Professor Colin Harvey:

I thank the committee for the invitation to attend. I am pleased to be here. I refer members to the written version of my opening statement, which I have provided. I will not necessarily read all of it, but I will go over the main points. I will first contextualise the discussion and then consider the question of citizenship in the context of the voting rights issue we are reflecting on this afternoon. I want to put this discussion in a wider context without losing sight of the specific issue concerning voting rights in presidential elections.

Any number of contexts could be mentioned, but I will focus on two. One is Brexit and what is happening with that. We have a withdrawal agreement and a protocol on Ireland and Northern Ireland. It is important to underline, in respect of the withdrawal agreement and protocol, that there are references there to human rights and equality protections, as well as matters such as the continuation of the common travel area. My sense is that those aspects of the protocol have been rather neglected in public discussion thus far. It is important to highlight that there is recognition in the much discussed protocol of commitments to rights and equality.

One issue concerning voting rights, which I raise in the written version of my statement, is that it is important to reflect on is what happens regarding the European Parliament once Northern Ireland and the UK leave the European Union.

There has been some discussion already, as members will be aware, as to how Northern Ireland's voice might be represented in the European Parliament in a post-Brexit context. I wanted to highlight in my written paper what might be done by the Irish Government around voting rights but also questions around possible observer status to ensure a voice from Northern Ireland continues to be heard in the European Parliament after Brexit. There has been quite a discussion about the democratic element of what will essentially be a special arrangement for Northern Ireland as reflected in the protocol. That aspect of it has been rather neglected. There has been much discussion of the mechanism around the Northern Ireland Assembly.

The second context is the implementation gap with respect to the Good Friday Agreement. There is a question around the birthright provision of the Good Friday Agreement. This concerns the right to be British, Irish or both and to identify and be accepted as such, along with the outworkings of the DeSouza case and where that is at. What is emerging is that British law policy and practice really needs to change to fully reflect that commitment to the birthright guarantee. What emerged from the Upper Tribunal decision is a sense that the Home Office and the British Government feel their interpretation of the agreement is the correct one and it is not an admission but deliberate. That is concerning to all of us. There is a widespread view, including that of the Government which the Taoiseach made clear, that it is a misreading of the agreement. That needs to be addressed in the negotiations to come.

In the discussion around the birthright clause, we are talking about the rights of British citizens, Irish citizens and the right to be either or both. What is worth underlining is that the Good Friday Agreement packaged that within a broader human rights framework. That has been neglected. For example, there is still no bill of rights for Northern Ireland flowing from the Good Friday Agreement. There is no charter of rights for the island of Ireland as anticipated in the agreement. In my written submission, I gave an example from the advice submitted by the Northern Ireland Human Rights Commission in December 2008 in which it recommended a cultural and identity clause. Way back in 2008, the commission had already recognised the problem that we are now facing into regarding domestic incorporation of those provisions.

We have really felt the absence of a comprehensive human rights framework as anticipated by the Good Friday Agreement in the North and on the island. Brexit makes that conversation one that is urgently needed in terms of the protections people need now and into the future. I really want to underline the need to revisit that discussion as part of the ongoing negotiations and conversations that are happening.

On issues such as parity of esteem and equal treatment, I refer members to the Irish language legislation and the failure to fulfil promises in that regard. The presidential voting rights issue is its own specific question. There is a rather troubling and worrying framework in which this conversation is taking place. There is a sense in which the human rights promises of the Good Friday Agreement have not been taken forward in the way anticipated. Commitments around mutual respect, parity of esteem and equality of treatment remain unfulfilled in law policy and practice. The good news is that there are solutions to some of those problems. The tricky bit is getting those solutions implemented in practice in the time ahead.

Citizenship and voting rights are relatively straightforward. The Constitutional Convention in 2013 made clear recommendations on what should happen on that both for all Irish citizens and Irish citizens living in the North. There was an options paper in 2017. We now have the Bill, the Referendum Commission and perhaps a referendum happening at some point in the near future. There is a growing international European trend towards the recognition of non-resident voting rights. It is clear, as members know from the evidence that they have already seen, that Ireland's restrictive approach is a real outlier both on a European basis and internationally. The right to vote is a fundamental civil and political right. There is a strong citizens’ rights rationale for taking this forward and, increasingly, given international trends and international practice, of basing that right not on residency but on citizenship. My own sense is that the blanket system which currently exists in Ireland cannot be justified. Change is reasonable, proportionate and justified given international practice and given the fundamental importance of this foundational civil and political right.

The issue of people over territory is very much at the heart of the Good Friday Agreement. Taking forward this initiative of presidential voting rights will have the advantage of beginning to tackle some of the barriers that separate us on this island and internationally, as well as overcoming mutual misunderstanding and mistrust. In that context, it is important to bear in mind that the UK system permits overseas voting in certain contexts.

The Irish Constitution speaks to all citizens. It talks about a shared island and speaks to the diaspora as part of a global conversation about citizenship and the Irish nation. What is being proposed is, in our rather febrile times, reasonable, sensible, modest constitutional reform, dealing with a specific issue, presidential voting rights, which would bring Ireland into line with what is happening internationally.

In my written submission, I proposed several recommendations which I will share. First, we need to revisit the sort of comprehensive human rights framework for Northern Ireland and for the island envisaged in the Good Friday Agreement. That includes revisiting proposals from the Northern Ireland Human Rights Commission on a bill of rights and proposals from the North-South joint committee for a charter of rights for the island. Brexit makes that conversation essential. We must keep in mind that the Conservative Party - who knows who the next British Government may be - has talked consistently about repealing the Human Rights Act and replacing it with the British Bill of Rights. We need to revisit that discussion. The birthright guarantee of the agreement matters not just for Irish citizens but British citizens as well. It also matters not just now but in the future.

We should remember it is an obligation that will persist in the event of constitutional change. British domestic law, policy and practice have to change to reflect that agreement provision. As the Taoiseach has made clear, the current British position is a misreading of that clause.

We also need to give more thought than is currently being given to a representative voice for the North in the European Parliament post Brexit. We need to have discussions on voting rights as well as possible observer status in the European Parliament to make sure not only that the Northern Ireland Assembly has a voice in the new arrangements but also that the voice of Northern Ireland is heard at the European Parliament going forward given the special status that will emerge.

I will end with a forceful point on voting rights in presidential elections. We live in a world of myths and fake news and in rather febrile and difficult times. Ultimately, having thought about this issue for a number of years and having spoken to the Constitutional Convention in 2013 and done quite a bit of work on it, my view, given what is happening internationally, is that this is a modest, reasonable change that relates specifically to the voting rights in presidential elections. Others do this. It is good to see the Government making progress on the issue and it would be useful to see a referendum on it as soon as possible. Support for the principle of non-resident voting rights is growing and has gained widespread European and international support.

What worries me about this discussion is the temptation to focus excessively on risks. That neglects the opportunities and benefits of enhanced engagement with Irish citizens wherever they live on the island or globally. Thus far, there has not been sufficient focus on the benefits to this island of enhanced engagement as part of work on promoting, in practical terms, the idea of global Ireland, having that level of engagement and ensuring people are fully engaged democratically with Irish society. To make a simple point, having looked at the large number of states around the world which do this - members will have seen all the evidence on this and they do not need me to go over it - I have concluded that the Irish State has the local and global capacity to do this and make it work. I thank the members for listening.