Engagement on Citizenship Rights: Professor Colin Harvey, Mr. Liam Herrick and Mr. Michael Farrell

I thank everybody for returning for this afternoon's session. On behalf of the committee, I warmly welcome Professor Colin Harvey from Queen's University, Mr. Liam Herrick from the Irish Council for Civil Liberties and Mr. Michael Farrell. At an early stage, members identified issues relating to citizenship as being vital considerations in the negotiations. We are grateful to the experts in the field who are present for taking the time to come and share their knowledge.

Members are reminded of a long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses, or any official by name or in such a way as to make him or her identifiable. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by the committee to cease giving evidence in relation to 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 or entity by name or in such a way as to make him, her or it identifiable.

I suggest that all the witnesses take ten minutes each to make their opening remarks, after which we will take questions from the floor. As the witnesses may be aware, certain members have to attend other committee meetings so they will be coming and going.

I do not know whose phone is causing interference; thankfully it is not mine. I take this opportunity to remind everyone present to put their mobile phones on to flight mode or turn them off altogether. Unfortunately, it is not enough to place them in silent mode.

I call Professor Harvey, who will be followed by Mr. Merrick and Mr. Farrell.

Professor Colin Harvey

I thank the Chairman and members. I have provided a written opening statement. As it is rather lengthy, I do not propose to read it out. I will try to summarise its main points.

Drawing on my area of expertise, I want to tease out the human rights implications of some of this and to frame it in a human rights context. I wish to highlight three things: context, impact and solutions. The overriding theme of what I have to say is that the human rights framework for reflecting on these questions is particularly useful for a number of reasons we can explore. I should mention that I am currently involved in a funded project with Ulster University and the Committee on the Administration of Justice, CAJ, which will look in more detail at some of the questions we will be discussing this afternoon over the next 18 months.

All those present know the context and we could spend the rest of the day discussing it. Common membership of the European Union was an underpinning assumption of the peace process. The role of the EU as a supporter of that process, the land Border on this island, the complex nature of the constitutional arrangements that are in place in Northern Ireland - and their interdependent and interlocking natures - the fact that the North voted to remain within the European Union, the already destabilising aspects of the Brexit conversation and the way in which the rights of EU citizens continue to be made negotiable in the negotiations are only part of the context we can explore today.

It continues to be my view that it is unhelpful to think about Northern Ireland exclusively through the lens of devolution within a UK constitutional law setting. My starting point is that the situation is already constitutionally complicated, as everyone in this room knows.

Simplistic statements about Brexit meaning Brexit in that context are rather unhelpful. It is clear the full implications of the Good Friday Agreement are not really fully understood. It is an agreement that is often referred to and to which lip service is often paid but its full implications, as well as those of the British-Irish Agreement, are really not fully understood. It is important to remind ourselves of the centrality of human rights in the Belfast Agreement. It is also important to remember that both international and domestic human rights law frameworks will remain, even in a post-Brexit context. There is a myriad of contexts that could be discussed today. These are only some of those contexts and there is more detail on them in the opening statement document.

In terms of impact, one of the real challenges is the extent to which there continues to be rather excessive levels of uncertainty and a lack of precision in the available information. In some senses, the discussion about impact assessment can take on a rather speculative aspect. It is absolutely clear to me, based on the evidence available, that a hard Brexit will have appalling implications for this island, whatever about the details that need to be worked out in terms of what is going to happen in practice. I used the word "potential" in my opening statement because as many members will know, the Great Repeal Bill White Paper, which gives us some but not much information, talks about freezing a lot of existing EU law and bringing that into effect domestically. As many people in this room will know, the scale and implications of that are absolutely massive. Much more detail is needed than is currently available. In terms of human rights and equality, EU law assists greatly in providing a backup to and an underpinning of existing protections. It is a matter of real concern and anxiety for many in Northern Ireland and on this island that this backup and protection, in terms of human rights and equality, will be gone in the future. It is not clear from the available information what is going to happen to those guarantees in practice and to future developments. How, for example, will Northern Ireland and the UK keep pace with some of the developments that happen in the areas of human rights and equality in the future? It is worth noting that the UK Government has made it absolutely clear that it does not intend to give the EU Charter of Fundamental Rights domestic effect as part of the Great Repeal Bill process.

I do not need to remind anybody in this room that in terms of impact, the whole Brexit conversation has been profoundly destabilising for Northern Ireland and this island as a whole. It has very unhelpfully reopened the sovereignty fracture that many of us thought the Good Friday Agreement had sought to heal and that common membership of the European Union had sought to mend. That has all been reopened in a destabilising way, as we face into the prospect of the impact of one part of this island being outside of the EU.

I know that Senators are very interested in solutions so I had better say something about those. There are several issues to bear in mind in terms of solutions. We must remind ourselves in the context of the history of the EU's engagement with the UK that the EU is very used to dealing with special circumstances around the UK. The UK has a long track record of opting in and out and of looking for special deals in a whole range of areas. In the conversations and negotiations to come, terms such as "special status" will arise but there are all sorts of special status arrangements that have been made in the past. In that sense, there is nothing unique or outlandish about having a conversation about special status now.

We need absolute clarity on the assurances that have been given around existing guarantees on human rights and equality and how, in a practical and legally compelling sense, they are going to be guaranteed into the future. A broader question arises regarding the mechanics of accountability during the process. It looks likely that there will not be a Northern Ireland Executive or Assembly during the time in which this is taking place. How is the Westminster Government going to be held to account in terms of following through on some of these guarantees in the weeks, months and years ahead?

In terms of solutions, a starting point which pertains to the North in particular is that we have an abundance of solutions in regard to human rights and equality. There are many solutions but one of the problems, historically, has been with the implementation of those solutions. One can look at the detail of the Good Friday Agreement, for example, as a template. Many people talk about that Agreement but sometimes they forget to read it. It is a very sophisticated, multi-stranded document. What we need is the same sort of thinking that guided that document to inform the negotiations that will happen in the time ahead. In terms of those negotiations, we are used to thinking about the British and Irish Governments as co-guarantors of the Good Friday Agreement. To what extent do we also need to be thinking about the European Union, as well as the Irish and British Governments, as guarantors of the Good Friday Agreement into the future? Again, we have a habit of talking about some outlandish or suggested special status that is somehow odd but from a constitutional legal position with regard to Northern Ireland, what we are essentially asking the guarantors to do is recognise what is supposed to be an existing special status already. Northern Ireland, as everyone in this room knows, is already a contested, constitutional legal space. The legal arrangements that are in place already are supposed to reflect its special status within a British-Irish context. In a sense, in the negotiations to come, we are looking to get that recognition transposed onto a broader level. That means more attention on the EU, its mechanisms and the role of member states and institutions in that process. The EU institutions themselves are bound by the Charter of Fundamental Rights as they take forward this work. The EU and the British and Irish Governments have a common heritage as protectors of the peace process and the process itself becomes a common inheritance. As part of that, we need to be much clearer about what we mean when we talk about the principles that underpin the Good Friday Agreement. Constructive ambiguity may have had a role in the past but it is no longer helpful. Increasingly, as everyone in Europe talks about the importance of the Good Friday Agreement and its fundamentals and principles, we need to spell out in much clearer terms precisely what we mean by those principles.

