Impact of Brexit on the Good Friday Agreement: Discussion (Resumed)

Apologies have been received from Deputies Declan Breathnach, Brendan Smith and Sean Sherlock, Senator Niall Ó Donnghaile and Ms Elisha McCallion, MP. Before we begin, I wish to acknowledge that today marks the 44th anniversary of the Dublin and Monaghan bombings. Those attacks marked the highest number of deaths in a single day during the Troubles. Our thoughts are with the families, the survivors and all of those affected by that dark day. I know that members will join me in reiterating the all-party Dáil motion calling on the British Government to allow an independent judicial figure access to all original documents relating to the bombings. Many people present were at that ceremony earlier.

We will now continue our discussion on the impact of Brexit on the Good Friday Agreement, GFA. I welcome Dr. Katy Hayward and Professor David Phinnemore from Queen's University, Belfast. They are renowned authorities on this topic and have produced several publications, including co-authoring a report for the European Parliament constitutional affairs committee. Last June, this committee published its report on the implications of Brexit for the Good Friday Agreement. We agreed to focus on Brexit and the implications for the Good Friday Agreement as part of the committee's work programme for 2018. The next EU summit is due to take place on 28 and 29 June and there is still no clarity in sight on the avoidance of a hard border. It is appropriate, therefore, that we return to consideration of this issue. I thank Dr. Hayward and Professor Phinnemore for agreeing to update us on their work on Brexit and the impact on the Good Friday Agreement, the Border and the peace process.

I remind members, guests and those in the Public Gallery to ensure that their mobile phones, tablets etc. are switched off completely for the duration of the meeting as they cause interference, even in silent mode, with the recording equipment in the committee rooms. I did hear a little squeak down the back earlier while we were in private session. I do not know who it was but it would be appreciated if it was turned off. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him, her or it 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 the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to 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 asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. I invite the witnesses to make their opening statements, which will be followed by questions.

Professor David Phinnemore

I thank the committee for inviting us to share some of our thoughts on what is a challenging, complex, multidimensional and multifaceted process. We have co-ordinated our comments. I will start and Dr. Hayward will follow. I wish to make three broad points. The first relates to the context and background in which the Good Friday Agreement was made and what will potentially happen to that context as a consequence of Brexit. The starting point for much of our analysis has been the fact that when the Agreement was agreed, and throughout its implementation, Ireland and the United Kingdom have been part of the European Union. The implementation of the Agreement has taken place in the context of shared membership of the European Union. That shared membership has provided a valuable and vital context, not only in the sense of additional means of promoting co-operation, integration and enhanced interdependency on the island between Northern Ireland and Ireland but also in respect of mechanisms through which relations can be improved and co-operation can be pursued. If we also think about the future, the shared regulatory context is often vital to the promotion of effective co-operation. Shared membership of the Union has been vital to facilitating the realisation of much of the ambition in the Agreement. Brexit has the potential to be significantly disruptive because of the UK withdrawing from that shared context. How disruptive will be highly dependent on the relationship between the UK and the EU after Brexit. There are many unknowns. It is incumbent on all of us to think through what the potential ramifications are of the different forms of Brexit for the future of the Agreement. It is also important to note that the context does not relate simply to trade, which has been the focus of a considerable amount of debate and discussion. There are also important human rights and social and economic rights dimensions as well North-South co-operation facilitated by a shared regulatory context, as well as various institutional dynamics.

There is considerable potential for disruption as a consequence of Brexit. However, my second key point is there are ways forward to minimise that disruption. I say that for two reasons. If we look at the commitments which both the British Government and the EU have entered into in respect of Brexit and the GFA, there is a high level of commitment to ensure that the Agreement can continue to be implemented in full on both the British side and the EU side. The level of commitment that has been at least voiced by the British Prime Minister, in particular, has been underestimated. The UK Government has issued a variety of commitments to maintaining the Agreement in full. Most recently, the Prime Minister had a piece in The Sunday Times. We also have to recognise - and this is not simply because of the successful activities of the Irish Government - the EU's level of commitment to maintaining the Agreement in all of its parts. That is reflected in a series of statements that have issued on different occasions. More important, that will to uphold the Agreement and support its continued and effective implementation is reflected in the fact that the EU is willing to engage in what we refer to as differentiated integration and some differentiated withdrawal for the UK such that a particular status can be conferred on Northern Ireland in order that it can have a different type of Brexit compared to the UK. The EU's language is very much of flexible and imaginative solutions. That is reflected in the existence and the content of the protocol that is being drafted as part of the withdrawal agreement.

My third point relates to the protocol. Elements of it were shaded green which suggested agreement between the British and the EU 27. There are also bits in yellow, suggesting that agreement in principle exists, as well as yet uncoloured elements which are, therefore, still up for debate and negotiation. It is important to note its content. It does not simply talk about customs, which much of the debate is focused on at the moment. It provides for an unprecedented level of regulatory alignment through this idea of a common regulatory area. It will essentially provide Northern Ireland with fairly privileged access to the Single Market. It also addresses the human rights issue. Rights have considerable prominence in the Agreement. There is also an extensive set of areas for North-South co-operation which the EU wants to ensure can continue to be supported through the regulatory alignment between the UK and the EU with respect to Northern Ireland.

I do have a word of caution about the protocol. We do not know the detail. The headlines are there on what it is to cover. However, significant questions must be raised on how far the regulatory alignment will go. Will it be sufficient? Will the mechanisms envisaged be sufficient to address the rights issues? The reason we cannot make an effective assessment at this stage is the fine detail to be contained in the annexes has yet to be published.

We should reserve judgment on how effective the protocol will be. Indeed, for a number of us who have argued that the best way forward would be for Northern Ireland to remain in the Single Market, the protocol falls short. It only provides for the free movement of goods. It does not provide for the free movement of services, capital or people, although obviously the people dimension is covered with respect to British and Irish citizens under the common travel area. While on the one hand the EU has progressed matters to the extent that the Good Friday Agreement enjoys considerable prominence in the negotiations, and there are potentially mechanisms to address some of the challenges around its continued implementation, we need to see the detail of what is ultimately agreed between the UK and the EU 27 before we can draw conclusions about how effective the new arrangements will be.

Dr. Katy Hayward

I, too, thank the committee for inviting us to present evidence to it today. I wish to make three small points and they relate to the perspective of looking ahead - thinking about where we are now and the risks we face.

The first point is that a key success of the Good Friday Agreement, and of course in the context of European integration, was the depoliticisation of the Border. Comments recently about Border polls and pointing to evidence from Border polls show that this is at risk of being undermined. A more particular concern in that regard is the quite public disagreement between the Irish and British Governments on the future of the Irish Border. This is not just an abstract ideological difference. It has a direct effect on political debate and positioning within Northern Ireland. It is a particularly polarising effect.

This is of concern with regard to my second point. Brexit is a process of negotiation that will involve a need for compromise and accommodation. In so doing it will have to be sold to a common or centre ground within Northern Ireland. The more disagreement there is publicly about the future of the Irish Border, the more this undermines the centre ground in Northern Ireland. It is important to bear that in mind in approaching the need to protect the Good Friday Agreement and, indeed, thinking about what Brexit might look like for Northern Ireland. On that point, let us not lose sight of the fact that there is quite a lot of consensus between all the main parties in Northern Ireland regarding Brexit and what is a priority for Northern Ireland. In particular, all the parties agree that any arrangement for Northern Ireland after Brexit must recognise the unique and particular circumstances of Northern Ireland. All the parties recognise the significance of the Border, are concerned to avoid a hard border and recognise the particular circumstances arising from the peace process.

