Good morning and welcome to the 21st meeting of the Culture, Tourism, Europe and External Relations Committee in 2017. I would like to remind members and the public to turn off mobile phones and any members using electronic devices to access committee papers should please ensure that they are switched to silence. Apologies have been received today from Jackson Carlaw and I would like to welcome Dean Lockhart, who will be substituting for Jackson to the meeting and to invite him to declare any relevant interests. Good morning, convener. I am a member of the Law Society of England in Wales. Our first item of business today is an evidence session on the article 50 withdrawal negotiations. The focus of today's session will be the circumstances relating to Northern Ireland and the Republic of Ireland. It is my pleasure to welcome the consul general of Ireland to Scotland, Mark Hannafe. Mr Hannafe, would you like to make an opening statement? I would please if that is okay. Good morning to you, convener. I would like to express my thanks to you and to the members of the committee for your invitation to participate in this session this morning and to discuss the perspective of the Irish Government on the UK's withdrawal from the European Union and the negotiation process that is currently under way. As you probably all know, we were deeply disappointed at the UK's decision to leave the European Union, but we respect the democratic decision of UK voters. Our principal objective now is to try to make the best of a Brexit that we hoped would never come to pass and to limit the negative consequences for Ireland, for the British Irish relationship and for the European Union as a whole. Our priorities are clear. We want to protect the gains of the Northern Ireland peace process, including by protecting the Good Friday Agreement in all its parts and avoiding a hard border on the island of Ireland. We want to maintain the common travel area between Ireland and the UK. We want to minimise the impact of Brexit on trade and the economy, maintaining a close trading relationship between the UK and the EU, including Ireland, and we want to influence in a positive way the future of the European Union itself. The key priority issues for Ireland have been prominently reflected in the EU's negotiating guidelines and directives for the withdrawal negotiations, which are being led by Michel Barnier and his team at the European Commission on behalf of the European Union. In particular, the European Council and the European Parliament have recognised the unique situation and the specific circumstances which apply on the island of Ireland. As you know, the question of Ireland and Northern Ireland is one of the areas on which it has been decided that sufficient progress must be made in this first phase of negotiations before a second phase, focusing on the broader question of the future UK-EU relationship, can begin. The European Council will take stock of the progress achieved in the negotiations so far at its October meeting in about four weeks' time. While some progress has been made in the negotiations in some areas more than in others, October is fast approaching and further progress is needed. It is not the case that all issues relating to Ireland and Northern Ireland need to be fully resolved before the next phase of negotiations can be opened, and we do acknowledge that it will be difficult to determine how certain border issues will be resolved until we know what new arrangements will be put in place between the UK and the European Union. But it must be clear that both sides are beginning to converge on a shared understanding of how those issues should be addressed. We very much hope that the British Government will engage fully on all of the phase 1 issues, including the financial settlement, citizens' rights and the Ireland issues, so that tangible progress can be made and the critical discussions on the future relationship between the United Kingdom and the European Union can begin. Real progress on these phase 1 issues will help to build trust and confidence in the process and help to ensure that the complex negotiations ahead have the best possible chance of a positive outcome. Overall, we believe that we all, Ireland, Britain and the European Union, need to work towards the closest possible future relationship between the UK and the EU, towards an orderly exit and towards a substantial transition period that allows everyone to prepare adequately for new realities. Such an approach will provide certainty for businesses and allow companies to plan and to invest. The Irish Government believes that such a transition period must maintain the status quo in terms of membership of the customs union and the single market. It would be unreasonable to expect businesses to have to adjust to new arrangements twice. Our key objective in relation to Northern Ireland is to ensure that the gains of the hard-won peace process there are protected. Part of this involves protecting our all-island economy. It has supported peace and facilitated the normalisation of relations on our island, allowing people to get on with their daily lives. More than a third of Northern Ireland's exports travel south across our near-invisible border every year. Much commentary is focused on the challenges for the movement of goods across the border, but the Irish Government has consistently highlighted that the challenges of the border are about more than that. It's about people's lives and their livelihoods. It's about the border region being able to develop and to prosper. It's about the potential psychological and social impacts on communities. The European Commission Task Force has recently published a set of guiding principles for the dialogue on Ireland and Northern Ireland as part of the article 15 negotiation process. The UK is a co-guarantor of the Good Friday Agreement and this paper makes it clear that it is the UK's responsibility to propose workable solutions when it comes to the border, to overcome the challenges created by the UK's decision to leave the European Union. It also stresses that the situation regarding the border on the island of Ireland will require a unique solution, which cannot preconfigure other future arrangements for the EU-UK relationship, including on trade and customs. We have examined very carefully the ideas on a new customs relationship that the UK put forward in its position paper published last month. On the face of it, these ideas do not seem to be consistent with the shared objective of avoiding a hard border on the island of Ireland while respecting the integrity of the EU's single market in which Ireland will continue to play a full part. Our Minister for Foreign Affairs and Trade, Simon Coveney, has made the point that streamlined customs arrangements are unlikely to be streamlined enough for businesses whose margins are tight and that, while a customs partnership has some promise as an idea, this will simply not be feasible if it is undercut by the UK making trade deals with countries that don't share our standards or systems. The obvious solution to address the difficulties that Brexit poses for Northern Ireland, if we really value the peace and prosperity that has been built on the foundation provided by the Good Friday Agreement, is for the UK to remain in an extended customs union and single market, or some version of that concept. We believe that this option would be in the interests of Ireland, of Britain, and of the European Union as a whole, and it deserves to be fully explored and considered rather than being taken off the table before negotiations on a future trading relationship between the UK and the EU have even commenced. We very much hope that we can move on soon to discussions on that future relationship and that we can achieve an outcome which provides for the closest possible future UK-EU relationship that is consistent with the integrity of the single market