In terms of human rights, the solutions are already there. We are not starting with a blank page and are very fortunate in that respect. I must declare an interest here as a former commissioner on the Northern Ireland Human Rights Commission, NIHRC, who was involved in these processes. The NIHRC and many others in the North worked for many years on very detailed proposals on a bill of rights for Northern Ireland. We need to revisit and look again at the detail of those documents. If we look there, we might begin to find some of the answers to some of the questions we are raising in a human rights context. That advice was submitted in December 2008 and remains unimplemented; it continues to be a work in progress. Rather than just recite that as a mantra, we need to revisit the detail of what was said in those documents because some of that material could be useful in the time ahead. Much work has already been done, although levels of awareness of it are low, on a charter of rights for the island of Ireland.

How many people are aware of the work done on this charter and the advice submitted by both commissions on the island in June 2011? It was a really innovative attempt, and it requires more work on how we think about this island as a shared space of basic human rights protection. The advice contains many detailed solutions that could be drawn down into this conversation.

We should look again at the joint committee on human rights comprising representatives of the two human rights commissions on the island of Ireland and which is mentioned in the Good Friday Agreement. It probably does not have a very high profile. Do we need to revisit this joint committee? Do we need to be more ambitious about its role? I have given a number of examples as to how we might support this work. It is under-resourced. Does it need an independent chair? Does it need to develop a more autonomous existence? Do we need to think about developing equivalence audits to put into meaningful terms the human rights and equality gaps on the island? Could the joint committee do this work? If not, who else could do this work? I raise this question because if the UK Government speaks about freezing human rights or freezing past guarantees, where do we get our baseline for assessing whether it does so if we do not start thinking about an audit or some type of baseline as to where we are now, where the guarantees are and how we can assess what will happen in the future?

In a sense I would say we need to reimagine the role of the joint committee on human rights to give much more consideration in a Northern Ireland context to the incorporation in domestic law of international human rights standards. The point I am making is that in this profound constitutional moment for the island, human rights law and the human rights frameworks to which the UK and Ireland are bound and signed up to as matters of international law are only one part of providing a useful inclusive framework for guiding the conversations to come. They are of considerable value.

To underline this point, it is like the Bill of Rights advice from 2008, the charter of rights advice from 2011, the work of the joint committee and the references we see in the Good Friday Agreement. I urge everybody in the room to look back at the Agreement and look at what followed it. From the declaration of support at the start, as we turn the pages of the document we see consistent references to human rights and equality. We should look at this, recall it and recall the creativity and imagination that went into this multi-stranded document, because this is the type of thinking we will need in the negotiations to come on Brexit. I thank the committee.

Mr. Liam Herrick

I thank the Chairman and members of the committee for inviting the Irish Council for Civil Liberties to present today and the other members of the Seanad in attendance. Many Senators are familiar with our organisation as an independent civil liberties and human rights organisation which has been campaigning in Ireland since 1976. We can all take for granted as a starting point that there is common purpose in the Houses and civil society in Ireland that human rights issues as pertaining to Northern Ireland and the island as a whole should be foremost treated as a priority by the Irish Government in the ongoing process. What I want to do very briefly today is to place some of these human rights issues in their historical context and also in the context of developments in the protection of human rights in Europe at this time, and then link this to how they might inform and be taken on board by the Irish Government in how it engages with the process at bilateral level and at European level.

The history of human rights activism in Ireland, of which our organisation is a representative, is inextricably linked initially with the conflict in Northern Ireland, the civil rights movement in Northern Ireland and, subsequently, the peace process in Northern Ireland. Human rights activism has always been on an all-island basis, as can been seen by the work of my organisation and of the Committee on the Administration of Justice in its engagement with the Forum for Peace and Reconciliation and in the period leading up to the Good Friday Agreement. All this contributed to human rights being a central pillar of the Agreement, as Professor Harvey has outlined.

It is in this context that those of us concerned with human rights in this jurisdiction and in Northern Ireland acknowledge that the threat posed by Brexit is a fundamental and grave one to the protection of human rights at all levels in all parts of the island. To pick up on some of the issues Professor Harvey addressed on specific and substantive threats to areas of rights practice at present, the EU Charter of Fundamental Rights is perhaps the most significant and obvious area where there are existing protections under European law which will come into jeopardy with the anticipated withdrawal of the United Kingdom from the Union. However, we also wish to raise awareness of other growing areas of EU competence, very often at a seminal and seed level, which potentially could be lost in this process.

The Irish Council for Civil Liberties has participated in recent years in a number of cross-European projects connected to the EU Stockholm programme on justice, freedom and security. The area of procedural rights and victims' rights is just one example of an area where the Union has advanced a very progressive and substantive agenda of enriching national jurisdiction protections in this area. Another example is the area of procedures on the asylum process. These are in addition to more established areas of equality and other European Union competences. Not only could Brexit potentially remove Northern Ireland citizens from these existing and developing areas of protection, it will also exclude civil society and academia in Britain and Northern Ireland from having a participative role in, for example, developing new standards in which we are currently involved with European partners.

This also presents a particular challenge for Ireland's civil society, academia and policymakers because, certainly in the area of criminal justice reform, to take one particular example, we have very often worked in parallel with our British colleagues given our unique legal heritage in Ireland. There are many very interesting examples of how EU criminal justice reform, particularly in the past ten years, has shown the potential symbiotic rights discourse that can develop from an engagement between a civil law tradition and a common law tradition. The context for this must surely change with the removal of the United Kingdom from this conversation. We can only anticipate that the balance between these two traditions is likely to shift further towards the Napoleonic model rather than the common law tradition.

This raises the question of our understanding of law and the relationship between common law and European law. Certainly, public attitudes to and misunderstanding of the nature and sources of European law in its widest sense are central to the political and public context of the Brexit vote last year in the United Kingdom and wider British political discourse about its future relationship with Europe. We should be concerned about the nature of this discourse as well as the political event of June last year. We have seen a shift in Britain not only of an anti-European nature but also of a very much anti-human rights political agenda, extending to attacks on the Judiciary and the rule of law in media discourse and, more recently, towards the parliamentary opposition itself, describing its members as saboteurs. This can be seen as a continuation of a 20-year process of denigration of all things European and all things human rights in the British press. The focus is not only on the European Union as the source of all ill but also increasingly on the European Convention on Human Rights. The relationship and connection between both discourses is manifest in the confusion one sees regularly in British political discourse between the institutions in Brussels, Luxembourg, Strasbourg, the Council of Europe and the European Union.