It is important to focus on that consensus because my last point is that devolution must be restored. It must be a pressing priority for both Governments. I was pleased to hear the Secretary of State reiterate that it is a number one priority for the UK Government. This is vital because if we are to have bespoke arrangements for Northern Ireland after Brexit, not just during the transition but in the next five to ten years, it will be necessary to have properly functioning devolution, not least because that would enable the North-South and the east-west institutions to function as they were intended to in the Good Friday Agreement.

I thank our guests for travelling here today to be with us. My first question is on the referendum that led to Brexit, particularly in Northern Ireland. Northern Ireland is unique, from my perspective at any rate, in that it is a tripartite state with three separate entities having an interest in it, that is, the UK Government, the Northern Ireland Assembly and the Government of the Republic of Ireland. When the ballot was held nobody asked the Republic of Ireland what it thought. They just went ahead and held the referendum. Does that in itself destabilise the foundation of the Good Friday Agreement, which is that we would all work together?

My next question is about citizenship. This particularly relates to people who work in the witnesses' institution. Many members of the academic staff of Queen's University will have come to Northern Ireland not as UK nationals but subsequently were naturalised as UK citizens. The benefits of the Good Friday Agreement do not extend to them. Their children may regard themselves as UK citizens, Irish citizens or both but the parents of those children cannot. Do the witnesses see that problem being resolved? We have raised it with the Department of Foreign Affairs and Trade and the Secretary General said he saw no problem with it but now I suspect there is a problem. What do the witnesses think about that?

With regard to exercising the rights of European citizens, by virtue of geography and nothing else there is potential for 1.8 million Irish citizens, and therefore European Union citizens, to be geographically separated from the European Union in a post-Brexit world. How do they exercise their European rights?

The common travel area is mentioned often. I attended a conference recently at which we were told that there is no legal basis for the common travel area. For all intents and purposes it is a type of gentlemen's agreement. If that is the case will the Brexit deal require that the common travel area is underpinned by legislation, certainly within Ireland and the UK?

Finally, as academics, the witnesses must be seriously concerned about the possible limitations that could be put on students in availing of programmes such as ERASMUS and ERASMUS+ and of free movement across Europe. I have spoken to young people from both communities in Northern Ireland and it gives me great hope that they want to travel, to be a part of Europe and to share a common identity. Incidentally, the identity they portray all the time is, "I am Northern Irish". It is just lovely that they identify themselves thus.

I look forward to the witnesses' comments.

I welcome the witnesses. Their submission is quite interesting. Unfortunately, most people like the witnesses could spend their time going to meetings and functions and they could nearly eat out for the next five years on Brexit. A famous saying about Brexit is that we are where we are and we have to see where we will go now.

With regard to devolution, we are in a very dangerous situation. There has not been a government for one and a half years. The longer the two main parties are in a position, the more difficult they will find it to get out of it. That is not helping the Brexit issue, certainly on the island of Ireland, in Northern Ireland and in the UK. Both the DUP and Sinn Féin say they want to go into government. I attended an event marking the 20th anniversary of the Good Friday Agreement in Queen's University, which was fascinating. Two things stood out. One was Seamus Mallon saying that unionism needed space and air to breathe. One could see that reflected among the audience. The following night at the Goliath Trust, at a dinner to address education deficits in Northern Ireland, Bertie Ahern, who has his finger on the pulse, called on the two main parties effectively to stop the messing. I felt that there was a serious judgment in that room. I believe we are in a very dangerous situation. The two parties need help.

We were on Capitol Hill last week to thank the establishment, the politicians and the people of the United States for their involvement in the Good Friday Agreement and seeking some renewal as well. I never thought I would say this but Donald Trump is moving into Korea on 13 June. Perhaps when he is in London on 13 July, it could be a way out for the two parties to come together to set up devolution.

At present, everything is being tried. The Department of Foreign Affairs and Trade and the United Kingdom have been trying for a year and a half. I note that the politicians cannot make a decision and civil servants are being accused of stepping over the mark. We are in a very dangerous situation. We need every outside influence. Without the influence of the European Union and the United States, there would not have been a Good Friday Agreement. We had a great many strong leaders who were able to make that agreement.

Do the witnesses have an opinion on the third option emerging in recent days? It looks as if we are kicking the can down the road. If it gives everybody some space, it is welcome.

The witnesses said that the British-Irish relationship is key. In two weeks' time, we will have a plenary session of the British-Irish Parliamentary Assembly, BIPA, meeting in Sligo. BIPA meets every six months and relationships and friendships have been built up over time. For the past four or five years, we have had the North-South Interparliamentary Association and Members from Stormont coming down to Leinster House and vice versa. This has not been highlighted but the relationships we have built are significant.

I am very concerned and worried about what will happen when the United Kingdom leaves the European Union. For the past 40 years we have had 26 meetings on average daily between UK and Irish officials. I have no doubt that the interaction brought about the Anglo-Irish Agreement, which brought about the Good Friday Agreement and delivered peace to the island of Ireland and between the two islands. What more can we do to ensure that there is more inter-parliamentary interaction? Friendships among politicians break down doors. I hope there may be a breakthrough in the next few weeks. We have had a minority Government that has worked very well but we are united in ensuring that a good deal for the UK is a good deal for Ireland and the EU. We may need to think differently to get out of the current situation. As a politician, I would like to hear the views of our witnesses who are academics.

Our witnesses have been asked a great many questions.

Dr. Katy Hayward

I will start with the question on the restoration of devolution. There is a sense that we will not get devolution up and running again until after Brexit, so we will wait to see what the arrangements will be and then we will bring the parties together and restore devolution. I think that gives rise to concern because there is a vacuum in Northern Ireland in a very real sense, not just in terms of political representation but also in terms of decision making. There are urgent decisions and preparations to be made for Brexit that require political leadership. One of the reasons we think that Brexit makes devolution difficult to restore is the framing of it all. There is a very distinct difference between the British position and the Irish position on Brexit. This is why I think it is important to look back at what the parties themselves have said and how much common ground there is already. A letter from the Office of the First Minister and Deputy First Minister, OFMDFM, was an important marker on that, as were statements made by the North-South Ministerial Council and British-Irish Council. There is a great deal of common ground that can be built upon.

In order to get devolution up and running again, we need to go beyond looking at two parties. The other parties are vital to this process and they must be brought into talks to restore power sharing. There was too much concentration on the DUP and Sinn Féin in the most recent public efforts to restore devolution. Broadening out the process and involving the other parties will be absolutely critical. Given the context of Brexit, which has resulted in changes to the British and Irish Governments' positions, perhaps a third person, an independent person, could have a role. An external person might be able to facilitate the restoration of devolution and talks to restore the Executive and Assembly.

