Mr. Daniel Holder:

Mr. Finucane is entirely right. Articles 1, 2 and 3 of the protocol are involved. One does not need to go further than the first three articles. Article 1 of the protocol sets out its purpose, which is expressly to avoid a hard border on this island. It is also to maintain the conditions for North-South co-operation. EU citizens in Donegal or other Border communities are used to living a cross-Border life, perhaps taking their kids to parties after school with their school friends across the Border, they will suddenly be told that they are crossing a line. If they do not have an electronic travel authorisation, or if they had one but it expired and they forgot about it, they could be facing up to four years in prison for having crossed the Border. If that is not a hard border, I do not know what is. It clearly falls within the definition of a hard border that any good faith interpretation of the protocol would provide. UK ministers, debating the bills, claim that this is not a hard border. The other parties to the agreement, which are the Irish Government and the EU, need to stick to the interpretation that this clearly constitutes a hard border and a breach of the protocol.

Article 3 of the protocol is the one that deals with the movement of people. Many of the other ways to avoid a hard border relate to trade and are dealt with by numerous other articles in the protocol. Article 3 defers to the two Governments bilaterally, rather than to the EU and the UK, to make arrangements under the auspices of the common travel area. That must surely be read compatibly with the purposes of the protocol, which are to avoid a hard border. That is one area where the UK is clearly in breach of its commitments.

Article 2's commitments are interesting in that this makes some of the rights of the Good Friday Agreement justiciable and enforceable in the courts for the first time. Under Article 2, the UK is legally bound to ensure there is no diminution in certain listed Good Friday Agreement rights as a result of Brexit. I would have liked that commitment to go further. If the UK diminishes the same rights for other reasons, such as the incorporation of the European Convention on Human Rights, it hollows out the commitment not to do so for reasons relating to Brexit. That includes rights to equality of opportunity and economic activity and rights to choose one's place of residence. We have looked at a number of areas where the UK has diminished rights of non-Irish EU citizens. Those include the right to vote for people who arrived after Brexit and the right to work in certain civil service occupations.

This Article 3 commitment is also relevant where the rights to socioeconomic activity and to reside on one side of the Border but to live a fluid life on both sides are clearly diminished by this new system and hard border that will be brought in by electronic travel authorisations. It is certainly not good enough for the UK to tell people not to get caught and that it does not do passport checks on the Border. We know that it does plenty of in-country immigration checks. If anyone comes into contact with law enforcement over the Border, for example in a car accident, what happens? Is people's insurance valid if they drive over the Border and have irregular status because they did not realise that they need an electronic travel authorisation, even on a road that crosses both sides of the Border?

It would be welcome if this committee could make representations to the Government and internationally about breaches of the protocol with regard to the freedom of movement of people because of these arrangements in the Nationality and Borders Bill in the UK.