We should be in no doubt that as a political agenda the Human Rights Act is very much in the sights of the same political agenda that has brought with it Brexit.

This has been confirmed on a number of occasions by both the Prime Minister and the Lord Chancellor. While it remains to be seen where this issue appears on the agenda of the current general election campaign, it is certainly part of a medium-term agenda of the Conservative Party.

Not only does this go to the very heart of the Good Friday Agreement and its institutions, but it also presents a seismic development for Europe and for the protection of human rights across the Continent as a whole. We need to see Brexit not only in a British and Irish context but also in terms of where it fits into the wider movement against human rights across the Continent. We are seeing a changing political atmosphere for rights and an open hostility to human rights institutions and human rights laws by many governments in Europe that would have been difficult to foresee as recently as a decade ago.

In his annual report for 2016, launched yesterday, the Council of Europe Commissioner for Human Rights, Nils Muižnieks, stated, "2016 will likely be remembered as a critical turning point for human rights in Europe" and "We will either see it as a low point from which European countries, individually and collectively, bounced back to reaffirm their commitment to human rights, or it will mark the beginning of the end of the European human rights system and European integration."

They are strong words, but he accompanies them with concrete references to developments in Turkey, Russia, and France. All of these countries have recently derogated from provisions of the European Convention on Human Rights. There are, of course, also worrying developments in countries such as Ukraine and Poland, which have witnessed attacks on the rule of law itself.

The Irish Council for Civil Liberties is part of the International Network of Civil Liberties Organisations. We know, for example, that our colleagues in Hungary are facing very acute attacks on their freedom of operation. We are also seeing attacks on the rule of law in that country and, indeed, on independent universities. At this point in time Ireland, as country that has a record of championing the democratic role of independent civil society, has a particular role in not only engaging with the threats specifically arising from the Brexit legal phenomenon but also with the wider political phenomenon of which it is a part.

Ireland has been a champion at UN level on the position of human rights defenders in civil society for several decades and has prioritised the positions of human rights defenders in its work overseas through Irish Aid. We feel this is an important time for Ireland to make this priority central to its engagement with the Brexit process. As a progressive country which has retained its commitment to human rights at a time of great upheaval across Europe, Ireland has a duty to defend the core European values we cherish so much. The manner in which we approach the forthcoming Brexit negotiations will be defining in that regard. There are a number of core principles that might be of specific and tangible relevance in this regard.

First, we should of course give the highest priority to the implications of Brexit on the human rights of all those who live in Northern Ireland. Professor Harvey and Mr. Farrell addressed some of the specific discrete areas of policy in that regard. Second, the Irish Government should defend the integrity of the Good Friday Agreement and its institutions, specifically those linked to the human rights pillar of the Agreement. In addition to its value to all the people of Ireland, the Good Friday Agreement is of profound international significance as it is a peace agreement which is firmly founded on human rights principles. It has been an exemplar for peace processes in other parts of the world, and indeed the Irish Government has extended its experience and expertise to be of assistance to similar processes on that basis. Therefore, the collapse or erosion of the human rights structures of the Good Friday Agreement are of equally great resonance on the international scale.

Third, and finally, the Irish Government should recognise that Brexit cannot be understood in isolation. Brexit is not simply a bilateral matter; it is part of a wider process of attacks on and erosions of human rights in the United Kingdom and at European level. The wider forces of regression of human rights are becoming stronger across Europe and it is essential that those countries that retain a firm commitment to human rights, which Ireland clearly does, define their position in the Brexit talks as being grounded in a commitment to defending the laws and institutions of those rights at all levels.

The Irish Council for Civil Liberties believes that such a principled multilateral approach to the Brexit talks, recognising Brexit as being about much more than a set of North-South and east-west issues, would be consistent with Ireland’s well-established international profile on human rights, but would also have the effect of strengthening our position at the European level as an active voice, not just on Brexit, but on the wider discussions about the future of Europe which are inextricable from the Brexit process and which must certainly follow as a priority for the Union as a whole.

I thank Mr. Herrick for that very detailed and thought-provoking submission.

Mr. Michael Farrell

I thank the Chair and Senators. I would like to thank the committee for the invitation to address it on aspects of the challenges that arise from the prospective withdrawal of the UK from the European Union. I apologise, because when I look at it now I see that the text of the presentation that I sent in is dated 27 April 2117. I know that Winston Churchill once remarked that after the cataclysm of the First World War the dreary steeples of Fermanagh and Tyrone still stood above all as the waters of the deluge declined. I sincerely hope that in 2117 our descendants and grandchildren will not still be discussing problems in respect of Northern Ireland. Without being over-dramatic about it, I think that if we do not grasp the issue of Brexit and deal with the problems that it creates in respect of Northern Ireland, it will perpetuate the situation there. We must, therefore, deal with this seriously.

I completely agree with what my colleagues have said about the human rights aspects of this. I am a former chairperson of the Irish Council for Civil Liberties and a former member of the Irish Human Rights Commission, so I am really interested in all of that. I strongly support what Professor Colin Harvey said about the joint committee of the two human rights commissions. I was also a member of that. That is a body that has a useful role to play at this particular point in time. Its problem has essentially been that it has not been adequately funded in the past. It would be a good thing for the Government to provide specific funding for that body to be more effective.

Having said that, I will concentrate on a much narrower issue, which is the issue of citizenship. The accord between the UK and Irish Governments, the Good Friday Agreement, contained a specific 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”. It went on to say that the two Governments “confirm that their right to hold both British and Irish citizenship is accepted by both governments and would not be affected by any future change in the status of Northern Ireland”. This was remarkably prescient. I do not think this situation was in mind at the time but it is a remarkably prescient and useful comment on that. This was a very significant acknowledgement, by the UK Government in particular, of the legitimacy of the expression of Irish identity and the holding of Irish citizenship by citizens of Northern Ireland. It helped to build confidence in the peace settlement in Northern Ireland and assurance that the settlement was based on parity of esteem between those expressing an Irish identity and those expressing a British identity. Of course, it also involved recognition by the Irish Government of the legitimacy of people in Northern Ireland expressing a British identity.

The effect of the recognition of citizenship was reinforced by the removal of border controls which allowed seamless traffic. That word is used a lot now but there genuinely has been seamless traffic across the border in both directions. I heard something on the radio this morning which said that there are in the region of 900,000 crossings of the Border every month. That has also led to growing familiarity and understanding between North and South. All of this was also greatly facilitated by the membership of the EU by both the UK and Ireland. That familiarity, I believe, has greatly lessened tensions within Northern Ireland and has created an atmosphere of greater normality. It created a sense that there is nothing inherently threatening to other people in a person holding Irish citizenship, nor is it something that should be frowned upon by the establishment, as was probably felt in the past.