Professor David Phinnemore

I will take the issues in the order they were raised, and will deal with the referendum. If we look back to 2015 and 2016, I cannot recall any occasions when serious consideration was given to the context the Good Friday Agreement provided, such that people considered the status of Northern Ireland and the implications for the Good Friday Agreement arising from the referendum result which might mean that the United Kingdom would leave the EU. I do not think it was in anybody's thinking in London. It took the court case in the UK Supreme Court to work out whether consent was actually required. We still have a situation in Scotland where there are questions as to what role the devolved administration should have in this process. I am not too sure how that will pan out. The cynic in me might argue that it is quite useful for the British Government not to have the Northern Ireland Assembly and Executive up and functioning because it would add a third devolved entity which might want to bring claims against the British Government on whether Brexit can proceed without formal consultation.

On the citizenship issue, the point made is interesting that the children of non-UK nationals who have moved to Northern Ireland will benefit. There is another category of citizen involved. We also need to recognise that there are UK nationals who have moved to Northern Ireland who cannot avail of the rights provided under the Good Friday Agreement. Their children will be able to take out British or Irish citizenship or both, whereas the parents cannot do so.

I never thought of that.

Professor David Phinnemore

I encourage members to think about it. A cohort of families who have been long-standing residents of Northern Ireland, possibly pre-dating the Good Friday Agreement, will not enjoy the right to retain EU citizenship through Irish citizenship provided under the Good Friday Agreement. There are issues.

To the extent that those holding Irish passports and Irish citizenship in Northern Ireland avail of EU citizenship, it raises many interesting questions as to who will pay the hospital bill when, for example, a person living in Armagh travels, as an Irish citizen, for treatment in Sweden. Should the bill go to the Irish or British Government? There are also issues about where people go to seek redress if they believe their rights are not being upheld.

Dr. Katy Hayward

I wish to add a further comment on citizenship. I am thinking in particular about the text of the Good Friday Agreement in respect of equality between British and Irish citizens. I can understand how it has come about, but the potential for British and Irish citizens in Northern Ireland to enjoy very different rights gives rise to concerns that this will undermine that major principle in the Good Friday agreement about the equality enjoyed by citizens, both British and Irish, in Northern Ireland. There is an extra dimension and that is that inequality comes from an apparent choice of a person to decide to be British or Irish. It should not be the case that choosing not to have an Irish passport gives a person fewer rights than a person who makes that choice. This is a consideration that should be borne in mind in the longer term.

Assuming the United Kingdom leaves Europe, could a British citizen with no connection to the Republic of Ireland who wishes to obtain a European passport do so by moving to Northern Ireland? How long would a British citizen have to live in Northern Ireland to be eligible for an Irish passport?

To be eligible a person must be born on the island of Ireland.

One must be born on the island of Ireland.

Professor David Phinnemore

My understanding is that only if a person is born in the Northern part of this island can they get Irish citizenship through Northern Ireland. Naturalisation rules do not apply to people resident in Northern Ireland, one has to be resident in the Republic for naturalisation purposes.

I will come back to some of the other issues. I refer to the common travel area. One of the many things Brexit has caused us to reflect on is what the common travel area is. It is possibly less common than we thought. There is quite a discrepancy at times between what people think it is and what it actually is, partly because the rights which people assume they may have under the common travel area may actually be rights which derive from EU membership, it is just that they have become conflated over time. In one respect Brexit provides us with an opportunity to bring some clarity to the content of the common travel area and to put it on a sounder legal footing. The phrase "gentleman's agreement" was used, because it is a mix of agreements, understandings, conventions and practices, which we could do with codifying. Added to that there are some issues in there which we probably think are covered but are not. I will give one example which we see from a university perspective. If we are bringing students to a summer school from the United States or China, they cannot enter Northern Ireland through Dublin, they have to go through London. They cannot get off the plane in Dublin and travel North because an Irish visa is needed to be able to do that. We could make it a genuine common travel area through greater co-ordination between Britain and Ireland. There are other dimensions as well which could be addressed.

An interesting question was raised on the potential impact of Brexit on academics, students and universities and what opportunities we may have to address some of those. It is fair to say that there are concerns as to what this will mean to the institutions in Northern Ireland for participation in initiatives like ERASMUS+ and future framework programmes for research. There are also questions about mutual recognition of diplomas and qualifications, all of which have been raised in various fora. I would encourage people to think about how we might exploit this language of flexible and imaginative solutions and exploit the existence of the Good Friday Agreement. For the purposes of ERASMUS, which is pretty uncontentious, if the UK Government were not to support UK participation, could we treat the institutions or students at institutions in the North as Irish for the purposes of ERASMUS in order that all of the institutions on the island participate? Bearing in mind the emphasis that is placed on the economic prosperity of Northern Ireland for the future of the peace process, which is British Government language, could we contemplate allowing the institutions and researchers based in Northern Ireland to participate in Horizon 2020 as though they were at an Irish institution? All of the institutions on the island could become eligible. It may be that the British Government secures an arrangement where all the institutions in the UK can participate but if it does not, can we do something which is slightly different for the institutions in Northern Ireland in the spirit of the Good Friday Agreement to ensure they can participate fully, just as other institutions on the island can?

Would politics get in the way?

Professor David Phinnemore

Politics will always get in the way but equally if we have sufficient political will we can probably overcome it. We would have to use the opportunity of the language of the EU 27 and the British Government that there are particular circumstances and it is a unique case. Therefore, we should possibly respond with more flexible, specific, bespoke and unique arrangements which see it as somewhere slightly apart albeit not radically apart. Going back to the point that Dr. Hayward made, there is a broad consensus in Northern Ireland about the desire to avoid disruption. We need to bring that language back in and play to where there is agreement, rather than where there is the level of disagreement that we have.

Dr. Katy Hayward

I wish to make one point on the common travel area. Following on from Professor Phinnemore's point, in the protocol of the draft withdrawal agreement there is an emphasis upon recognising the common travel area and bilateral arrangements and narrowing bilateral arrangements. They are not defined and as was said, there is a need to define them to protect what we enjoy already but also there is a scope there, especially building on the Good Friday Agreement, for thinking imaginatively in these terms about bilateral arrangements North-South and east-west.

Professor David Phinnemore

Particularly in the context of the absence of free movement of services, if the UK does not continue to have mutual recognition of diplomas and qualifications with the EU 27, could that be pursued on a bilateral basis? At least Irish and British citizens can avail of that mutual recognition in the different jurisdictions. Seeing as Ireland is not in the Schengen area, can we pursue a number of arrangements under the common travel area that allow rights to be exercised on these islands even though the British citizens may not be able to have those rights within the context of the UK-EU relationship? We need to be exploring that.

The issue of the third option or whatever it will be called was raised at the end. I agree that there is an element of kicking the can down the road here. There is a belated recognition or realisation on the part of the British Government that it simply does not have the time to put in place a future UK-EU trade relationship addressing its red lines. It cannot do it before the UK leaves in March next year. The transition period, by broad consensus, will be insufficient. It therefore needs time and it is looking for that. It also finds itself in an exceptionally difficult political situation at the moment, such that it is very difficult to be able to sell the backstop to the DUP. If another three or four years are created, there will be a different electoral cycle and Parliament, but my concern would be that we could get distracted, assuming the EU will buy into the presumed British proposals to use the protocol for a whole-of-UK arrangement. If the future arrangement between the UK and the EU does not address what is seen to be of fundamental importance for avoiding the hard border and allowing the Good Friday Agreement to be implemented in full, then the backstop that is currently proposed needs to be available, such that the new UK-EU relationship does not remove what is required by general consensus to meet the obligations and commitments the British entered into in December last year.