and the principles that have guided the development of the European Union. We have made it very clear, too, that, in respect of its connection with the EU in the future, the door always remains open for the United Kingdom. Thank you very much, convener, and I would be happy to respond to any questions that you may have. Thank you very much, Mr Hanefi. Can I open by asking you? You talked about the obvious solution is for the UK to remain within customs union and as close as possible to the single market. Is that the kind of progress that you would like to see in terms of this first stage? Is that what you would expect to see before we can say that we have moved on in October? I think that it is unlikely that we would get fully there in this first stage of negotiations. It is clear, as I said in my statement, that we are not expecting all the issues to be resolved in respect of the first phase questions before the European Council is in a position to make a judgment that sufficient progress has been made on those issues. It should be clear that both sides of the negotiation are beginning to converge on a shared understanding of the essential principles that are at stake and a shared understanding of the direction in which the negotiations need to move to solve the key issues that need to be addressed, including the difficulties in relation to Ireland and Northern Ireland. I do not think that we need to get to a full exploration of those ideas, because they do encompass questions connected with the broader future UK-EU trading relationship, which are not phase 1 issues. However, at the same time, I think that if an openness to contemplating that solution was demonstrated as part of the phase 1 negotiations, that would be extremely helpful in demonstrating that progress in the negotiations is being made. Do you feel that, because it has been taken off the table, as you say that progress cannot be achieved in that stage 1? No, I do not think that it rules out the prospect of sufficient progress being achieved. We await further information and suggestions from the UK side in relation to the proposals that it will be putting on the table to address the difficulties that Brexit is likely to pose for Ireland and Northern Ireland, and in particular in relation to border arrangements. We do make the point, and the European Commission has made this point through its essential principles paper published two weeks ago, that it is very much incumbent on the UK Kingdom to come to us with those suggested solutions. We are open to receiving them and considering them, but in the absence of what we would consider to be workable solutions emerging at this stage from the UK side, the prospect of continued customs union and single market membership seems to us to be the obvious idea that deserves exploration. Could you perhaps go into detail about some of the challenges that could be posed if you do not achieve your objectives? What would the challenges in a practical day-to-day way be for the all-Irelanders economy? The re-imposition of a hard border between the Republic and Northern Ireland would have very significant impacts economically, politically and psychologically in terms of the progress that has been achieved in the peace process since the signature of the Good Friday agreement in 1998. We have gone through a process of essentially social and economic integration between Northern Ireland and the Republic, between communities on both sides of the border on north and south. Much of the economy in border regions, particularly the agricultural economy, is highly integrated. They say that hundreds of thousands of litres of milk travel back and forth across the border every week for processing. There are something like half a million pigs that travel from south of the border to north every year for processing, 350,000 sheep that travel from north to south for processing. It has become normal for businesses and for economic actors on one side of the border to also conduct business without hindrance on the other side of the border. Any re-imposition of a hard border, any difficulties that might be encountered by businesses, particularly small and medium enterprises in that region, in continuing to operate and to trade in that way could have very difficult consequences for the economy of border communities. There is also the question of the psychological impact of a re-imposition of a border on the island. We have moved in the past 20 years away from a highly controlled border arrangement. That has helped to ensure that the dividends of the peace process are very visible and tangible for communities in Northern Ireland. It has helped to ensure normalisation of political relationships on the island of Ireland. Any sign that momentum in that direction is starting to reverse could have difficult and unpredictable political consequences and consequences for communities on the island, and that is something that we would very much wish to avoid as the process continues. What you are saying is that the UK proposals do not dissuade those concerns then? Right now, the proposals that were included in the UK position paper that was published last month are interesting and certainly deserve examination, but there were two key suggestions included in that paper. They talked about the possibility of streamlined customs arrangements and equally the possibility of a close customs partnership between the United Kingdom and the European Union. There was a lot in that paper that we welcome and the very fact that ideas and suggestions were put down in writing and circulated to us is welcome. The commitment in that paper to avoiding any physical border infrastructure for any purpose on the border between Ireland and Northern Ireland is also very welcome, but it is a lot easier said than done. In respect of the two options that were suggested in the paper, in terms of the highly streamlined arrangements, as I mentioned in my opening statement, we believe that these arrangements are unlikely to be streamlined enough for businesses operating in the border region. We will be starting from the same place in terms of single market regulations on either side of the border, but as time progresses regulations and arrangements will inevitably diverge as the UK negotiates as it intends to do trade deals with third countries. This means that more paperwork, more customs checks and more red tape will inevitably emerge chipping away at the tight margins of cross-border businesses. That is without getting to the question of the impact that more of a border on the island would have on the peace process. In terms of the new customs partnership that was suggested, the idea certainly does have some promise, but as currently put forward we believe that it could be a logistical nightmare to operate. It would also only prove viable in our view if the UK is prepared not to negotiate separate trade deals with third countries and instead is prepared to take advantage of the trade deals that the EU itself has concluded and is currently negotiating with major economies, such as Canada and Japan. Certainly the publication of the paper by the UK side is welcome, but we do not believe that the ideas contained in the paper at this stage are sufficient to solve the problems that we are facing. Thank you very much, and I pass over to Liz McDonough. Thank you very much. The UK Government, as you know, Council General, has published a couple of papers, one of which relates to potential future relationships that you have just described in some detail and the other relating to Northern Ireland and Ireland specifically and issues arising from that. I suspect that the UK Government would say, while we have set out our objectives, everyone agrees with objectives like retaining the common travel area, protecting the peace process and maintaining free movement of people and goods across the border. What is the problem? I suspect that it is a