If Brexit results in a hard Border or the establishment of immigration or other Border controls, it would seriously undermine the sense of security and acceptance of Irish identity created by the acknowledgement of the right to Irish citizenship and could rekindle a sense of isolation and alienation among those holding an Irish identity in Northern Ireland. I am not trying to be melodramatic and I am not suggesting it could lead to a resumption of the armed conflict or anything like that but it could undermine the institutions that have been set up in Northern Ireland which are already in considerable dispute. We have seen from the recent election results and the attempts to form an administration that there are still great difficulties there. The undermining of the valuable solace that recognition of citizenship has given to a part of the community there could contribute to instability and worsen the divisions there. It would also begin to undo the effect of the growing cross-Border links that have developed over the past 20 years and it would, of course, greatly inconvenience and anger the very large number of people who cross the Border every day to go to work, school or sporting events. The UK Government has said it does not wish to see a hard Border. In fact, it has said in the White Paper on exit from the EU that it wants to see "as seamless and frictionless a border as possible”. However, the problem with that is the qualification "as possible". What is going to be possible and who decides what is possible? The Border will, of course, be a Border between the UK and the EU and there will be pressure on both sides to have immigration controls. Mr. Liam Herrick has mentioned the climate of opinion in Great Britain, the anti-immigration attitudes there and the degree of racism that has been demonstrated since the referendum. There will certainly be elements in Great Britain looking for a very controversial and aggressive anti-immigration policy. There will probably be elements in the EU that do not want to facilitate easy movement between the UK and the EU after the exit. Whatever the British Government says about wanting a seamless and frictionless Border, there may well be difficulties about that.

I would suggest the Irish Government should strongly oppose a hard Border in the interests of protecting and strengthening the peace settlement and in the interest of protecting its own citizens, including its citizens in Northern Ireland given that a very substantial number of persons living in Northern Ireland now hold Irish passports. I looked at the figures. A total of 65,716 Irish passports were issued to applicants in Northern Ireland in the past year. All members know that there has been a huge increase. The number is fairly large in a place with a population of 1.8 million. That is just in one year. Members know that the number of people applying for passports has grown exponentially since the referendum and that almost the entire population of Northern Ireland is entitled to Irish passports if it wants them. In addition the Irish Government as a member of the EU cannot facilitate curbs on the free movement of other EU citizens from Ireland or other EU countries.

How can this problem be resolved? I would suggest that the Irish Government should press for no restrictions on travel between North and South and that any immigration controls the UK wishes to impose should be located at the entry points to Great Britain, that is, England, Scotland and Wales. Residents of Northern Ireland should be able to use normal identification documents such as driver licences rather than passports so that passports are not required to move between parts of the UK. My colleague, Mr. Colin Harvey, has informed me that he does not have a driver licence so he may have difficulty finding what sort of document he could use but I am sure that could be got over.

Give him electoral ID.

Mr. Michael Farrell

If the common travel area is retained, as I hope it will be, residents of the Republic could use similar identification documents. If there is opposition to this by any interests in the EU, it could be pointed out that the situation in Northern Ireland is both unique and somewhat fragile. It is unique in that the UK Government acknowledges the right of residents there to be citizens of another state which is an EU member, that very many residents are Irish citizens and that almost all are entitled to be Irish citizens, and therefore EU citizens, if they so choose. There are examples of other situations where the EU has been able to accommodate special relationships with regions or territories of member states such as the Isle of Man, Gibraltar and the large British bases in Cyprus, which all have some sort of connection with the EU but are not part of it. Greenland and the Faroe Islands, which are part of the state of Denmark, are not part of the EU so the EU can deal with unusual situations. There are many small countries on the fringes of the EU with which the EU has free trade agreements even though these countries are not in the EU. In the British White Paper, I read that Gibraltar is not part of the Single Market but is governed by EU law, which is quite relevant to the question of EU law continuing to pertain in Northern Ireland. I am sure the Government is telling the EU that the EU has committed a great deal in money and resources to supporting the peace process in Northern Ireland over many years and it would be inconsistent with previous policy to now take actions that might undermine or weaken that process.

There is also one very specific aspect of the entitlement to Irish citizenship that I would like to address. Under the Good Friday Agreement and the relevant Irish legislation, children born in Northern Ireland who have at least one parent who is an Irish or British citizen or has permanent residency are entitled to become Irish citizens. However, parents of such children who are living in Northern Ireland are not entitled to become Irish citizens by naturalisation, although they may be entitled to UK citizenship. This has resulted in a situation where there are families where the children are Irish and EU citizens but the parent or parents are not. In an extreme situation, it could lead to the parent being deported while the children are allowed to stay in Northern Ireland. In the current situation of uncertainty about the future status of EU citizens and third country nationals living in the UK, there is anxiety and concern among the small but important ethnic minority community in Northern Ireland about their position after Brexit and some of them, who have lived there for long periods, would like to apply for Irish citizenship. If they lived in the Republic, they would be entitled to apply for naturalisation after five years but their residence in Northern Ireland is not reckonable. Almost all other parts of the legislation dealing with citizenship talks about birth or residence on the island of Ireland but this one area talks about birth or residence within the State. This could be resolved fairly simply by allowing residence in Northern Ireland to become reckonable in the same way as residence in the Republic. This could be done administratively or by amending the Act and it would be of considerable value to the ethnic minority community in Northern Ireland and win a good deal of goodwill from it.

My fellow speakers this afternoon will deal in more detail with human rights provisions but I would like to mention that membership of the EU brings with it two very important guarantees of human rights protection. It is a condition of EU membership that all member states must adhere to the European Convention on Human Rights, ECHR, and all member states are now bound by the Charter of Fundamental Rights, which has the status of the founding treaties of the EU. There is also a commitment in the Good Friday Agreement that the ECHR would be incorporated into domestic law in Northern Ireland. The British Conservative Government has pledged to repeal the Human Rights Act by which the ECHR was brought into domestic law in Northern Ireland. Everybody living in Northern Ireland is currently protected by these two very powerful instruments - in the case of the ECHR through the medium of the Human Rights Act while the Charter of Fundamental Rights has direct effect as EU legislation. These two instruments also have the important characteristic that the ultimate court of appeal in each case is a court made up of judges from all the member states.

In Northern Ireland, that has been an additional confidence-building factor where, in the past, there was not always confidence in the impartiality of the Judiciary. I believe the Judiciary in Northern Ireland has demonstrated its impartiality but still there may be people who doubt that and the appeal to an external court is very important.

The UK Government has committed to repealing the Human Rights Act and replacing it with a British bill of rights, which many fear would weaken its effect in certain areas. Sections of the Conservative Party want to withdraw from the convention entirely. That has been deferred for the moment because of Brexit but the current Government has said that, as part of Brexit, it would withdraw from the Charter of Fundamental Rights and the jurisdiction of the Court of Justice of the European Union.