I am extremely grateful to both academics for addressing the common travel area. Like Irish neutrality, it is not quite as straightforward as we would like to think. This is something this committee needs to look at in far more detail because there is an assumption that there are rights that exist between Irish citizens and UK citizens but they are not underpinned in any law. As we move forward, the common travel area will become an extremely important issue for some 30,000 people who cross the Border on a daily basis to go to work in both directions.

I mention the point made by Professor Phinnemore on the person from County Armagh holding an Irish passport who goes to Paris for medical treatment - who pays? For example, we know that if I am on holiday today in Northern Ireland and I have an accident, I am covered for medical purposes but if I am in Dundalk and have an accident and am brought by ambulance to a hospital in Newry, they will demand payment from me straight away as a private citizen. This common travel area that we constantly hear people talking about is crucial. It is a critical part of the Good Friday Agreement and a post-Brexit world. We have to allocate time at this committee to examine that in detail. I ask that we do that and perhaps Professor Phinnemore and Dr. Hayward would come back on that matter because I think it is a massive issue.

Professor David Phinnemore

It is an under-explored issue. There is scope in the protocol for the UK and Ireland to pursue the development of bilateral relations, particularly in regard to the common travel area. One way of reading the protocol is that there is an expectation and hope that some of the issues which may not be provided for in the UK-EU relationship or in the protocol in regard to Northern Ireland and the EU could be addressed, at least as far as British and Irish citizens are concerned, within the context of an enhanced common travel area.

I join with the Chairman on this, the 44th anniversary of the Dublin and Monaghan bombings, in extending my sympathies to the families and the loved ones of the bereaved in what was one of the biggest mass murders in the history of the State.

Professor Phinnemore raised several issues. The House of Commons Northern Ireland Affairs Committee has produced a report in the last six weeks entitled, "The land border between Northern Ireland and Ireland". It stated it has had no visibility of any technological solutions beyond the theoretical or aspirational that would remove the need for physical infrastructure at the Border. Am I right in saying the only way those infrastructure needs would be removed or not required in any future arrangement is for the UK to remain within the Single Market and customs union, and effectively not leave the EU, and therefore, to all intents and purposes, it would not be able to have any trading arrangements that would allow it to diverge from the current status quo in terms of the EU's arrangements with third countries?

My next question concerns the deep politicisation of the Border and the issue of a border poll which has arisen due to Brexit, and increasingly on the unionist side. Unionist commentators like Alex Kane have written that unionism can no longer ignore the issue of a border poll, given the changing demographics in Northern Ireland and the reality that, if there is a Brexit in the manner the Brexiteers are looking to achieve, it will be a hard Brexit with a hard border, and with worse economic consequences for Northern Ireland than for any other part of the UK. We have also seen Lady Sylvia Hermon talk about the fact there would be a border poll in her lifetime and, more recently, this week, the British Prime Minister said she believed the unionists would not win a border poll.

The fact it is referred to as a border poll is ironic because, although we are talking about the Border, it is a referendum on the future of Northern Ireland and the provisions of the Good Friday Agreement, not just about removing a border. While it is not an essential part of what we are discussing, it is out there and it would end the Border, which I suppose would put the witnesses out of a job in terms of talking about solutions for the Border. Some estimates from the unionist community suggest, and people I have spoken to reckon, there will be a referendum within their lifetime, some say within ten years and some within five. Dr. Paul Nolan's more recent comments about the census results in 2021 and the changing demographics would lead us to believe there will be one within this decade.

Does Dr. Phinnemore have any thoughts on that? He might like to discuss the deep politicisation of the Border which the Good Friday Agreement and membership of the EU have brought about. Obviously, however, Brexit has brought the Border into sharp focus because, ultimately, the decision on what happens on the Irish Border is what is holding back the Brexiteers. They could have their dream of leaving the EU as we would not feel any of the infrastructure at the ports, but when we can see it on an island, and when the House of Commons Northern Ireland Affairs Committee is saying there are no technological solutions available other than the aspirational, then this frictionless and seamless border can be seen as wishful thinking.

On the issue of citizenship and citizenship rights, this was something the committee looked at in the context of imaginative solutions to the issue of Brexit for a report I prepared. The citizens of Northern Cyprus are treated as EU citizens even though they are in what Turkey classifies as being Turkey. Therefore, those who were born in Northern Cyprus enjoy rights that people who are from Turkey but living in Northern Cyprus do not enjoy, even though Northern Cyprus, while theoretically part of the EU, is not within its control, aligned with its customs arrangements or in its sphere. Its citizens are treated differently and, therefore, they have access to educational opportunities and so on. Those are the kinds of possible solutions we are looking at but the difficulty is they are all practical solutions whereas the problem is political. While they would be of huge benefit to citizens in Northern Ireland, including students who after Brexit could enjoy the benefits of education through the Erasmus programme, the politicians simply will not allow it even though they could get it, given Cyprus is a great example.

I thank the witnesses for their presentations. I too wish to pay tribute to the families affected by the Dublin and Monaghan bombings and pay my deepest respects to them.

The Good Friday Agreement is probably one of the best agreements that has ever existed. It is an amazing document and it would be awful to think it would be compromised in any way. However, it is a realistic prospect that Brexit could in some way compromise it. Professor Phinnemore mentioned that it is not simply trade that will be impacted and he also mentioned human rights. He might expand on how he sees human rights being impacted. He also mentioned EU funding for services. We all know the impact of the conflict, which affected many people. I have often spoken of the intergenerational trauma and I know some funding is going into those services. How does he see those services being impacted? I believe my colleagues have touched on all the other issues.

Dr. Katy Hayward

I shall start by referring to the findings of the Northern Ireland Affairs Committee, most particularly on the impossibility of having technology that can solve the Border issue as it stands. Such technology may be possible in the future and there are certainly huge developments all the time in regard to technology for customs facilitation, and maybe we will have technology that is invisible to the human eye so people will not notice it. That is not the point. The point is that we would still have a hard border to all intents and purposes. Let us bear in mind that European integration has been primarily about enabling co-operation and movement across internal borders in as frictionless a way as possible. If the UK is taken outside of those arrangements, there is automatically a hard border. The use of technology is really just about trying to make that less obvious to people. Of course, it puts a burden on those moving goods across and, as Professor David Phinnemore mentioned, it does not address the issue of moving services in any shape or form.

I am deeply concerned that this concentration on technology is a bit of a sideshow, not least because it is mostly about trying to create an illusion for those who are most deeply affected by the Border and for whom crossing the Border is a part of everyday life. The openness of the Border is a very real achievement and has made a big difference. Research I have done, and which is ongoing, on the central Border region really brings this home all of the time, in particular with regard to how significant the Border is, not just as an economic meeting point but also, of course, as a symbolic achievement of peace.