UK Government perspective. Can you outline perhaps what the problem is and what it is that requires other than the statement of good intentions in order for that to actually work in practice? I think that the problem is reconciling those objectives, and whether the broader objectives that have been set out by the United Kingdom are mutually compatible. The big difficulty that we see is the potential incompatibility between solutions that might be proposed for the Irish border and the intention of the United Kingdom to leave the customs union, leave the single market and conclude separate and distinct United Kingdom-only trade deals with other economies. It is very difficult to see how that circle can be squared and how border arrangements, which are consistent with the integrity of the European Union single market in which the Irish state will continue to play a full part, and how border arrangements that are consistent with those single market commitments can be designed in a context where the United Kingdom is determined to vary its customs and economic arrangements significantly from those that apply within the European Union. I was very stuck in your opening statement that you made the comment that it would be in everybody's interest and would enable progress in Ireland particularly if the UK was to remain in the customs union and single market in the transitional phase, presumably for two or three years beyond March 2019. I wonder if you would expand on that and explain what that would allow in terms of negotiating and agreeing longer-term arrangements that would protect the position in Ireland? It certainly allows time for further exploration of the future arrangements that might be agreed at the end of this negotiation process. We have consistently stressed the importance of robust transitional arrangements in order to provide certainty and continuity to citizens and businesses and to ensure that there is an orderly and calm transition from the UK's withdrawal from the European Union to a future UK-EU partnership. We do think that the importance of those transitional arrangements and the value of such arrangements is now very broadly understood as being in the best interests of all parties concerned the UK, Ireland and the broader European Union. It is fair to note that in its paper on future customs and trading arrangements, which you mentioned a little earlier, the UK itself has put forward a proposal for an interim period of close association with the EU customs union, which is a positive indication of thinking on the United Kingdom side. We are looking very carefully at this and at other proposals in the UK paper, along with our EU partners and with the European Commission Task Force, in light of the parameters that are there, in light of the European Council guidelines and negotiating directives agreed by the Council. To be fair, it has to be said that in terms of the possible nature of those transition arrangements, it is a matter that we will only be able to address formally once we have made sufficient progress on the terms of the orderly withdrawal and have been able to move into phase 2 of the negotiation process, and we very much hope that we get there very soon. That is an important point, and clearly the easiest transitional arrangement is one where the current provisions continue to apply for a transitional period. Given that possibility at least exists for the period 2019 to 2021 or 2022, what would the Irish Government consider to be sufficient progress on the withdrawal agreement in relation to Ireland in the period between now and March 2019? The formal judgment on what constitutes sufficient progress will be made by the European Council as a whole meeting in October. As I said in my introductory comments, we are consistently making the point that there is a certain misapprehension sometimes about the nature of the progress that has to be achieved, or the scale of the progress that has to be achieved. We are not suggesting that everything needs to be signed and sealed. We are not suggesting that a deal has to be agreed, which will cover comprehensively all the issues that arise for Ireland and Northern Ireland as a result of Brexit before the second phase of negotiations can be opened. However, it needs to be clear that both sides are converging on a shared understanding of what solutions might be arrived at and a shared understanding of the principles that should guide those solutions as the negotiations progress. Once the second phase of negotiations begins, we will be in a phase of parallel negotiation, where discussions on the future relationship will be taking place alongside discussions on the remaining elements of negotiation on the phase 1 issues and tying down formal ways of addressing those issues. We have two rounds of negotiation yet to come before the European Council meets in October and makes its judgment on the question of whether sufficient progress has been made on the withdrawal issues. Let's see how they go. Let's see whether we get to a point in mid-October where it is possible for the European Council to make the judgment that progress has been sufficient, that confidence has been built in the process, and that the foundations are there for phase 2 negotiations to begin. Briefly, an indication from the UK Government when the Prime Minister speaks this week that she understands the principles of that transitional period and of the ultimate destination would, in your mind, constitute a signal of convergence on shared principles. Yes, convergence on principles would be very valuable. That is the purpose of the essential principles and guiding principles papers that the European Commission task force has been publishing over the past number of weeks. It sets out the understanding from the European Union side of the key principles that should be reflected in any agreement or deal on the phase 1 issues. If there can be convergence on those, then that moves us very far in the phase 1 process. Dean Lockhart I would like to explore the question of trade deals. If the UK post-Brexit enters into trade deals off the back of the existing EU trade deals with, for example, Japan, the Canada trade deal that came into effect today and other countries, if the UK does that, would that minimise your concern about the divergence of regulations going forward? The UK's trade relationships with third countries would map and be the same as the EU's trade relationships? It would certainly help. If there is a guarantee that the nature of the trading relationship between the United Kingdom and third countries parallels that of the European Union with those third countries, it would certainly help to resolve certain difficulties which might exist about the compatibility of single market and trading regulations within the European Union and the United Kingdom's external economic relationships. There would, however, I would imagine, have to be a guarantee that there wouldn't be subsequent divergence between the trading relationships which exist between the European Union and third countries and the United Kingdom and third countries in order to ensure that long-term arrangements for a trading relationship between a very free and unfettered trading relationship between the United Kingdom and the European Union could continue in the longer term. Obviously, while the UK is part of the customs union, formal negotiations with third countries can't take place in terms of free trade agreements, but that doesn't stop informal heads of trade or informal negotiations taking place in terms of what a trade agreement might look like post Brexit. How far down the track, and I appreciate this depending on some different scenarios, but how far down the track do you think the shape of a trade agreement could be outlined between the UK and Ireland over the next couple of years before and assuming if, one scenario, the UK leaves the customs union? Do you think the outlines