European Union law, reinforced recently by the charter, has been the source of much progressive legislation on equality issues in Northern Ireland and there are concerns that withdrawal from the charter and the EU would undermine those gains. As Professor Harvey has stressed, protection of human rights has been a fundamental part of the Good Friday Agreement. I would suggest that the Irish Government should press for a commitment that there should be no regression from the level of human rights protections that currently obtain in Northern Ireland and that the UK Government should give an undertaking that the Human Rights Act and the European convention should continue to apply there, whatever about the rest of the UK, and that Northern Ireland should continue to be bound by the Charter of Fundamental Rights and the jurisdiction of the Court of Justice of the European Union.

Ironically, the Good Friday Agreement contained a commitment to equivalence of human rights protection in both the Republic and Northern Ireland. That was originally aimed at requiring the Republic to incorporate the European convention into domestic law as it had been in the North but the same principle should apply now to Northern Ireland in order that its residents should retain the protection of the European Convention on Human Rights and the Charter of Fundamental Rights, which will continue to apply in the Republic since the Republic is an EU member.

I thank the witnesses for their excellent presentations, which are food for thought for the committee. As we are getting closer to 4 p.m. I will take members' questions together and I ask them to try to limit their comments or questions to two minutes at most. I will call Senator Higgins first.

I apologise that I have to leave at 3.30 p.m. but I will read the witnesses' replies in the Official Report. I want to make a number of points. This discussion is extremely interesting in that it goes to the fundamentals of the Good Friday Agreement and I am happy that the committee is focusing on these issues. Interesting proposals were put forward around clarifying access. The Good Friday Agreement speaks 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 but on the other routes to citizenship, Mr. Farrell set out some interesting proposals. That is something the committee could look to because as well as addressing the needs of families where there may be third party or even EU citizens who are married to individuals born in Northern Ireland, if a situation arose where this was further extended to those in Northern Ireland who will be able to be in possession of an Irish and an EU passport, it may strengthen our case in respect of the Border issue. That was a constructive and interesting proposal.

A point that came across strongly was about Ireland's duty as guarantors of rights. I see three or four proposals as to how we may wish to assert that in negotiations and I would like to hear the witnesses' views on where they believe we may end up on that. The first is that, ideally, we would retain the Human Rights Act, which is a fundamental pillar; second, as a minimum, we would retain applicability of the Human Rights Act, which represents the European Charter on Human Rights, within the territory of Northern Ireland; and third, any repeal process would be replaced with an equivalent value. That is something we need to start asserting strongly and we can assert that outside of the European negotiations. That discussion arose earlier in that there are issues Ireland needs to be discussing and highlighting in terms of reminding the UK, particularly as it enters an election period, of its guarantorship in that regard and making it clear that Ireland views that seriously.

In terms of ensuring that the replacement maintains a standard, an equivalence audit is one thing but mention was made also of the idea of an annual equivalence statement. That is something that could prove to be very strong and positive. What is important about it is having a baseline and ensuring that we do not have regression but allowing for a marker if a separation occurs. It was put in originally to bring Ireland up to the standards that pertained in some parts of the UK but if we sought advances in areas such as reproductive rights and other human rights in Ireland and if there is a gap in that regard, that equivalence statement would allow that discussion to become clear and would support those in Northern Ireland who say they want to keep in mind that commitment to an equivalence of human rights protection. It would be a valuable thing to do. In terms of the cross-Border bodies, somebody mentioned having an input into the debate on human rights to ensure that those in Northern Ireland can have an input from their experience into shaping the wider human rights debate.

These are constructive proposals. I look forward to seeing where we go as a committee with them. I am very sorry that I cannot stay to hear the rest of the debate but I will follow it with great interest.

My last point is that I am a member of the Council of Europe Parliamentary Assembly so I had an opportunity to hear Mr. Muižnieks's presentation. Mr. Farrell mentioned the others as well in terms of the importance of who administers the human rights. When we talk about equivalency of human rights, and it seems there is a determination now to pull back from that, will it be adequate to have equivalent rights on paper if they are administered only within UK structures or is there a need to examine some form of international or at least cross-Border vindication of those rights that may come in under the replacement of the Human Rights Act? I am interested to hear the witnesses' views on that.

I thank the gentlemen for their presentations. The only aspect that is consistent when we navigate our way through this kind of process is that nothing is guaranteed or tangible about it and that there are many threats to the hard-fought-for and hard-won arrangements agreed between both parts of this island.

I want to make a couple of points. I endorse fully Michael Farrell's point about new communities and the right of people of ethnic minority who have made their homes in the North to avail of Irish citizenship, particularly if they are rearing their families here and contributing to life and peace on the island. That would be a positive move the Irish Government could take unilaterally or even as part of the negotiations on amending the Irish Nationality and Citizenship Act. It is something this committee, and these Houses, should consider in terms of lobbying with the Government. It would be useful to hear a broader concert start to emerge around that issue also.

If he does not mind me saying so, Professor Harvey outlined a raft of potential implications and threats in terms of the undermining of the existing arrangements through Europe but also through the bespoke arrangements of the Good Friday Agreement. I have a question that I have asked of other contributors to this committee to which, to be fair, the witnesses may not have the answer; there may not be an answer to it. The European Parliament's Committee on Constitutional Affairs recently published a report - if the witnesses have not seen it I can furnish them with the details - in which it stated that the Good Friday Agreement would be altered as a result of Brexit. That is the term it used. I wonder about the legal implications of that in terms of the British Government acting unilaterally around Brexit, which would then see the alteration of the Good Friday Agreement which, as we all know and has been said earlier, is an agreement between both Governments as co-guarantors.

Specifically, can a referendum on Brexit usurp, undermine or take precedence over the referendum that took place in this State in 1998 to endorse the Good Friday Agreement? Obviously, we need not get into the politics of the vote that existed in the EU referendum in the North and the desire to remain in the EU. I appreciate that it might be quite a new or even an unfair question but what are the witnesses' views on it?

The issue of the mechanisms of accountability was touched on. Given that we are facing into a fairly significant and major summit on Brexit at the weekend, what accountability mechanisms are open to the Irish Government in terms of protecting the status and primacy of the Good Friday Agreement?

I thank the contributors for their considered papers. A couple of points occurred to me. Mention was made of the possibility of immigration controls coming in the wake of Brexit. It seems to me that the United Kingdom does not propose to impose a hard border in terms of immigration controls. It seems that the United Kingdom intends to control immigration by internal controls on access to labour markets, housing, welfare, social services and the like and that it proposes to maintain visa-free travel for EU citizens to the UK. If that is the case, there will not be such a huge problem from the Irish point of view because people will be able to get off the Eurostar in Euston station, Paddington station or wherever it arrives, show their passport and walk on in exactly the same way as they do at the moment. That is one point. I do not think we should get too concerned about immigration controls because I do not believe the British Government intends, as regards EU citizens, to introduce any new form of visa-type requirements for permission to enter the United Kingdom.