The Senator asked whether if the UK as a whole remained in the Single Market and customs union or a customs union, it would effectively mean there would be no Brexit. It does not by any means mean Brexit in name only because the UK would lose most of the privileges and benefits it has as a member of the EU. Certainly UK citizens and UK businesses would experience the downsides of being outside the EU and having no role in decision making. What is of most relevance is the fact that the protocol is designed specifically for Northern Ireland on the grounds of, as has been specified in the joint report and the draft withdrawal agreement itself, recognition of the need to have flexible and imaginative solutions for Northern Ireland in recognition of the Good Friday Agreement and the need to avoid a hard border. It is really not there as an option for the UK to follow.

We then come to the question of the Border poll if we have an increasingly significant Border, which will be the case outside the EU. Regardless of what we have for Northern Ireland, the Border will be more significant in several ways. This is where I think we are in real danger because this is where the Good Friday Agreement is put under threat. The whole principle of the Good Friday Agreement was about avoiding zero-sum definitions of identity and interests within Northern Ireland. Crucially, it involved seeing Northern Ireland as not being a domestic concern of the UK. I would be concerned that a lot of the discourse about Brexit has framed Northern Ireland in those terms when it most certainly is not. The Good Friday Agreement said that it is not solely a domestic concern of the UK. More important, it sounds clichéd but the Border is the meeting point between the UK and Ireland. More particularly, Northern Ireland is where one sees the entanglement of the UK and Ireland in its most obvious form. If we look to the achievements of the Good Friday Agreement in terms of identities, and Northern Irish identity was mentioned earlier, it is a huge achievement that the majority of people in Northern Ireland have been saying that they are comfortable in Northern Ireland and in devolved arrangements within the UK. Some people would prefer to have a united Ireland and a small minority of people would prefer to have direct rule but the majority of people say they are comfortable with devolution in the UK context. Another important point is that 47% of people say they have neither unionist nor nationalist identities according to the Northern Ireland Life and Times Survey. The figure increases to 55% among people aged under 35. This is vitally important and we must bear it in mind if we are to see a way forward.

Where we are at the moment is really unfortunate because it is difficult to think in imaginative terms about Northern Ireland and its future. It is totally understandable that we have this sense of British versus Irish again. Hence the dispute, or apparent dispute, about the future of the Irish Border and, therefore, the sense of the British and Irish Governments disagreeing. It is into that framework that the Good Friday Agreement must come and we must try to preserve what it managed to achieve. We must, therefore, reject as contrary to the Good Friday Agreement this framing of the debate as a choice between Great Britain or Ireland because that will not be a solution. A Border poll is not an answer to anything. It does not provide an answer in that crude way just as the Brexit referendum did not really provide an answer to anything. It is much more complicated than that. The Good Friday Agreement managed to recognise the complexity of the issue and find a balance. To have a Border poll or even to try to assess what the future might be for Northern Ireland in the next five to ten years on the basis of polls around that zero-sum choice between the UK or Ireland will further undermine the centre ground. I repeat that we need that centre ground to be strong in order to see the long-term stability of the peace process. That is not to preclude a Border poll in Lady Sylvia Hermon's lifetime or in the next decade or two but given the challenges we face at the moment, we must concentrate on the centre ground and the consensus that exists between all the parties in Northern Ireland about devolution, the agreement and Brexit.

Professor David Phinnemore

I will start with the reference to Cyprus. We have to start looking - possibly again and possibly in more detail - at what arrangements exist on the fringes of the EU to find out what models and precedents we might be able to exploit. Equally, we should latch on to the principle of differentiation at the Border - that there can be creative solutions. They need not necessarily be ones that already exist. This comes back to one of the rationales behind European integration. It is about solving problems. The one thing we probably see reflected in the protocol, whether one likes or dislikes it, is the fact that there has been some creative thinking about what one could possibly do with regard to a non-member state and a part of it in terms of its future relationship with the EU.

On the specific issue of Cyprus, the practical issue is how one determines someone holding a UK passport as resident in Northern Ireland. We do not have identification cards. We do not have any way, as residents of the UK, of identifying where we reside because the passports do not have residency indicated in them, at least in terms of where someone is in the UK.

On the Good Friday Agreement and the rights dimension, I refer members to the work of colleagues, particularly Colin Harvey and Chris McCrudden, who are lawyers steeped in traditions of human rights and concerns around them and how they are implemented. They have been producing some very detailed studies. Going back to the point I made about the protocol, whereas the protocol flags the issue of rights, possibly more so than we might have anticipated originally, it raises questions about what rights we are talking about because this has not been spelled out as yet. What enforcement mechanisms will there be? It is fair enough having statements about rights but what will the mechanisms be for their enforcement? I will leave it there. There are still questions to be addressed. We may see more once the detail of the protocol comes out.

Regarding the question of trade and whether by remaining in the Single Market and customs union, the UK does not leave EU, I think in those circumstances the UK does leave the EU for the reasons mentioned by Dr. Hayward. In addition, we must recognise that the EU is far more than just participation in a customs union and the Single Market. There are whole swathes of areas of co-operation. We have barely touched upon justice and home affairs, internal security, external security, the defence dimension and the foreign policy dimension, about which the British Government has produced a lengthy paper essentially asking to opt into most of what it is trying to leave, which seems somewhat paradoxical. I think in the circumstances described, the UK would still be leaving the EU.

With regard to the question of whether the UK is basically constrained in what it can do in international trade if it stays in the customs union and Single Market, it is not fully constrained. Some interesting work has been done recently on the case of Turkey, which is in a customs union arrangement with the EU. The customs union covers goods; it does not cover services. There is plenty of scope for the British to pursue their own trade agreements in services and given how significant the service sector is to the British economy, that is probably where they are looking for latitude. I think a credible argument can be made for the UK staying in the customs union but still retaining an element of freedom to conclude its own trade agreements.

Regarding the issue of a hard border and possibly thinking pragmatically, there is an argument for looking at what capacity may exist to have controls and checks east-west or to put it differently, an increase in controls and checks east-west. This is partly about language. We could do with getting away from the language of borders because we have controls and checks between North and South and east and west.

If the UK secures a deep and comprehensive free trade area, if there is an element of regulatory alignment in respect of the movement of goods, and if the UK develops these max fac solutions for the movement of goods, the level of control east-west, or the increase, would not be overly extensive. It could be that the facilitation of movement east-west is not significantly disrupted, particularly when it is borne in mind that goods crossing those borders are already stopped in order to be permitted to get on ships. They are on ships for a certain period. There is arguably the time and space to carry out those checks unobtrusively.

We also need to consider, when thinking about potential solutions, where the burdens fall. Some interesting figures have been produced recently that indicate that the number of small traders involved in North-South trade is far greater than the number of east-west traders. A lot of the trade east-west involves large-scale companies that can probably absorb the economic costs more than many of the small traders working on very small margins across the North-South border. What we are missing is a comprehensive economic analysis of where the impacts would fall. This partly reflects the fact that so many of the economic analyses of Brexit from a UK perspective were done for the UK as whole or, quite often, for Great Britain. Therefore, we do not really have the data to draw a full conclusion on this issue, but it is something we need to explore. We need to look at the issues pragmatically and try to depoliticise them as far as possible.

I apologise for being late. It is ironic that I was speaking in the Dáil on statements on Palestine and that one of my last points concerned the need to take the Good Friday Agreement as an example of what can be achieved. We have met many delegations from both Israel and Palestine that have come over wanting to hear how the Good Friday Agreement came about. Of course, the recent events have put everything on a much longer finger.