of a trade agreement could be in place? It's not the case that there will be a trade agreement between the UK and Ireland. There won't be a bilateral process as part of this negotiation. Negotiations will be handled between the United Kingdom on one side and the European Union on the other. An ultimate agreement which is reached between the UK and the European Union will obviously reflect elements which encompass the specific circumstances and unique circumstances on the island of Ireland, which have been widely recognised. The arrangements to govern the economic relationship between Ireland and the United Kingdom in the future will be encompassed within a broader UK-EU agreement once we reach the end of this negotiating process. We very much hope, obviously, that those relations can be as close and as productive as possible. You mentioned in your opening statement about that this isn't just about goods moving across the border, this is something that very much affects people's day-to-day lives and will have a massive impact. It's really that that I would like to ask about and the issue of citizens rights. Just to get your views on the UK's position paper that was put forward on that and how you see this developing. The impact on communities and the impact on society in Northern Ireland that Brexit might have, if things can be sorted out in a positive way, is very significant. There are impacts on communities on both sides of the border. I've mentioned some of the economic impacts. There are impacts on North-South cooperation in many sectors. I think it's useful to reflect on the fact that the Good Friday Agreement itself, which is the founding document of the Northern Ireland peace process, was agreed at a time when the relationship between Britain and Ireland and between Northern Ireland and the Republic was always assumed to take place in the framework of shared European Union membership. References to the European Union and to cooperation within the framework of shared European Union membership are regular within the Good Friday Agreement and the associated documents that govern both North-South and East-West institutions arising from that agreement. The North-South Ministerial Council, for example, has a specific role in addressing European Union policy questions. The British Irish Council, which was established on foot of the Good Friday Agreement to provide a framework for relations between the UK and Irish Governments and the devolved administrations on these islands, as well as the administrations in the Channel Islands, is also tasked with discussion on relevant European Union issues. The absence of that supporting European Union framework for that cooperation brings us into a very new paradigm. It is difficult to anticipate precisely what impact the absence of shared European Union membership might have on those opportunities for cross-border co-operation. Even in sectors such as transport, for example, the Irish Government is providing funding towards the upgrading of the road that stretches between Oman and up towards Derry and Dunigol. In areas such as healthcare, for example, there are arrangements for cardiac patients who require access to emergency services in Dunigol to access those services in Attenegelvan Hospital in Derry. There are co-operation arrangements that allow children who require pediatric cardiac care and cardiac surgery throughout Northern Ireland to access those services at the Irish National Children's Hospital in Cromlin in Dublin. We are hoping and assuming that those types of cross-border co-operation can continue without hindrance in a post-Brexit scenario, but there will be more difficulties than were anticipated when the frameworks for that co-operation were originally put in place. That could present challenges for us, even in terms of divergence of standards, of recognition of qualifications, of recognition of product standards for medical and healthcare products. Those issues could arise and could require some effort to deal with. In terms of the second half of your question in relation to citizens' rights, we have obviously examined very carefully the paper and the proposals put on the table by the United Kingdom. It is an issue that is being discussed in detail in the context of the negotiating rounds between the UK and the EU in Brussels. It does seem to be the case that there is at least a degree of political convergence on what the UK and the EU sides want to see as the net effect in terms of the experience of UK citizens in the United Kingdom and the experience of UK citizens elsewhere in the European Union at the end of this process. There is a divergence review still on, I suppose, the mechanisms and the governance of those arrangements into the future. Those issues will be discussed during the next two rounds of negotiations, but it is possible to say that we are hopeful of good progress in those areas reasonably soon. Thank you. Just further to that, what would be the Irish Government's view on what do you think needs to be agreed in terms of citizens' rights as part of that withdrawal agreement? Our position is very clearly aligned with the European Union's position and the position paper that has been published by the commission task force on the question of citizens' rights. We are looking at this from a unique perspective as well in that the regulations that govern the residents of Irish citizens here in the United Kingdom are derived principally from the common travel area arrangement between Ireland and the UK rather than necessarily from the rights of Irish nationals as EU citizens. That is something that has been clearly recognised by the European Union side and by the UK side. There is a commitment on all sides to preserve those common travel area arrangements. They have been recognised in the European Council negotiating guidelines. We are obviously discussing them in great detail as part of the negotiating process. It is one of the areas on which we do believe that good progress has already been made in the negotiations between the UK and the EU sides. Our legal analysis at this stage suggests that there is nothing in the current common travel area arrangements which are in any way incompatible with European Union law, even in a situation where one of the parties to that common travel area is a continuing European Union member state and another party is not. The United Kingdom has made very clear, very publicly, that it does not intend to put in place any regulations that would affect the ability of EEA nationals to travel freely through the common travel area. That is extremely helpful. It means that we should be able to reach a good solution in terms of the maintenance of the common travel area post Brexit. To follow up on a couple of the questions from Dean Lockhart, can you provide the committee with the percentages of the level of trade from Ireland to the UK, but also the level of trade from Ireland to the EU that travels via the UK? Overall, the level of trade between Ireland and the United Kingdom exports about 17 per cent of our overall exports to the UK. Between 40 and 45 per cent of our overall export trade goes to continental Europe, to what will be the EU 27 post Brexit. It is the case that quite a significant proportion of the goods that are shipped from Ireland to continental Europe transit through the United Kingdom used as it were, the British land bridge, to physically get from Ireland to the UK. I don't have a definite statistic that I can give you on that now. I can check it and come back to you if you would like, but certainly the importance of that land bridge and the continuation of the facilitation of goods trade between Ireland and continental Europe via the United Kingdom is something that has been recognised in the European Union papers that have been published and is something that is being taken into account in the context of the negotiations that are under way. It is