Mr. Les Allamby:

I will try to answer the questions in the order they were asked. Senator Craughwell asked if the common travel area could become entangled in the courts. That is always possible. I am not a great fan of trying to fight the legal status of something in the first place. There are principles of administrative law where one could say that if both Governments changed their minds on something, say cross-border healthcare co-operation, there would be a legitimate expectation or administrative law arguments. However, if either the Irish or UK Government unilaterally enacted something to get out of arrangements in the common travel area, there would be political fallout. Would the courts give the common travel area and a memorandum of understanding greater weight than if parliament, either the Dáil or Westminster, passed some legislation to make it clear it was getting out of some or all those arrangements? I am doubtful one would find a court that would take the memorandum of understanding above legislation. That is why it is important to have a very secure legal underpinning and a very clear understanding of where things are.

There was a question of whether the European Court of Justice could play a role. It is playing an interesting role. I would nuance this by saying that the ECJ cannot act unilaterally, it cannot decide to make decisions, cases must be referred to it under the process. One example would be the Irish courts on the European arrest warrant and whether it can be applied to the UK and Poland, given different developments there. Those decisions from the ECJ were interesting because they said that while both were full member states that there is no reason to question the bona fides of a European arrest warrant. However, one might look very closely at the arrangements that the UK will have when it leaves the EU.

They left the door open to say that while the UK is in the EU, it is expected to abide by all of those rules and, therefore, the European arrest warrant should carry on as now. After that it will depend on what those arrangements are. They have given a hint but they are very restricted in terms of what they can do because it is about questions that are asked. I am with Professor Harvey on reopening the Good Friday Agreement. I would like to see the completion of the existing agreement. When terms like "review" are used, it often is interpreted as unpicking what has been achieved by the agreement. I would like to see it completed.

In response to Senator Black, there is a democratic deficit in the issue of voting rights. Professor Harvey is again quite right that this is not an EU-led issue. It is a matter for the Irish Government as to whether its citizens abroad or elsewhere on this island are entitled to vote in elections. It is not dictated by the European Union. Spain is a good example; its nationals abroad can vote. It is in the hands of the Government.

In response to Senator Conway-Walsh's question about the Human Rights Act and whether the Irish Government will have any influence, I think it will. My understanding of where things are at the moment with the Human Rights Act is that the UK Government has said it will do nothing until it has completed leaving the EU. My fear, to be candid, is that the matter will then become a political football rather than being a question of the merits of the Human Rights Act. It may be based on politics rather than good policy or legislative or rights-based reasons for reforming the Act. Where I think the Irish Government has a role is that in the Good Friday Agreement it was quite clear that maintaining convention rights was core. The bill of rights was to be a convention rights-plus approach. The Irish Government was tasked with incorporating the convention rights into its own law, which it did. At the time the Good Friday Agreement was enacted the Human Rights Act was not in place but the UK Government had committed to bringing it in. Any attempt to dilute the Human Rights Act seems to me to be germane to the Good Friday Agreement. The Irish Government, therefore, has a perfectly legitimate reason to get involved in those discussions. The Government made some representations in the earlier stages when there were far greater concerns about getting out of the Council of Europe and so on, which seem now to have receded. The future of the Human Rights Act is a perfectly legitimate issue for the Government as the co-guarantor of the Good Friday Agreement.

On the standing of the international treaty, it was considered to an extent in Supreme Court decisions in respect of after we leave and Brexit challenges. At the moment, as I understand the state of law, it is difficult to see how one can judicially apply the Good Friday Agreement effectively. That may change with Ms de Souza's case. I welcome the fact that we will look at it again in those circumstances. We must never underestimate how important an international treaty is. My experience on the international stage at the moment, when one engages with the UK Government, is that its people are very cognisant of their place on the global stage. They see the UK still as a global player and they see themselves as a power for good in human rights and equality terms. They do not like having a light shone on their own back yard if they turn out to have their own problems and difficulties. In terms of recognising international treaties and applying them properly, we must never underestimate the importance of being able to persuade the UK Government that if it wants to stay on the international stage as an exemplar of human rights and equality, that always begins at home. There are cards to play that are very important to the UK Government and this should not be underestimated.

As to what this committee could do, I am timorous about responding as it is a matter for the committee. Senator Ó Donnghaile raised a couple of issues. If this committee was saying something positive about a need for a bill of rights in the current circumstances, it would be welcome. In the short term, the suggestion in our paper about copper-fastening citizenship rights in domestic UK law, or at least a recognition of the UK Government's position when it responded to a bill of rights would be important. There is an umbilical cord whereby we can say this starts with the Good Friday Agreement and the response that was made to the advice given to the Commission. Finding a way of dealing with that through a bill of rights or in some other way would be a very welcome recognition. The review is still important, whatever the UK Government is doing. It is disappointing and shows clearly that the underlying issues, including Ms de Souza's case, need addressing. Whatever the UK Government comes up with, committees elsewhere among the co-guarantors of the Good Friday Agreement will look closely at those arrangements and what changes, if any, are made. To measure them against the Good Friday Agreement would be very useful indeed. I would not underestimate some of the valuable things the committee can do within its purview, although the Senators will know better than me, given that we are looking at this through the lens of leaving the EU, which is significant for both parts of Ireland and in terms of the Good Friday Agreement.