Professor Christopher McCrudden:

I thank the Chairman and Senators. My name is Christopher McCrudden. I am Professor of Human Rights and Equality Law at Queen's University, Belfast and William W. Cook Global Professor of Law at the University of Michigan Law School. Until 2011, I was Professor of Human Rights at Oxford University and I am a fellow of the British Academy. I am also a practising barrister at both the London and Belfast bars and in that capacity, I was junior counsel in one of the cases from Northern Ireland that was heard by the UK Supreme Court in December concerning Brexit. If there are any questions on that litigation I will be happy to try to answer them but I will not be discussing that case specifically unless asked to do so.

I thank the Chairman for the invitation to give evidence to this Seanad committee. I am honoured to have been invited. It is my first time and I hope it may not be the last. I congratulate the Chairman on his initiative in holding evidence sessions regarding the implications of Brexit for Northern Ireland. I am conscious as the Chairman said that it has been a busy day. I shall not therefore make a lengthy statement.

I wish to make seven brief points by way of introduction. First, I believed before the referendum - nothing that I have seen since has led me to change my mind - that Brexit is likely to be a disaster for Northern Ireland if the adverse consequences are not substantially mitigated.

I congratulate this committee for holding evidence sessions because it wants to focus precisely on the mitigation of adverse consequences. I now know pretty much what those problems are, not least in areas that affect me personally such as higher education. We are sure to be hit from time to time with the discovery of yet another unintended consequence. At least the broad outlines of what the problems will be are now clear. In broad terms, there is a significant degree of consensus among the parties in Northern Ireland, and between Dublin and London, about the wish list relating to Northern Ireland that should be presented in the forthcoming negotiations. I think that will become even clearer after the general election when the agreement that appeared to be emerging between the major parties in Northern Ireland is published. The basic aim of policy for the future seems to be to preserve as much of the status quoas possible.

There now appears to be broad consensus among the EU 27 - this is also reflected in the British Government's negotiating position - that there are unique circumstances that apply to Northern Ireland. I think the inclusion of this language was a major achievement of Irish diplomacy. It really does not concern me whether the phrase that is used is "special relationship", "special status" or "unique circumstances". I realise that there are political consequences, but I do not think the exact phrase matters all that much in broad terms. The committee will be aware of the important and critical distinction between a special status within the EU and a special status more broadly and not necessarily within the EU. The UK Government appears to have ruled out the first of these options but not the second. Of course, that may change either way.

I suggest we need to move beyond identifying problems, beyond wish lists that seek to preserve the status quoand beyond stressing the unique circumstances of Northern Ireland. We need to begin to develop a detailed plan regarding how to achieve as much as possible of that wish list. I hope the committee will be doing this. Any agreement must be capable of surviving scrutiny by, for example, the European Court of Justice. From what I can see, there is no such agreed plan at the moment. It is not evident in Dublin, Belfast, Brussels, Berlin or London. Not only does there not appear to be an agreed plan in any of the relevant official circles, there does not even appear to be the basic outline of a plan with regard to Northern Ireland, which is worse. The various wish lists that are floating around are just that. I do not think we have the luxury of saying "Sure it will be grand".

I have been working with some of my colleagues at Queen's University - Professor David Phinnemore, Dr. Lee McGowan and Professor Dagmar Schiek - as well as with Mr. John Temple Lang, who is a former Commission official, and Mr. Brian Doherty, a former legal adviser to the Northern Ireland Government, to try to focus minds by producing an outline of a plan. This has now been published as a pamphlet by the European Policy Centre in Brussels. I would be happy to supply a copy to the clerk of the committee for distribution to Senators if they so wish. I hope we can talk more about the detail of this plan. I will provide a broad outline of it.

Our plan would involve Northern Ireland joining a European Economic Area, EEA, agreement together with Norway, Liechtenstein and Iceland. This would address some critically important issues: notably, trade in goods and services, membership of the Single Market, free movement of people and the preservation of the single electricity market. The major advantage of the EEA option for Northern Ireland, apart from addressing some of the major substantive issues I have just mentioned, is that it is a known quantity and therefore would not involve a renegotiation of everything that would be necessary to develop a single market, etc. It would not be a panacea. It would not cover the issues of customs, agriculture and fisheries. Essentially, we are suggesting that an EEA+ option, which would supplement the EEA agreement with a series of additional agreements in areas not specifically covered by the EEA, should be adopted. An additional useful aspect of the EEA is that a significant discussion has to take place about the dispute settlement mechanisms to be included in the agreement that will result from the forthcoming negotiations. The UK appears to have set its face against any involvement in the European Court of Justice, at least for now. We will have to see whether that red line is maintained. That seems to be the position. The EEA agreement uses the EFTA dispute settlement mechanisms. The EFTA court, rather than the European Court of Justice, would be involved.

The final point I would like to make is a personal position. I suspect that the major sticking point for any proposal of this kind will be in London, rather than in Brussels. The EEA+ option would meet several of the UK's apparent negotiating red lines. No part of the UK would remain in the EU, would be subject to ever-closer union or would come under the jurisdiction of the European Court of Justice after the agreement came into effect. However, it would seem to involve a need for some east-west checks, particularly in terms of the movement of goods and people between the island of Ireland, which would be within a single market, and the rest of the United Kingdom. It would seem to involve some east-west checks while significantly reducing North-South barriers. The UK Government has specifically rejected the proposal that Scotland would join the EEA on the grounds that it would interfere with the UK's single market. Suddenly, the single market appears to be an attractive option, at least within the UK. Unfortunately, there are appears to be a stark choice between North-South checks and east-west checks. This choice will be based not solely on economics but also on questions of identity.