My second point is that the Charter of Fundamental Rights of the European Union has a double application. It applies to the institutions of the European Union in all of their activities and to member states when they are administering EU law. If Brexit takes place and Britain eventually leaves, one would imagine the first of those legs falls away completely. There is a subtlety to the second leg on its application to the member state when administering EU law. One could say that at the moment, it is incorporated by treaty, and the UK Parliament has ratified those treaties, into all EU law and will be preserved as part of the acquis being transferred into domestic law. If one likes, the spirit of the fundamental rights will come with it as an interpretative guide. That is one way of looking at it but it very much depends on how the Westminster Parliament decides to transpose EU law, obligations and rights into domestic law. Will it expressly preserve the charter's influence as to how they should be interpreted or will it sweep it away?

This will be my last point. I was listening to a BBC radio programme and it seems that on this occasion the Conservative Party will not make a part of its manifesto a proposal to scrap the European Convention on Human Rights in its entirety even though it is clearly a long-term aim of the party. There is the possibility, which I think is more than a possibility but a real likelihood, that the UK Parliament will not just simply repeal the Act relating to the European Convention on Human Rights but will come up with its own Bill of Rights. Whether it is a UK Bill of Rights, a British Bill of Rights or an English Bill of Rights or whether the European Convention on Human Rights' application to Scotland, which is internalised into the law of Scotland at the moment, will continue or whether there will be a different approach to Northern Ireland are things we definitely need to consider. I agree that the fundamental rights aspects of the Good Friday Agreement are thrown into question by the simple ending of the application of the Charter of Fundamental Rights and the question mark over the future applicability of the European Convention on Human Rights. Given, as Mr. Farrell stated, that the European Convention on Human Rights provisions of the Good Friday Agreement were supposed to spur us on to greater things, it would be an irony indeed if it ended up that the wording of the agreement required Britain to equate its fundamental rights to the Irish fundamental rights provisions in Northern Ireland. However, that is an irony of the situation.

I thank the witnesses for their presentations. My colleagues have asked some of the questions to which I was interested in hearing answers. One issue that has come up also came up with the House of Lords and was raised by civil rights groups. In the current context of the UK's membership of the EU, it has instituted Operation Gull, which has been accused of racially profiling people who are travelling from Northern Ireland into Britain, and has immigration officers in place already. This has been happening for a number of years, prior to the Brexit vote. In one calendar year, 792 people who tried to enter Britain from Northern Ireland were arrested. Have the witnesses a view on what has been happening and do they see it being continued or formalised?

The solution put forward by many of those who have presented to the committee is that a way to operate immigration controls is outside of what they are proposing in terms of social welfare and health access, which is to restrict people's movement into the UK because they will not be able to access those services. It has already instituted what would be regarded as racial profiling in Northern Ireland for those who are leaving. Instead of having immigration controls along the Border between the North and the South, we have made a proposal. There probably will be custom controls but the idea of stopping people going over and back to work or college every day is farcical given that it could not secure the Border in the height of the Troubles. It is, therefore, hardly likely it will be able to do it in terms of Brexit.

Have the witnesses a view on what should be done at Derry, Belfast and Larne? Should Operation Gull be suspended? Alternatively, should the UK institute its immigration controls in Northern Ireland rather than trying to have Border controls on people travelling between the North and the South? It seems bizarre. We had members of the Northern Ireland Affairs Committee of the House of Commons here and we outlined that there already are immigration controls between Northern Ireland and Britain. Rather than instituting a reinstatement of the Border, the immigration controls in the UK that were there between 1939 and 1952, when it required people travelling from Northern Ireland to Britain to produce identification documentation as if they were travelling from the Republic, should be formalised. What are the witnesses' views on Operation Gull?

I will throw it back to the three witnesses. Does anyone in particular wish to begin? I will not set an order this time. I will let them come in to address some of the points made and questions asked.

Professor Colin Harvey

I will try to pick out a number of the questions and go through them.

The answer to the question about human rights equality is that when we talk about the unique circumstances of this island and the Good Friday Agreement, we have to recognise that human rights and equality are central to the Good Friday Agreement. That means that sometimes we are not just having a conversation about citizens but about human beings on this island. It goes back to the question about immigration control. If this becomes a conversation about British citizens and Irish citizens only, we forget some of the people on the island who may suffer most as a result of some of things we are discussing, including immigration control and immigration laws and policies that are coming out of Westminster that are frankly horrendous and appalling. A big question for Ireland and the Irish Government is whether it will be led by an increasingly repressive and restrictive approach to immigration coming from the British Government and the Westminster Parliament given that Brexit was majored on migration control. This is a big issue of principle for the Irish Government and people on this island, whether we want to start thinking differently and start a new conversation about how we engage, North and South, with the rest of the world, or whether we want to keep following what is at times an appalling approach to immigration and refugee and asylum policy coming from Westminster.

On equivalence, the Northern Ireland Human Rights Commission produces an annual statement on human rights in Northern Ireland. Why not have an annual statement about how we are doing on the island? I often have a sense that we do not talk to each other enough. We talk a lot about all-island co-operation but we do not talk to each other enough. There could be an annual statement from a reimagined joint committee dealing with how we are getting on, North and South, in human rights and equality and showing where there have been advances here and there, and this would inform the conversation. To push that a bit further, in terms of participating and engaging in the wider EU conversation, is there a way to link this reimagined joint committee to the European Fundamental Rights Agency to ensure, for example, that people in Northern Ireland are not left out of the conversation about where the EU is going? There are things like that and we need to start that conversation. I cannot see how having an annual equivalence statement and audit to see how we are performing on human rights and equality on this island to inform the conversation would threaten anyone. I myself would find that incredibly helpful as a document.

On international supervision, it is no secret that that the UK Government is not particularly enamoured of the Strasbourg court, the European Court of Human Rights, nor is it especially enamoured of the Court of Justice of the European Union. In the case of Northern Ireland, the European Court of Human Rights in Strasbourg has been very important in the development of jurisprudence under the European convention system. International supervisory mechanisms are absolutely essential. It is important for us all to have that international human rights oversight. It is important for the European Convention on Human Rights to have that international Strasbourg court there and it has been important for human rights in Northern Ireland. I hope it continues long into the future. It has played an important role.

