have lived in the shadow of the Border all my life, there are tens of thousands who are cross-frontier workers, so described.

I know people where I live who are cross-frontier workers and those who travel from South to North are entitled to free access to medical care in this State, irrespective of their economic circumstances. That is a very precious thing. The National Health Service operates north of the Border; we have no such thing here. It is built into the provisions of the medical card that by the very fact of these people being cross-frontier workers, they are entitled to a full medical card in this State. Tens of thousands of people and their dependants could very well lose that entitlement, which most definitely would be absolutely catastrophic for some. Would any panellist like to reflect a little on the issue of cross-frontier workers? I refer not only to those going from South to North, but also to those who go from North to South, because as Mr. Gormally has suggested, this is a significant part of daily reality for many people. What will their reality look like post Brexit? Would Mr. Gormally like to comment?

Mr. Brian Gormally

Obviously, the details of the entitlements and so on can be quite complex in terms of social security and things like that. A couple of months ago, I listened to a presentation from one of the advice workers at the Centre for Cross Border Studies. She said that at the moment, they only have to ask people who make inquiries two questions, namely, where do they live and where do they work? These are cross-Border workers and the advice workers can work out what their entitlements are, who pays their pension, and everything else from those two pieces of information. After Brexit, the whole situation will become more complicated but, as yet, we do not know in what ways. The other point, which was mentioned earlier, is that the Tánaiste has stated the social security aspects of the common travel area will be put into a treaty. The extent to which that will deal with frontier workers as a specific section is not known. If I were such a worker, I would want to know what my entitlements would be with a certain degree of legal certainty. I am not sure that a memorandum of understanding would meet that level of legal certainty.

The other thing is that the common travel area refers, of course, to the entirety of the UK and Ireland. While it is an extremely important and historic set of freedoms and represents good neighbourly behaviour, there are specific issues concerning the Border on the island of Ireland and the people who cross it daily for work as well as, as I mentioned earlier, the psychological impact of the Border in terms of how far we have come with regard to peace and whether we are going backwards. It seems that there is a lot to be talked about with regard to the terms of a treaty between Ireland and the UK to deal with the common travel area. There certainly also will need to be specific provisions for cross-Border workers.

Ms Emily Logan

With regard to the point the Chair made about my comment, I just want to make sure I have been clear.

It was on the use of the word "exceptionally".

Ms Emily Logan

Yes. We believe that continued EU citizenship should be extended to all of the people of Northern Ireland. I just want to be clear that is not in question. I apologise if I miscommunicated.

We are on the one page so.

Ms Emily Logan

That is what we meant to say.

I am grateful for the clarification because that is where my head would be in that regard. We are almost at an end. I know the full membership of the committee is not present but we do not want to lose into the ether all that the witnesses have shared with us or for us to be the only people to go off with this enhanced knowledge and awareness. Perhaps members of the committee might indicate to one another their comfort factor with preparing a short report based on all we have learned here today. We would then present it to the Taoiseach and to the Tánaiste, Deputy Coveney, who is the lead in terms of his role, in order that we do not lose the important information the witnesses have shared, that it can have further legs and that we will be able to continue with it. Would people be broadly in agreement with that? Yes. I appreciate that very much indeed.

It only remains for me, on behalf of the committee, to again thank Professor Colin Harvey for his attendance here today. I also thank Mr. Brian Gormally of the Committee on the Administration of Justice for his contribution and his engagement with members. I thank the representatives of the Northern Ireland Human Rights Commission, Mr. Les Allamby and Mr. Colin Caughey, and their counterparts from south of the Border, Ms Emily Logan and Dr. Ruth Gallagher. Long may they continue to work in a joint relationship. We hope that we will have the opportunity as a committee to welcome them back at some point in the future.

The joint committee adjourned at 11.55 a.m. until 9 a.m. on Wednesday, 30 January 2019.