I read the witnesses' presentation, which I found very challenging and very candid. It spells out implications that perhaps we have not been thinking about in the way we should. I thought that was very good, and I thank the witnesses for that.

I get the impression that there is much talking the talk about protecting the Good Friday Agreement, particularly on the British side, but there does not appear to be much detail on what exactly that means. We know there is very definitely a threat to the Good Friday Agreement, but then we are also as a committee considering what is yet to be implemented, particularly in respect of the legacy issues, which seem to be getting further and further away. We are conscious of this because some of us were at a very dignified ceremony on Talbot Street this morning. One of the speakers said a little progress has been made since last year, but I am in no doubt that the same things will be said this time next year and they will be no further in getting to the truth of what happened. It seems to be a wearing-down process on the part of the British Government until everyone involved in it is dead or has lost the energy. They have not lost the energy in 44 years, so I think it will take another while, but that seems to be the process. We think of the victims of the Dublin-Monaghan bombings. Babies in prams came along today because their grandparents are affected. That is how long they have been waiting. We know of the other issues, such as the event in the Widow Scallan's pub and the hooded men. Are the witnesses in any way hopeful that these aspects of the Good Friday Agreement will eventually be implemented? Yesterday, we had an exhibition upstairs of all the cross-Border work that is ongoing, particularly among young people, which was great to see. Again, we are now at a point at which we feel this is all being undermined.

I was interested in the human rights questions. I will not go back to them because it is my fault I had to go to the Chamber to speak. The EU seems to be speaking with one voice on Ireland and Ireland's interests, and Michel Barnier, certainly any time he has been here and any time one sees his speeches, seems to be very committed to this. However, could it be a case of who will blink first and that Ireland will be the party that could lose out? In the larger scale of things, we are but one country in the EU 27. Is there a danger, in the witnesses' opinion, that we could lose out eventually? At present we are not losing out, but could we eventually? I regret the vote, and I was a Eurosceptic. I did not want Ireland to enter in the first place. However, now that we are in - and while we respect the democratic vote - I think the decision in Britain is a disaster, particularly as it relates to the Good Friday Agreement and what has been achieved.

Did Ms Gildernew wish to come in as well?

Ms Michelle Gildernew

I apologise to Dr. Hayward, Professor Phinnemore and the Chairman for being extremely late and missing the witnesses' earlier contributions. I add my voice to others on the anniversary of the Dublin-Monaghan bombings. I live on the Monaghan Border. I know the implications and the impact the events had there and, like others here, I think there are major outstanding issues in the Good Friday Agreement, especially in respect of legacy issues and dealing with the past, which we are not happy with at the best of times.

I apologise if the witnesses have already been asked about this and covered it but I wish to focus primarily on the human rights aspects of Brexit and the implications for the Good Friday Agreement. Martina Anderson, MEP, commissioned a number of reports that were carried out by Doughty Street Chambers in London, which provided independent legal advice. One of the reports concerned the human rights elements of Brexit and the ways in which they would impact the Good Friday Agreement. I see the witnesses nodding; presumably, they are aware of the report and have read it. There are massive human rights implications for us all. I live right on the Border. I am raising a family there. I know what it was like crossing the Border daily. I did so for much of my life and I fear things will very quickly go back to the way they were. Any kind of infrastructure on the Border will lead to problems. Therefore, for us, a special solution for the North of Ireland that ensures we do not see a hardening of the Border is extremely important.

Yesterday, the entire Sinn Féin MP team met with Karen Bradley. We have talked about unionists being in breach of the Good Friday Agreement and ignoring elements of it. We put it to Karen Bradley yesterday that the British Government is now in the exact same position given its refusal to hold a meeting of the British-Irish Intergovernmental Conference. In the absence of an Executive in the North, a meeting of the conference would give political cover to some of those outstanding decisions that we need to make. I would like to hear the witnesses' views on this. Dr. Hayward talked about many people being comfortable with being in a devolved situation in the North of Ireland. Once Brexit came about, I think that changed forever. Eleven of the 18 constituencies voted to remain in Europe. I think that if people were given the choice - this is back to the Border poll - between remaining part of the British union and remaining part of the European Union, the majority in the North of Ireland, having already voted in a majority against Brexit, would choose to remain within the European Union. This is a very fundamental question. We put it to Karen Bradley yesterday and asked her again her threshold for having a Border poll. We have received a number of extremely unsatisfactory answers, and I would like to hear the witnesses' views on what they think the threshold is or what they are using as a parameter.

Professor David Phinnemore

I will take the first few questions and comments about the Good Friday Agreement being ignored, the implementation of various aspects still to be realised and whether there is any optimism around. One thing that strikes me in British politics is, looking at the politicians in Westminster today, how many of them were around at the time the Good Friday Agreement was concluded. How many of them were actively involved in politics in the years leading up to the Good Friday Agreement? We have had a generational shift, and in some respects Brexit has forced a significant swathe of British politicians to re-engage with the Good Friday Agreement. They are being forced, as a consequence of Brexit, to look at what the Good Friday Agreement is, what it entails and what it means to people in Northern Ireland, on this island, on these islands.

If there is any note of optimism, it is that we are talking about it again, and not just those of us who live in the North. It is being discussed and debated more in London. There is no getting away from the statements that the British Government, particularly Theresa May, has made on fully upholding the Belfast Agreement. She obviously does not share the language of its past, but the sentiment is there. Those are not just statements issued in Parliament or on the steps of 10 Downing Street. They are part of communiqués at EU level, and the EU is very mindful of its desire to ensure that the Good Friday Agreement continues to be implemented.

In some senses, Brexit has given the Good Friday Agreement a far bigger profile. That said, it has also exposed the fact that there are significant elements that have not been addressed. The assumption underpinning the desire to support the Good Friday Agreement is that much of the potential of the agreement is still as yet unfulfilled. In trying to support the Agreement in the context of the Brexit process and future arrangements, the EU is trying to ensure that it is not only maintaining what has already been achieved, but also allowing the potential to be realised. It is as much forward-looking as it is backward-looking. If there is optimism, it is in that space.

A very important question was asked about the EU talking with one voice, and whether it is the strategy of some Brexiteers that at the 11th hour the EU will ditch Dublin and make the deal with London. Nine months ago, I think I would have been 50:50 on that question. I probably follow EU politics far more than is good for my health, and I note that the language of the EU has gotten stronger and stronger over time. I refer to European Council President Donald Tusk's statement when he was here: "Ireland first." Coming from the President of the European Council, who is meant to reflect the voices of the 27 in this, that is very important.

We also have to remember that the EU's position on Brexit and the Irish dimension is not simply a reflection of the 26 supporting a fellow member state that, through no fault of its own, finds itself in a position where it is likely to suffer economically and have to deal with a variety of political consequences. The EU has an interest in Northern Ireland and the peace process. Whether one agrees or not, it sees itself as having played a role, through the models of European integration inspiring some of the developments in the peace process or through the funding and other forms of assistance that it has given to Northern Ireland. It wants to be able to continue to say that this is its doing, an example of European integration. Whether one agrees with that or not does not matter. The fact is that is partly informing the EU's thinking.