fair to say that there is an equivalent issue of sorts in that quite a proportion of the trade that moves between Northern Ireland and the rest of the United Kingdom actually transits through the territory of the Republic is maybe shipped on a lorry to Dublin and then on a ferry to Liverpool or to Wales. As a result of that, there is an equivalent issue there that needs to be addressed on the United Kingdom side, but we are confident that that issue is well understood on both sides and that progress will be made in finding an arrangement to ensure that that type of trade can continue post-Brexit. Certainly, in your opening comments this morning when you spoke about the issue of the transitional arrangements and that it would be unreasonable for businesses to make changes twice if an agreement could not take place, but following on from your percentages that you just highlighted there and also the issue of the land bridge, I think that it makes that point even stronger. I am sure that you would agree that a transitional arrangement is sorted out between the UK and the EU to ensure that business in Ireland does not suffer as a consequence. Absolutely. Any change in regulations imposes costs on business and it does not seem to us to be reasonable to suggest to businesses, many of whom, as I said, are trading across the border on the island of Ireland or between Ireland and the United Kingdom who operate on very tight margins. It does not seem to us to be reasonable to suggest that those businesses should be required to adjust themselves to one new set of circumstances and a new set of regulations and arrangements and then a short number of years later to have to transition yet again to a completely new set of circumstances and regulations and arrangements. As a result of that, our view is that a prolongation of current arrangements through continued UK participation in the customs union and the single market during a transitional period would make the most sense for everybody involved. I ask a couple of questions about money. The progress that is meant to be judged in the council or the council of ministers in October will, to a large extent, depend on money. To me, it is going to say something about money. We are told tomorrow. What do you think constitutes progress on money? The first thing to say in relation to the question of the financial settlement is that it has to be very clear that what we are talking about in relation to the financial settlement is seeking a commitment from the United Kingdom to honour its obligations and the commitments that it has made as a member state of the European Union. It is not about imposing a bill or a charge on the United Kingdom for leaving and it is not about punishing the United Kingdom or seeking to dissuade it from taking the action that it has chosen to take. The UK itself has stated very clearly that it intends to work with the European Union to determine a fair settlement of the UK's rights and obligations as a departing member state in accordance with the law and in the spirit of continuing partnership. From an Irish perspective, we fully support the European Union position which tries to approach the issue in what we think is a fair and a transparent way based on a clear methodology which is agreed between both sides and which is objective. In terms of the judgments on whether sufficient progress on this issue will have been made by October, again, I have to repeat that we are not looking for final agreement. We are simply looking for a situation where it is clear that a convergence of views is developing and that a shared way of approaching this issue is emerging and where it appears clear that it will be possible to get ourselves ultimately at the end of the negotiation process to an agreed conclusion which both sides can accept. It is an if because the UK Government has yet to apply for a transitional period, however, along that transitional period may be, but if the UK Government applies it and it is assumed again that the Prime Minister will do that tomorrow in some way, the view is that that will mean a charge per year to remain in, as you were saying earlier, on the single market and the customs union. There are costs associated with single market membership. There are single market institutions which need to be funded. There are regulatory bodies which have to pay their staff and fund their operations. As a result of that, a state that participates in the single market I think would quite reasonably be expected to make a financial contribution to the running of that single market and those single market institutions. It is a principle that is understood by states that are outside the European Union but still participate to a degree in the single market. I think that it would be understood that a similar provision should apply in respect of the United Kingdom. We all hope tomorrow when this speech is made in Florence that these things would be set out in some clarity which would help us all enormously in understanding the UK Government's position. It would help us all and I admire your optimism. I have not, but thank you, I will say. Thank you. Thank you very much. Rachel Hamilton? Well, it's really just to say that I think there is goodwill on both sides and you have sort of said there are positive steps to come to an agreed conclusion. I just wondered was there anything that you wanted Theresa May to set out in her speech tomorrow because it seems as though she will make Northern Ireland a priority as well as the financial settlement or the divorce bill, if you like. I just wondered what perhaps you were hoping that she might set out over and above what you have talked about as the status quo in a frictionless border. To be fair, the importance of Northern Ireland and the priority that needs to be attached to Northern Ireland in the context of this negotiation process has been acknowledged very clearly by the United Kingdom side, by the United Kingdom Government. It was there in the Lancaster House speech that the Prime Minister made in January. It was there in the article 15 notification letter that was submitted at the end of March. We do know that there is goodwill and a commitment to work very hard to find a way of resolving the issues that Brexit poses for Northern Ireland. We have to make the point, and it is a point that is emphasised in the recent EU guiding principles paper in respect of Ireland and Northern Ireland, that Brexit is a British choice. We are perfectly content with the status quo in respect of arrangements on the island of Ireland and would like to see it continue. It is Britain that is choosing to change that status quo, and in that context it is incumbent on the United Kingdom Government to come up with solutions and suggestions for how it wishes to proceed in terms of its overall policy objectives in a way that allows us to preserve insofar as is possible the arrangements that currently exist on the island of Ireland in respect of north-south co-operation in respect of the open border and in respect of the full continued implementation of all provisions of the Good Friday agreement. We have suggested that a commitment to continued single market and customs union membership would be one way of solving that, that is on the table, and we wait to see what other suggestions or ideas of the United Kingdom wishes to put on the table as part of the negotiation process. Okay, so just one last question. I don't foresee this, but have you made provision for the possibility of no deal? We are obviously conscious of the risk of no deal, you know nothing is certain in terms of this negotiation process. It's fair to say that we believe that a failure to reach agreement ultimately between the United Kingdom and the European Union and the disorderly withdrawal, which would result, would be hugely damaging for everybody involved for the United Kingdom itself, for the European Union and most particularly