Professor Christopher McCrudden:

I thank the Senators for their thoughtful and testing questions. I will go through them sequentially.

Senator McDowell raised four issues. The first was the modalities of how we would reach an agreement, and the structure and form of such an agreement. I tend to agree with him that some form of treaty-based, specific agreement for the island of Ireland and its relations with Northern Ireland and with the EU would be a sensible way forward. I am perhaps less immediately optimistic than the Senator that this would escape consideration by the court of justice, not least because, as he will have seen, in the last few weeks the court of justice has reviewed a trade agreement and has found part of it to be in violation. Prior to that, the court of justice had been mightily exercised about retaining jurisdiction over the interpretation of EU law, which of course would require jurisdiction over any treaty of that kind. I am with the Senator half way, in that I agree it would be a necessary mechanism, but I am not convinced it would escape the court of justice.

Senator McDowell's second point was about the common travel area, which he does not see as a major problem. The common travel area as I understand it dates from about 1923. It has gone through various forms and iterations. Its most recent iteration is a non-legally binding statement that is published, unlike most of the previous common travel area agreements. I am stating the obvious in saying that each of those agreements took place in a context in which both the United Kingdom and Ireland were outside the EU and therefore EU law did not apply, or they were both inside the EU and thus both bound by its law. The unique circumstance is now possibly of the common travel area seeking to operate with one party in the EU and bound by EU rules while the other is not. We do not have a precedent for that.

I am glad that the Senator is optimistic but I am less immediately convinced that the common travel area can resolve the problems, not least because we do not really have a full view of what the complexities of those problems might be. For example, the free movement of persons may or may not be problematic in terms of requiring checks. If there is a substantial hard Brexit view that there has to be a hard Border, that might involve individual checks of everybody crossing that Border into the United Kingdom. We know of course that the common travel area in the past, from 1923, did envisage just those kinds of checks in certain circumstances. Saying that the common travel area is the thing to go for camouflages the fact that in the past, the common travel area has covered a multitude of different types of arrangements. What I am suggesting we should go for is the current iteration of the common travel area. Whether that is consistent with EU law remains to be seen.

I am spending more time on these questions than the Chairman probably wants. The third question from Senator McDowell was about goods and the flexibility that is envisaged in terms of east-west issues. I agree that most of these issues can be negotiated on a tailor-made basis. The problem is not a principled issue but a question of the modalities. The problem is that negotiating everything of this kind from scratch - trade in goods, trade in services, free movement, the common electricity market and so on is the stuff of ten years of negotiations at least. One of the potential benefits of the off-the-peg EEA model is that while it does not cover many of the questions that I will go on to consider like agriculture, it does get some issues off the table, which then allows us to build on a relatively secure basis. There is real tension between getting the ideal solution, as it were, ten years on, and getting something now on which we can build, that at least gets something onto the agenda and securely pinned down. We do not have to renegotiate all the details of the EEA agreement. All of that has been done. It is a known product.

Senator McDowell's fourth point was on the Conservative Party ideology. He will be surprised to hear that I am not in a position to interpret Conservative Party ideology. I will say, although I have promised not to talk about the Brexit case in the British Supreme Court, two things are very apparent in that decision. This is not in respect of the ideology of the Conservative Party but of a much broader constitutional ideology. One is that parliamentary sovereignty rules.

All of the apparent understandings that some of us had that there was a movement beyond parliamentary sovereignty have now collapsed. This has consequences for the future. If we want to shift out of the current constitutional mode in the United Kingdom context, that will have to be absolutely hammered home and we cannot rely on flexibility in that regard.

The second is that the United Kingdom is a unitary state and so the argument that my clients wanted us to put with regard to the idea that there is a constitutional pluralism, as it were, within the United Kingdom went nowhere. It was a unitary state governed by parliamentary sovereignty. This comes back to the point about antipathy to special arrangements. We are undergoing essentially a constitutional negotiation - that is not much of an exaggeration - in the UK. I do not know how well that will go but the position in London is generally that the UK is a unitary state and, therefore, anything that breaches that, particularly if it has economic effects like breaching the so-called single UK market, will be viewed very hostilely.