The other dimension which I think we need to be aware of, which is coming through in some of the statements by Mr. Michel Barnier, is that this is not simply about the 26 supporting Ireland. This is about the 26 other member states supporting a small member state in the face of significant external challenges from a large soon-to-be-non-member state. In part, this is about sending signals to some of the other smaller member states around the EU who on their own could not withstand the challenges imposed by a neighbour, or would struggle to do so. There is a strong focus on Ireland, but there are other dimensions here. With those in mind, we can make a credible argument that in all likelihood, the 26 will remain behind Ireland. The EU's credibility, given the language it has issued around this, is arguably at stake. It is going to lose credibility in the eyes of a lot of its smaller member states if it does not support Ireland after all the statements that it has very publicly made. As such, I am very much beyond that 50:50 estimation now.

Dr. Katy Hayward

I wish to follow on that point specifically. The EU support for Ireland is very much in the context of the Brexit negotiations, and of course the near-certainty that Ireland will be voting on the future UK-EU trade deal. Ireland may well have a veto on that, so it will continue to be of interest. After that though, we need to consider that Ireland's position will be very different. The EU itself will be different, no doubt, and it is important that Ireland considers most particularly what it wants to protect regarding the Border, the Good Friday Agreement and Northern Ireland. I want to pick up on Senator Black's question about EU programmes, because it touches on a bigger question regarding what needs to be a priority as Brexit unfolds. Of course, all the parties in Northern Ireland want to continue to benefit from EU programmes and funding. It has already been stated in the draft protocol that peace funding will continue. There is also the potential for INTERREG funding, which is very unusual. In fact it is unknown for INTERREG funding to go to non-member states in this way.

In regard to the Good Friday Agreement, we need to be clear about what we would like to continue. What would Northern Ireland benefit by continuing to have access to, maybe in a way that the rest of the UK does not? On that point, what about the British-Irish Council, the British-Irish Intergovernmental Conference and the North-South Ministerial Council? What kind of arrangements need to be protected and preserved, and what in these institutions could be enhanced to be able to manage the effects of Brexit? What about the potential for the North/South Consultative Forum now, given that there are most likely to be bespoke arrangements for Northern Ireland? They will have a particular importance if the UK is outside of the EU and Northern Ireland has to manage alignment with the rest of Ireland and the EU. These will raise critical governance challenges, and the institutions established by the Good Friday Agreement could play a vital part.

The threshold question is a fascinating one. As we have seen from the Brexit referendum, a majority vote does not guarantee a stable, peaceful outcome. It does not resolve a question or an issue in and of itself. Thinking longer term, what would be the outcome that would be most conducive to peace and stability in the counties of Northern Ireland, and indeed on the island of Ireland? It is not the case that a majority vote will resolve everything. There are bigger questions for Ireland itself with regard to political representation and recognition of the diversity of identities in Northern Ireland. Although it is perfectly understandable that the question of the Border has come to the fore, subsuming all these other complexities, nuances and identities into that one particular issue is not actually addressing the real challenges that face people in Northern Ireland, in the Irish Border region or on the island of Ireland with regard to Brexit. I understand why it is back on the table, but the concentration on a majority vote will actually create other issues that need to be addressed in the longer term.

The issue of legacy points to the fact that there is so much that has not yet been resolved, even after 20 years. We need to handle it very cautiously.

Professor David Phinnemore

To come back to the issue of rights, we made a number of comments on this earlier and referred to the work of some of our colleagues at Queen's University. We also referred to the fact that the rights dimension is flagged in the protocol. My understanding from six to nine months ago was that this may not have been something that the EU was willing to engage with but it is in the protocol now and it would be very difficult to take it out. The question is how it will be interpreted. One thing we need to be mindful of, and this goes beyond Brexit but possibly reflects its spirit, is the UK's continued participation in the European Convention on Human Rights, which is obviously not affected by the UK's withdrawal from the European Union but has been a prominent goal of a number of Brexiteers over the years and could well come to the fore again. That will be a greater challenge on the rights dimension in terms of the operation of the Good Friday Agreement than Brexit. I would not want us to lose sight of the dynamics within British politics around that question because that would have significant implications.

I would have asked Professor Phinnemore about the Tory policy on the idea of withdrawing from the Convention on Human Rights. One of the areas Professor Phinnemore touched on was the more strident language coming from Europe. Does this arise from frustration and the fact that the British seem to put the position forward and then withdraw from it? Is that why the European Commission is becoming more strident in its language or is it out of frustration that the British Government would appear to agree to one thing and then there is another person on the front page of the newspapers the following day disagreeing with that position? Does Professor Phinnemore see that as part of the negotiations?

He referred to the North-South Ministerial Council being fit for purpose post Brexit, and this was a recommendation in the committee's report published last June, but in the absence of the Executive, is Professor Phinnemore aware of any discussions to take this recommendation forward? Professor Phinnemore stressed the importance of the restoration of devolution and we would all agree that must be a priority, but he states that it was the first priority of the British Government. Again, if that is the British Government's first priority, I do not see anything being done to support it, for example calling the parties in. Is the timing wrong with court cases and other things? It does not appear to be a priority at present. It is articulated as a priority but it does not appear to be so.

Professor Phinnemore referred to the Erasmus student exchange programme. Is there a political appetite for it? Many believe there are solutions to soften the impact of Brexit, however the solutions appear not to be acceptable to the Tory Brexiteers and to the DUP.

Dr. Hayward stressed the importance of all parties being engaged in the process, and not just Sinn Féin and the DUP. Many of the other parties were in opposition and had a view on how the devolved administration should proceed.

The DUP and the Tories think that Brexit will generate new trading agreements. Some are adamant that this is the way forward, that there are positives, but we have not heard them. Who will enumerate the advantages of Brexit? However when one focuses on the the level of productivity in the North compared to the rest of the world, the productivity in the South is 60% higher. Productivity in the North is 15% lower than in other regions of Britain, Wales and Scotland. Do the witnesses see positive outcomes for the North, which we on this side of the Border do not see?

In regard to the Border, it has been stated that with the UK leaving the customs union, the hardening of the Irish Border becomes inevitable. The European Commission has repeatedly stated its intention of avoiding a hard border, and the British Government has also given that commitment but how in the witness's view can this happen? Are there alternatives for Ireland?

Some of the ideas raised today were challenging, including the idea of Erasmus students coming to Ireland and the fact that people from Britain who are living in the North will face an impact. I certainly have not heard that discussed.

Professor David Phinnemore

There are a great many more questions.

In regard to Erasmus, and all students on the island of Ireland being eligible to participate, politically that could be very difficult to achieve. Let us think of the sort of processes we are in at the moment. Brexit consists of a whole variety of different processes, some of them running concurrently and some of them sequential on one another. At the moment, the issue is about securing Brexit. For Brexiteers, it is about getting the UK out of the EU. I would say a lot of the rhetoric or the position of the DUP is about fulfilling the mandate given to the British Government to take the United Kingdom out of the EU. That is what the referendum result said; Prime Minister Theresa May said that Brexit is Brexit and she is obviously committed to delivering on that. Fulfilling that mandate and getting out of the EU is the key objective at present.