within the European Union for Ireland. For that reason, we think it is incumbent on all sides to act responsibly and to approach the negotiations in a constructive, a positive, a flexible and an ambitious frame of mind to ensure that a no deal outcome with all its negative consequences can be avoided. I'm interested in who represents the north during this process and the level of scrutiny given to this issue. Obviously, strand 2 of the Belfast agreement is incredibly difficult to fulfil when you don't have institutions in the north to be part of any north-south agreement, so that not only means that there's no executive working with the Scottish and Welsh Governments, there's no assembly scrutinising this. That's for reasons separate to Brexit, but the resolution to it is increasingly related to that. What impact do you think the lack of functioning institutions in the north is having and will have on scrutiny of this? Certainly it's far from ideal that there is no functioning executive in Belfast at the moment that is in a position to represent the interests of Northern Ireland in the context of UK discussions and discussions among the devolved administrations and between the devolved administrations and the UK Government on Brexit, because there are issues and problems and difficulties relating to Northern Ireland, which are possibly not getting the attention and the extent of highlighting that they deserve given the absence of that Northern Ireland executive. We're working very hard to encourage the parties in Northern Ireland to come to an agreement which would allow the executive and the assembly to resume their work. Discussions informally continue all the time. There is some positive momentum in those discussions at the moment. Recent statements from the DUP and Sinn Fein have been encouraging in terms of the prospect of an executive being put back together, and we would very much wish to see that executive back up and running and back functioning to ensure that there can be as strong as possible a voice for the interests of Northern Ireland and for communities in Northern Ireland as this negotiation process proceeds. I think there is across Europe a good understanding now of the specific difficulties that Northern Ireland faces as a result of this process. Certainly, it's been very prominently highlighted in the European Council guidelines, in the European Parliament's resolution on the Brexit negotiation process, and the essential principles paper, the guiding principles paper published by the commission task force, has reflected those issues very, very strongly. We know that Michel Barnier himself has a very well-developed understanding of those issues. Giver Hofstadt, the European Parliament's lead on Brexit, was actually in Belfast yesterday and visited the border regions and is in Dublin today. There's certainly a good deal of attention being paid to Northern Ireland and to border issues, but it would certainly be extremely helpful if there was a functioning executive that was able to use its voice in the internal United Kingdom processes to ensure that the issues relating to Northern Ireland can get the attention that they deserve. What are the intentions in terms of parliamentary scrutiny of this process within the Republic? Is there a royal committee, a joint committee? What's the plan? Yes. The joint committee on European Affairs within the Eropthus is following the process. A number of sectoral committees are also looking at the specific impact of Brexit on their sectors. The Aries-Shanard, the Senate, has produced a report recently on the impact of Brexit on Ireland. A special Senate committee was set up to examine the issues. It's all part of a broader process of nationwide and island-wide public consultation that's been taking place over the last number of months. We have an all-island dialogue on Brexit, which has engaged at this stage, I think, about 1,200 different stakeholders in the process looking at the overall issues that Brexit poses for Ireland and some of the sectoral issues that Brexit is likely to pose in various sectors. Another full plenary meeting of that all-island dialogue will be taking place, I think, on the 28th of this month. There is a wide degree of dialogue and consultation and stakeholder participation on the Irish side. Grant, thank you. Richard Lochhead. Thank you. There are some sectors that are disproportionately important to Scotland and Ireland, which will be affected by the withdrawal negotiations, particularly agriculture and fishing. I just wondered if you wanted to shed any light on what your Government's thinking is in terms of the best way forward for those two sectors, particularly fishing, given that quite complex situation in terms of the Irish sea. Fishing is complex. It is an area that will have to be explored in detail in the context of the withdrawal negotiations. I do not want to prejudge what might come out of those negotiations, but certainly there are difficult issues that will have to be dealt with in terms of arrangements around the fishery sector in a post-Brexit scenario. More broadly, agriculture and the food and drink sectors are possibly disproportionately vulnerable, certainly in Ireland, to the impacts of Brexit. The agri-food sector is quite integrated between both between Ireland and Northern Ireland and, indeed, between Ireland and Britain. I think that statistics are that about 40 per cent of Irish agri-food exports go to the UK and about 45 per cent of the agri-food imports that come into Ireland come from the UK. There is clearly a great degree of economic integration between the two countries. The agricultural sector is also a key part of our economy in respect of employment, particularly in rural regions and in border regions. About 8.5 per cent of total employment in Ireland is in that sector. We are working to mitigate the possible impact of Brexit on that sector. We have taken some measures to support the sector through our budget for 2017. We are working with our agricultural support agencies and our enterprise agencies to ensure that businesses in that sector are prepared for the impact of Brexit and are ready to deal with the difficulties that it might present for them. I also suppose to diversify their export markets. Given the risk that it might be more difficult or the costs of exporting into the United Kingdom, that might be a little higher in the years ahead. There has already been a relatively significant impact on certain parts of the Irish agri-food sector as a result of the decline in the value of sterling since the 23rd of June last year. Board BIA, which is our overseas promotion agency for Irish food, estimates that Irish food and drink exporters to the UK have taken a hit of about €500 million in 2016 alone as a result of the decline in the value of sterling and the decline, therefore, in the value of their export trade. That is something that is already having relatively significant impacts on the agri-food sector in Ireland. Finally, in terms of the wider economy, you have outlined a lot of challenges and heard us to be overcome in this process. What upsides does our Government see from the UK's withdrawal from EU? There are potentially some, and we certainly intend to take advantage of them insofar as we can. We are clear that the likely net economic impact of Brexit on Ireland is going to be negative, so we are determined to find ways to mitigate that negative impact wherever we can. Brexit will leave us, in essence, as the only English-speaking member state of the European Union, that obviously has benefits in terms of foreign direct investment. We can continue to offer free and unfettered access to a market of 500 million people post Brexit, which the UK may not be able to do. We have already had some successes in certain sectors in attracting investments to Ireland from businesses that are concerned about future trading relationships between the United