How many times have we referred to the Good Friday Agreement this afternoon? We keep talking about it, but some of the biggest debates that are taking place on the island are among those who feel it has not been implemented. There are still parts of it that are a work in progress. The debates continue on the puzzle, the jigsaw or whatever analogy one wishes to use. For those who say it has been underenforced, the logical next step is to ask what can be done about that. On the issue of there possibly being a breach of the Good Friday Agreement, one of the things we are discovering which should shape the Irish Government's approach in the time ahead and why there is an onus or responsibility is that more legal hard work - I put it as strongly as this - needed to be done on tying down legal aspects of that Agreement. Looking at the British-Irish Agreement, which is the international agreement between the UK and Ireland, it is very light on enforcement. What does the Irish Government do if it believes the British Government is in breach of the Good Friday Agreement? Not very much in terms of legal enforcement, it would seem. That is a big problem.

We found the same question last year in terms of litigation around Brexit. Many of us, including myself, working in Belfast, teaching constitutional law, thought that something legally significant happened in 1998. The UK became a more constitutionally and legally pluralist place. There was devolution in Scotland, Northern Ireland and Wales, and the old, traditional UK model was passing away. We found out last year that was not the case. The Westminster Parliament remains supreme, very much working from the centre with a command and control model, and that constitutionally and legally pluralist understanding that we all thought we had fell apart. That is a big problem. In any negotiations wherever they happen, whether at EU level, power-sharing in Northern Ireland or whatever, much harder thought must be given to putting the principles that we have been talking about this afternoon on a firmer legal footing so that we are not left in a position where we see that this seems to be being breached but we do not seem to able to do anything about it. That is urgent.

To put it more melodramatically, there are only so many times with the Good Friday Agreement where it is possible to say that one of the participants has left the building. There have been moments over recent years that the British Government has simply left the building in terms of the Good Friday Agreement principles. If nothing can be done about that, that is a big problem and for the Irish Government in particular. That needs to be addressed urgently. From the perspective of an academic lawyer, with all the flaws that they have, there must be more thought given to law.

That is an insightful answer but I wonder if Professor Harvey has a view on the mechanics of that. I would share his sentiment about the need for an Irish Government to challenge that, not only as co-guarantor but as co-defender, perhaps even the only defender, of the Good Friday Agreement. Does Professor Harvey see a role for the Irish Government as the negotiations progress in arguing with European colleagues or does he see other avenues, if there are any, for redress not only for the failure to implement elements of the Agreement but also a potential unilateral alteration as suggested by the constitutional affairs committee?

I ask Professor Harvey to be brief as we must move on to his two colleagues.

Professor Colin Harvey

I have thought long and hard about the legal side of it. If, at the far end of this process, we wanted to pursue legally the things we have been talking about today through a new British-Irish agreement, whoever drafts that legal instrument needs to give much more thought to issues around enforcement and implementation than is currently the case around the Good Friday Agreement. I put it as strongly as that.

I mentioned that in the draft negotiating guidelines, the EU sounded like it was inserting itself into guarantor-type territory. If there is a withdrawal agreement around all of this, and whatever happens about the unique and special status arrangements, we need to give much more thought to not being in the position where we say that one party is in default in relation to the agreement, that they are not respecting the basic and fundamental principles, and we cannot legally do anything about it. Whoever is involved in those conversations, be they lawyers or drafters or whoever, needs to think about the process of how one calls it when another party is in default of an international treaty.

On the International Court of Justice which Ireland signed up to only recently, why are Northern Ireland and Britain excluded? When we signed up for it, it covered every country in the world except for Northern Ireland and Britain. Why?

Professor Colin Harvey

Some thought has been given to that and the conclusion was that it is not a mechanism that can be used to enforce the British-Irish Agreement.

I know that its rulings are not binding but it has been widely quoted because of its standing.

Of all the countries in the world over which Ireland would want to have findings, why did Ireland not include Britain and Northern Ireland specifically as part of the jurisdiction of its signing up to the international court?

Professor Colin Harvey

There are two aspects to that. First, the question of leaving effectively unenforceable instruments such as this will have to be thought about in the discussions to come. If - and that is an "if" - there is beyond the withdrawal agreement some kind of new British-Irish agreement, thought will have to be given to how it will be implemented and enforced, including judicially. Second, Ireland has gone to the European Court of Human Rights regarding the UK and gone back again, as we know, regarding a situation in Northern Ireland. I say this because we are in a serious situation whereby one gets to a point at which if one of the participants in a peace process is paying continual lip service to its core principles while not respecting them and there is nothing one can do about that, that is a big problem. There are many other contributors to the problems we face in Northern Ireland but that is one of the major issues. Much more thought needs to be given by the Irish Government in the weeks and months ahead in these negotiations. I live in Belfast. I do not want to be stuck in 20 years' time with political principles agreed as part of this discussion to find out 15 years down the road that they are paper principles and are meaningless in practice. It is for the Irish Government and for me as an Irish citizen living in Belfast to make sure that will not be the case in the future.

I have spoken too much but, to repeat the point about Operation Gull and other matters, I genuinely think that on this island we need to start a new conversation about where we want to go on some of these issues, including immigration, asylum and refugee policy. The Westminster Government is going, in my view, to a bad place in respect of some of these issues and we must bring our mind to these questions. For example, does the Westminster approach to immigration and asylum suit us in Northern Ireland? It is not a devolved issue down the road. It is the same in Scotland. We need to think of more constitutionally pluralist ways across these islands. Migration is one such issue, and we need to see human rights and equality. Racial profiling is appalling, given some of our values and principles, and we should not be involved in arrangements that are facilitating it.

Many people thought a new constitutional conversation was happening in the UK, in Scotland as much as Northern Ireland. A shocking thing for many people involved in constitutional law was that they thought the UK was becoming a more constitutionally pluralist place, a place where the Good Friday Agreement principles were respected in law but unfortunately, in the past few years that has proved to be wrong.

Mr. Liam Herrick

I will address three of the questions very briefly. Senator McDowell asked a question about the Charter of Fundamental Rights and how it might be interpreted or applied into the future. This was a subject of consideration of the Joint Committee on Human Rights in Westminster. I think it published a report in December, and this was its main topic of examination. Two themes came through in its conclusions. The first was we must bear in mind the structure of the United Kingdom's constitution when we consider the application of quasi-constitutional human rights principles and the capacity or status those principles are likely to have under United Kingdom law into the future. The second point is one which has come up a number of times this afternoon. Whatever about the legal possibilities of enforcing law that currently stands, it is very hard to see how the United Kingdom will be able to reflect the developing jurisprudence of the Charter of Fundamental Rights within its legal system as it becomes severed from the centre.

The second question is that which Senator Higgins raised about the audit of rights. We have been talking about this in a somewhat simple way this afternoon, but the topic received some examination at the recent all-Ireland civic dialogue hosted recently by the Department of Foreign Affairs and Trade and the National University of Ireland, Maynooth. The Department of Foreign Affairs and Trade and the Government deserve great credit for the prominence they gave to examination and a very deep probing of these human rights issues in their civic dialogue. However, I think the conclusion of the experts who participated in it was the sheer scale of what will be involved and the committee might have got some sense of that this afternoon. There are the known unknowns and the unknown unknowns about the possible extent of human rights implications of the withdrawal of the United Kingdom from the European Union and the scale of the auditing task and a complete uncertainty as to who would have the capacity or the competence to carry out that task of auditing. It is clearly incumbent on both Governments to step up and begin this process but it is not at all clear what time or resources would be required even to conduct the identification of the wide range of rights issues involved in areas such as child protection, policing co-operation and so on, all of which give rise to human rights issues.