We then move into a phase where the UK is going to secure what it hopes will be a possible deal for the United Kingdom. When we move into that phase and we change the rhetoric about getting the best possible deal from the EU in the future, and if that deal involves a few extras for Northern Ireland which is still part of the United Kingdom and outside the EU, then one may be able to get support from the DUP. If one can draw on the language, which exists around uniqueness, flexibility and imagination, it is incumbent on every politician to seize what could be advantageous to oneself and the electorates on the fundamental issue of exiting the EU. One could say that is a naive academic talking, but I think the context shifts once the UK is out of the EU and we may see a slightly different position being adopted then.

The question was raised about levels of frustration on the EU side. I think it is fair to say, when one looks at the body language of some of the politicians, that there is an element of frustration there, which is driven by at least two things - the absence of clarity from the British who having laid down some very clear red lines arguably entered into commitments which simply cannot be squared with those red lines; and then being seen to challenge, if not reject, some of what has been agreed. There is an expectation and a promise from the UK that it will come up with ideas.

These have not been forthcoming. When one is waiting for them and that wait gets longer and longer that frustration begins to show.

There is another dimension, namely, that these are not normal negotiations in at least two respects. This is not a state-to-state negotiation; rather, it is a negotiation between a state and the European Union. Prime Minister May will not negotiate with the member states; she is negotiating with an institution representing the member states, that is, the Commission. The other dimension which is different is that this is time-bound and part of the legal process which required it to be completed within two years, a two-year framework which has been reinforced by Theresa May's insistence that the UK is leaving at the end of that two-year period and ruling out the idea of any extension. In that regard, any officials charged with negotiating the arrangements for an orderly withdrawal of the United Kingdom from the EU are going to be extremely frustrated as the clock ticks down and it becomes increasingly obvious that the multifaceted and highly complex challenges involved have simply not been sufficiently analysed by certain sections of the British political establishment such that it has clarity in terms of what it wants in a context where it actually appreciates what is possible.

The frustration is understandable, particularly when some solutions have been put forward. One of the issues regarding the backstop protocol is that, fundamentally, nobody wants it. People want an arrangement with the UK which negates the need for the protocol, but that does not seem to be part of the discourse at the moment. It is as though the EU is trying to impose a protocol on the UK. The EU has only put it there as a backstop and its plan is that it will not be used. In a context where there is no clarity coming from the British it increases the likelihood of it having to be used.

I wish to reinforce what Dr. Hayward said about the institutions in the Good Friday Agreement. There is an explicit assumption that the devolved institutions will be up and running in order to implement any particular arrangements for Northern Ireland. Implicit in the support for the Good Friday Agreement in all its parts is the view that the North-South and, potentially, the east-west bodies will play a role. They have a future, but they have to be up and running in order to meet the expectations which a good number of people have of them.

Dr. Katy Hayward

To follow on from that point, it is important that devolution is up and running again as soon as possible. It is worth pointing out that at this critically important time in the UK and Ireland citizens in Northern Ireland are not represented by MLAs and the devolved assembly. There is no Executive speaking on their behalf at the joint ministerial committees or the UK Government. Only ten DUP MPs sit in Westminster. This is a fundamental and deeply concerning lack of representation for people in Northern Ireland.

On whether other parties in Northern Ireland would go into a sort of working opposition, that is unlikely to happen. The need to build consensus and a shared position in regard to Brexit would possibly override many of the differences in that regard. It is worth reiterating the point that we need devolution to be up and running in order for the North-South Ministerial Council to function as it should. The British-Irish Council is similar.

We have not seen concrete evidence of opportunities arising from Brexit. In terms of preparation for Brexit and the effect it is already having in Northern Ireland and the Border counties, it is only negative so far, not just in terms of anticipating economic differences and barriers but also in political and symbolic terms. There are very real anxieties, some of which might be exaggerated, about passport controls and the like. I would be worried that the negative effects of Brexit are already quite apparent, particularly in the Border region and the risk of back-to-back development returning again.

In terms of preparation in the southern Border counties, one would be cautious and move away from the UK and, as a result, away from the North towards Dublin and the rest of the UK. In the North, the advice about preparing would be about looking further afield beyond the EU. This has its most profound effect along the Border. There is a certain irony here. This is a critical juncture, not just in terms of the Brexit negotiations and all of the focus on the Border at that level in Brussels but also because every day it is having a negative effect within Northern Ireland and the Border region, which has implications for the island of Ireland more generally.

Professor David Phinnemore

I will come back on one issue. We were asked about creativity and flexibility. If we look at what has been proposed in the protocol, we can see some levels of flexibility and creativity which I did not anticipate emerging. One example is Northern Ireland remaining in the customs territory of the European Union. It is almost unprecedented, certainly as far as the EU is concerned, to have part of a non-member state in the EU's trade regime. It is also almost unprecedented in an international context.

An issue which we have not touched on today and which, unfortunately, has not featured much in the British debate about Brexit is that it is not simply about what can be achieved in terms of what the UK wants and can deliver. Rather, they are both constrained by international regimes, notably the World Trade Organization, WTO, and international trade rules. The EU and UK cannot define exactly what sort of customs union arrangement they might have because WTO laws require that it covers substantially all goods. The fact that the EU is willing to consider Northern Ireland remaining in the customs territory is a departure, with the exception of Hong Kong, from established practice in the WTO.

We also see an element of creativity and flexibility in that in the protocol the assumption is that Northern Ireland, if the protocol came into operation, would have free trade in agricultural goods with the EU. I am not aware of any non-member state of significant size which has free trade in agricultural goods with EU. Certainly there is no sub-national territory of a non-member state which is afforded that privilege. Yet the EU, through the protocol and the maintenance of all-island supply chains in what is an increasingly integrated agricultural market, is willing to essentially extend the Single Market in agricultural goods to include all of the island of Ireland. We can see there is flexibility there.

Part of the issue for the British Government is that the language of flexibility and imagination is reserved for the Irish dimension, that is, this island. That has been repeated on a number of occasions by Michel Barnier.

There is a willingness to be flexible and imaginative, but it is for a particular geographical part of the United Kingdom.

Can it be seen as a positive, rather than a threat?

Professor David Phinnemore

It will be seen by some as a threat. It is wrong to say the European Union is not coming up with flexible and imaginative solutions because there are matters in the protocol which we would not have anticipated, given all of the historical precedents.

Dr. Katy Hayward

It is important to note that it intends to preserve continuity to a large degree, but actually it raises many new questions and challenges for the North and the island of Ireland. For example, if one were to have a single agricultural regime, what about the CAP? If Northern Ireland farmers were not in receipt of CAP payments, they would be at a considerable disadvantage. Also, even the question of the customs territory would raise new challenges for the Revenue Commissioners to work together with HMRC UK Border Force in enforcing it. New levels of co-operation will be required after Brexit, no matter what the particularities of the outcome are.

I thank Dr. Hayward and Professor Phinnemore for their submission which we all found informative. I apologise that members had to come and go as there are other meetings taking place. Some of our members are also attending a meeting next door. If Dr. Hayward or Professor Phinnemore wish to expand on some of their ideas, the committee would appreciate any written submission they might wish to make. I thank them for their time and energy which are really appreciated.

The joint committee adjourned at 4.15 p.m. until 2.15 p.m. on Thursday, 31 May 2018.