Kingdom and the European Union, including, for example, in the financial services sector. We had a major global insurance company, which announced yesterday that it would be basing its European operations in Dublin. Our enterprise agency is the industrial development authority, which leads on the promotion of Ireland as a destination for foreign direct investment. It has been having some successes in promoting Ireland as a destination for foreign direct investment that is displaced from the United Kingdom as a result of Brexit. We have a very strong investment offering. We have a very positive and favourable business climate. We have a very well-educated workforce and a strong availability of skills in Ireland. We have a track record of being a very good location for internationally trading businesses to base their European operations. As a result of that, we will certainly be seeking, insofar as we can, to attract any foreign direct investment that might be displaced from the United Kingdom as a result of this process, as it continues. Thank you. Stuart McMillan earlier asked about the balance of trade between Ireland and the EU in Ireland and the UK. Can you explain how that balance has changed as a result of Ireland's EU membership? Very significantly. Ireland and the UK both originally applied to join the then European Economic Community back in the early 1960s. I think that the statistic was at that stage—I am open to correction on this—that at that stage nearly 80 per cent of all Irish exports were sold into the United Kingdom market. Last year, it was 17 per cent. In contrast, we sold between 40 per cent and 45 per cent of our exports into the continental European market, into what will be the EU 27 market post Brexit. That is really a remarkable diversification in our export trade over the 40 years or so of our European Union membership. The ability to access continental European markets freely and without hindrance, the participation of Ireland in the single European market has really revolutionised our economy and allowed us to trade in a very different way to the way that we could trade prior to our European Union membership. It has had very significant consequences for Ireland. I take it that that has resulted in an attitude amongst Irish people towards the EU that is strengthening. Is this Brexit process strengthening feelings towards the EU in Ireland? There is very widespread public support for the European Union and for continued Irish European Union membership. The latest figure that I saw was a survey that carried out in August that suggested that 88 per cent of the Irish population are in favour of continued Irish membership of the European Union, which is an overwhelming figure. Ireland has a very strong European identity. We see European Union membership and participation in the European mainstream as a very important part of who we are. It has been something that has been, I suppose, key to the effective assertion of Irish sovereignty in the last 40 or 45 years. The idea that we are participating as an equal in discussions with the traditional great powers of Europe around the table in Brussels, that we can influence the policy of the European Union in so many areas as it evolves, is something that is very important for our international influence and our ability to shape the world around us in a way that is favourable to our interests. I think that is understood and appreciated by Irish people. When Ireland was tied to the UK, was it a more inward looking place? I think that is probably a fair comment in that we were geographically, I suppose, we are an island behind an island. There probably was a sense of us being, to a degree, politically and socially and economically, cut off from the European mainstream up to the early 1970s. We were always very keen participants in processes of European dialogue and integration. We were founder members of the Council of Europe in 1949, for example. We have always had a very strong commitment to multilateralism and our membership of the United Nations and broader multilateral policy processes. Membership of the European Union changed Ireland very significantly, socially, economically and politically. It allowed us to broaden our political and economic horizons in a very important way. I thank Mr Hanifee for giving evidence to us today. I shall now have a short break to allow for a change of witnesses. Our second item of business today is an evidence session on the current debate on EU citizens rights in relation to the article 50 withdrawal negotiations. I welcome our witnesses, Professor Shona Douglas-Scott, anniversary chair in law, co-director of the Centre for Law and Society in a Global Context, Queen Mary's School of Law University of London, Dr Tobias Lock, senior lecturer in EU law and co-director of the Europa Institute, University of Edinburgh and Dr Rebecca Zane, senior lecturer in law at the University of Strathclyde. I would like to invite Professor Shona Douglas-Scott to make a few opening remarks. Thank you very much, convener. I would like to make three brief remarks, one concerning the possible future status of EU citizens, secondly a very brief remark on the state of the negotiations and its relevance to citizenship and thirdly a comment about the specific role of Scotland and immigration in all of this. Firstly, regarding citizens generally, I think as a result of what we've seen so far, we can't be in any doubt that the role of EU citizens is going to change after Brexit. This is in contrast to some of the remarks that were said before the EU referendum, for example, by Vote Leave, who said that it would be irresponsible to scare EU nationals by hinting their status might change after Brexit. No one is suggesting such a thing. What we've seen of the documents, the UK paper so far suggests that it will change and I'm sure we will talk about the details because some of the questions that I've seen so far suggest that the details in which the status of EU citizens will change would be brought up in this discussion. But rules on family reunification or the fact that EU citizens in the UK will have to apply or reapply for settled status I think are very important changes. I think also I know that there may be a possible question on acquired rights, but the weakness of the application of that doctrine, again in distinction to some remarks that were made before the referendum, suggests that citizens' rights may not be able to be as protected as some might have thought. Secondly, moving on to the state of the negotiations, the first stage, so-called divorce settlement, citizens' rights specifically itemised as one of the three key items there along with Northern Ireland and the budget. We know that those negotiations are in the process of stalling somewhat and Theresa May will give an important speech tomorrow in Florence to perhaps try and move things on. But two things I'd flag up in this context. Firstly, there seems to be no indication so far that citizens' rights, negotiations and agreements can be ring-fenced in any way. I know that quite a few people would like that to happen so that if there is controversy or lack of agreement over the budget, for example, citizens' rights agreement could still go ahead. Secondly, I'm not seeing too much being said about the European Parliament. Their agreement will be vital because they have to agree with the withdrawal agreement. I should be being kept on them and what their view is. Third and final point, Scotland. Free movement and immigration is of particular importance in Scotland. That point has been flagged up in various reports and various evidence that has been given to this committee. I don't see a great deal of account of that being taken by the UK Government so far. I would flag up two points on this. Firstly, the response that came up very recently by the UK Government to the House of Lords EU Committee on Devolution report, which to me