Third, there is the question of the Human Rights Act. Senator Higgins raised the question of how domestic enforcement of the European Convention on Human Rights might compare with the Strasbourg mechanism of enforcement in the scenario in which the United Kingdom withdraws from the Council of Europe or the European Convention on Human Rights or repeals the Human Rights Act. I cannot emphasise strongly enough the extent to which the withdrawal of the United Kingdom from the European Convention on Human Rights and what this would precipitate, which we can assume would be its withdrawal from the Council of Europe, would be a disaster for the protection of human rights across the Council of Europe area as a whole. I refer to a core nation, a member state of the Council of Europe and a country that was a founder of the human rights mechanisms within the Council of Europe, withdrawing from these bodies and the effect this would have on the wider European discussion about human rights at a very sensitive and fragile moment. Ireland cannot afford to be a bystander to this, not just in respect of its impact on us on this island but also with regard to the very positive role Ireland has always played in supporting the institutions of the Council of Europe. This goes back to Senator McDowell's questions about the Bill of Rights. I am deeply sceptical, as indeed are our colleagues, Liberty in the United Kingdom, about the potential or the intent that the bill of rights would really reflect equivalence with the existing protection of rights under the Human Rights Act. I do not think we can at all assume that the intention or the likelihood is that it would have that equivalence. Even if it were to do so, it would still have the effect of isolating Britain from wider European human rights protections, which can only be seen as damaging to Europe as a whole.

Mr. Michael Farrell

I will return to the question of citizenship raised by Senators Higgins and Ó Donnghaile. I raised the question of third-country nationals in Northern Ireland. I stress it again because it brings up another point, which is that sometimes the question of Irish citizenship is seen in orange and green terms and that it is a matter for people who want a united Ireland and want to be Irish citizens and vice versa. It is not as simple as that. Irish citizenship is also citizenship of the European Union. We also now have a perception in this State that it is wider than we saw it in the past. It is not a purely Gaelic Ireland and we welcome people from other countries and other cultures. It would be very helpful to the ethnic minority community in Northern Ireland to facilitate them in this and would also be a very good gesture on the part of this State towards inclusivity and trying to make slightly less controversial the question of citizenship so that it is not just seen in Unionist-Nationalist terms. That would be valuable. This leads us to think about citizenship in rather a broader way than usual.

Senator Ó Donnghaile also asked whether the Good Friday Agreement could be overturned by Brexit.

It is an international treaty and there are elements in it to which the British Government is committed and I do not believe it can overturn it. The question of who enforces it may be a different matter, but there is no legal overturning of it. Senator McDowell spoke of a hard border and the possible repeal of the Human Rights Act and its removal from the EU Convention. The Senator does not think the British Government wants a hard border. We cannot assume this to be the case. We must maintain the position that it should not happen and we must argue for it.

I am not suggesting otherwise.

Mr. Michael Farrell

I am sure the Senator is not, but it may be a question of emphasis on what the urgency is about this. We are now into speculation but given that there will be an election in the UK, there are sections of the Conservative Party that would want a hard border against European Union nationals and not just third country nationals. There has been a great deal of controversy in Britain and a great deal of very unpleasant media comment about EU citizens who come to work in Britain such as Poles, Romanians and so on. There is, undoubtedly, a climate of racism on the fringes of British politics. It is not at all impossible that there could be a British Government still pushing for much stronger and more restrictive policies. We must be very clear in saying that this is not acceptable, especially in terms of the Border between the South and the North.

With regard to the question of resigning from the European Convention on Human Rights, and perhaps my colleagues have been saying this, there is no doubt that it is the policy of the Conservative Party to replace the Human Rights Act with its proposed British bill of rights. There are also sections of the Conservative Party, including the Prime Ministers in the past, that want to leave the European Convention totally. That is also something that we cannot assume will not happen. We must argue for the position that the UK should not do that.

It will also be important to say to our European colleagues that the Charter of Fundamental Rights applies to the European Union itself as well as to the member states, a point made by the Senator. In the negotiations this also applies to the values in the charter and, therefore, in conducting the negotiations with the United Kingdom about its leaving, there are obligations on the European Union to try to ensure it protects the rights of European Union citizens. The rights of British citizens must be protected but, in particular, the rights of European Union citizens, who are the EU's own citizens, must be protected. In Northern Ireland, we have the special case where a very substantial section of the population is will continue to be European Union citizens. The European Union has a responsibility to try to ensure that their rights, as protected in the European Union, are also protected in the leaving of the Union.

Is Mr. Farrell suggesting that the Irish Government should press the other 26 member states to somehow handcuff any exit arrangements to the idea that Britain would remain part of the Strasbourg Convention, or something like that?

Mr. Michael Farrell

It does not necessarily have the power to do this, but in the negotiations-----

One could say that if the UK wants access to our markets then it must stay within the Strasbourg Convention. The EU could say something like that.

Mr. Michael Farrell

It should be part of the considerations that it should not be restricted solely to economic issues but that these issues should be there too and there is a responsibility to the people who will continue to be EU citizens. In the same way that Britain will have to pay into the future, the European Union has a responsibility to its outgoing citizens of Great Britain, even if they are leaving, to try to ensure they are left in a good and reasonable situation. It would be useful to bring this dimension into the discussions.

Senator Daly spoke of Operation Gull. I do not want to get into great detail in that area but I believe there is a danger that the Irish Government could be drawn into a situation of acting as the enforcer of immigration policies for Britain and these would be immigration policies that we would not accept for ourselves. For instance, as I have said, there is prejudice against Romanian and Polish immigrants in Britain and against Roma people. We should be very careful to avoid getting ourselves into a situation where we would be implementing a British immigration policy that we ourselves would not agree with and would not want to enforce in our own situation. I do not believe we would have the power to insist on it but it would be retrograde to have ethnic profiling, etc. carried out in Northern Ireland for the UK. If they want to carry that out in Great Britain, they should carry it out at the mainland immigration points rather than carry it out in Northern Ireland.

I thank Mr. Farrell and all the other witnesses for appearing before the committee and for giving so much of their time, expertise and knowledge. It is greatly appreciated and will feed into the work of the committee.

The committee now has some housekeeping to do so I ask members not to leave just yet as we will go into private session.

Sitting suspended at 4.07 p.m. and resumed in private session at 4.09 p.m.
The select committee adjourned at 4.20 p.m until 10 a.m. on Thursday, 4 May 2017.