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 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 un-implemented; 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 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.