I thank Senator Craughwell for his comments. I believe the percentage who voted to remain in Northern Ireland was 53%. On the point about democracy, to be theoretical and academic, that depends on where the demos is. The Senator will know as well as I do that the demos in Northern Ireland is whether it is part of the United Kingdom or not. That is the critical question that divides Northern Ireland. The problem that Brexit has brought to the fore is that the relaxation in notions of national sovereignty and national identity, the sense that there could be shared and different understandings of those issues, is being threatened. Unfortunately, identity, sovereignty and nationality have come rushing back. That is the problem because we return to the question we thought we had resolved with the Good Friday Agreement as to what exactly the demos is in the Northern Irish context.

More generally, in terms of two passports, I must declare an interest as I carry both a British and an Irish passport. I am, therefore, in exactly the position the Senator mentioned. Not only that but I need to declare an interest again as both my children have British and Irish passports, although they were born in Oxford. Where does this leave us? It leaves us in a situation where the position in Northern Ireland is a particular example of the larger negotiations that will have to take place about how the UK treats EU citizens and how the EU treats British citizens, particularly the former. The issue is that it is no longer just a question of how the UK treats Polish plumbers but how it treats 1.5 million people in Northern Ireland who are, as the Senator correctly noted, potentially all EU citizens. This begins to bring a particular dimension to the general problem of how one deals with EU citizens. What this means is that there are two outstanding questions, as has been mentioned, that are in the preliminary part of the negotiations. One of these is Ireland, while the other is the treatment of EU citizens. The EU citizens' point also has an Irish dimension. Notwithstanding whether the penny has fully dropped, the Irish dimension is central to two of the three preliminary questions that must be settled before the negotiations can proceed to trade.

Senator Paul Daly raised the issue of agriculture. The European Economic Area agreement does not cover agriculture. While it covers some of the goods aspects of agriculture, the general issues the Senator raises are not covered. It is clear, therefore, that the EEA agreement would not deal with the issues described. It would not cause an extra problem with regard to such issues, however. In other words, while there would have to be a separate agreement with regard to agriculture, there is no reason this will not be compatible with the EEA agreement. Other states in the EEA have negotiated separate agricultural deals so at least the EEA option does not create more problems in the area of agriculture.

As to whether the agriculture issue is a can of worms, the answer is "Yes" and it would be misleading of me to indicate otherwise. Either last week or the week before, the leader of French farmers expressed some of the opposition to the notion that Northern Ireland could be the route for cheap British food imports into the European Union and they are resisting this for that reason. I fully agree with the Senator that this opens a can of worms. It also raises a funding issue as to how far the British Treasury will provide subventions that will be equivalent to the EU funding that will be lost. As the Senator will be aware, the UK will provide this funding temporarily but there is no guarantee that will be the case subsequently.

Senator Reilly asked how optimistic I was. On a day as beautiful as today, how could one fail to be optimistic? On wetter days in Strangford, as I look out over the harbour, I think it is very difficult in two respects. First, it is not clear that an agreement will be reached, in other words, we may not get past the first three initial issues. Everything seems to change each time I disembark from a flight. I was in Berlin in recent days and I visited London a few days prior to that. As to whether there is general optimism, the answer is "No". As to whether it is more than 50% likely that there will be an agreement on these issues, I am doubtful about that. On that question, the problem is that the outlines of what everybody wants are clear. There should be no hard Border and free movement and a single market on the island of Ireland should continue, etc. The EEA is one of the relatively few ways in which these major objectives can be achieved. It is as simple as that. We have a dilemma, therefore, because some aspects of the EEA agreement will not be palatable. On the other hand, if people want to achieve what they say they want to achieve, this is the way to do it. I apologise as I realise that does not answer the question about optimism.

Senator Reilly also asked what we were doing to sell the idea of the European Economic Agreement. Academics generally are not in the business of selling ideas. We are presenting an idea for consideration in various places. I presented it in various forums in London and I know John Temple Lang has presented it in various forums in Dublin. As I stated, I attended meetings in Berlin in recent days but I have no idea whether the idea is being picked up. It is being talked about and it is coming out in various think tank reports. The Guardianreferred to it last week when it noted the idea was on the table. Beyond that, however, I cannot say much.

On Senator Mark Daly's question about how enthusiastic Brussels is, the thrust of the question, which I take as being put in good spirit, is that this creates a problem because Belfast wins. Coming from Belfast, that would be an entirely acceptable result as far as I am concerned.