suggested that the argument that was being made for a differentiated settlement for Scotland, a particular reference to immigration, wasn't being taken account of. Secondly, the context of the EU withdrawal bill. I know that the First Ministers have written a letter and there will be amendments put to that bill. Some of the EU competences, which will be returned after Brexit, according to the EU withdrawal bill, will be held in some sort of holding pattern by the UK Government. Some of those competences have specific reference to citizens' rights. For example, free movement of healthcare, migrant access to benefits, recognition of professional qualifications. Keeping an eye on the withdrawal bill is also very important in that context. Those are my opening remarks. Thank you very much, Professor Douglas Scott. On those three areas, I wonder if I could just go back on some of them. When you talk about ring fencing citizens' rights, are you suggesting that the way things stand at the moment, even if we appear to get some kind of progress on citizens' rights, if the whole deal falls through, the citizens' rights could fall through and we could be back to square one, effective one? That is my impression. I may misunderstand what is going on. I do not have an inside ear to the talks, but I know that Brussels has said in the past that nothing is agreed until everything is agreed. The EU budget has seen it as being a particularly important point. Certainly, when there has been talk about Theresa May's speech tomorrow, the focus seems to be on what she might be offering in terms of the budget, particularly in the context of a transitional deal, rather than citizens' rights. However, it would be possible to come to a separate agreement. It is possible in the law to do that on citizens' rights. However, I have not seen any great will on either of the sides to do that so far. Your second point that you made was on the issue of the European Parliament. You said that not much had been said. Mr Barney, who this committee met last week, was very strong on paying attention to the European Parliament. I believe that he said that in his last press conference that one does not ignore the European Parliament's important role in signing off this deal. When you say that not much has been said about the European Parliament, you are not talking about from Mr Barney's point of view or are you talking about from other quarters? Possibly not. Although I think that the European Parliament so far would have less to object to from the proposals that are coming from the EU side, but even there, regarding the situation of UK nationals in the EU, there are a couple of things to be worried about that the European Parliament might not be so happy about, including the question of free movement within the European Union of UK nationals who are situated in another country. I think that it is important for the UK Government to bear in mind that there has to be this vote in the European Parliament, and Guy Verhostat, who is very influential in that regard, has certainly been making a lot of comments about the role of citizens. Would Dr Locke or Dr Zane want to comment on those specific points? I agree with what Professor Douglas Scott has said about EU citizens rights being bound up in that whole package of issues that will need to be resolved in the withdrawal agreement. Apart from the economic issues that would result in economic problems that would result from a no-deal Brexit, I think that one of the most worrying results would be the situation of EU citizens, who are already facing quite a considerable amount of uncertainty because they actually do not know what their status is going to be in 18 months time. Of course, that uncertainty now seems to be translating into difficulty finding jobs because employers do not know what their situation is going to be like in 18 months time and difficulty finding housing even because their landlords seem to be reluctant, according to media reports, to take them on as tenants. That would be a huge problem for both sides, and I think that there is an absolute need to come to an agreement here. Dr Zane? Yes, I agree with everything that has been said so far. Maybe just to pick up on two of the points. One is about the status of EU citizens changing after Brexit, and I assume that I will come back to this in questions, but I think that this new category of settled status is particularly problematic in that regard for a whole host of different reasons that I assume we will get into, but maybe just on a very basic level because it creates legal uncertainty for landlords, for employers, for the NHS, knowing whether they can treat an EU national and on what grounds post-Brexit, depending on what status they fall into post-Brexit. The other thing, maybe just to flag up in relation to the EU withdrawal bill, is that I assume that a lot of the detail in relation to settled status and what the requirements will be for that will be contained in the immigration bill, which will come out at some point in, I assume, the near future. I wonder how feasible it is to come to a deal between the EU and the UK on the future of EU citizens rights when a lot of the questions about how settled status, for example, will be dealt with are not clear at the minute and I assume will be in a bill that is forthcoming at some point. Since you are on the topic, could you tease out a bit exactly in your view that the problems are with the settled status proposed by the UK Government? Yes, I can start. I think that there are a number of problems with the idea of settled status. For a start, I do not really see the point in it for existing, for EU citizens who are here and who at the cut-off date, which we do not know when that is going to be, but if we assume it will be 29 of March 2019 for want of any other better date. Anybody who has permanent residence up until that date will have to, under the UK Government's proposals, apply for a new category of settled status. It is not clear what the criteria will be for that settled status. Will it be the current criteria contained in the Citizens Rights Directive? I think that there are hints that it will not be. What will the criteria be for that status? What kind of identification will be needed? The Home Office leak document suggests that the UK Government will only accept passports following Brexit rather than identification cards, which are forms of identification that a lot of EU citizens would use in order to live and work in the UK. What will the fees be for the settled status? I notice that in the joint technical note that the European Commission has prepared, it seems to suggest that there is agreement between the parties on the fees, but actually if the UK is to apply the current fees that it applies to third country nationals, then there is no agreement because those fees are prohibitively expensive. It is not clear what the fee structure is going to be. It is also not clear to me in terms of the settled status, what the role is going to be about temporary absences. For anybody who has arrived pre-Brexit or during the transitional period, how will, for example, periods of unemployment be dealt with? Will they be dealt with under the current EU rules, or will there be different criteria taken into account? What about somebody who is a part-time student and a part-time worker? At the minute, under EU law, they could apply as a worker as long as it is a genuine economic activity, but how will that mixed status affect any application for settled status? EU citizenship, at the moment, is a fluid concept. You can be a student one day, you can be self-employed the next week, and then you can be a worker, and then you can be a self-sufficient EU citizen. None of that affects your status as an EU citizen in the UK and the rights that you derive from that, but how will that work under this settled status? I could go on and on, but I'll maybe stop there. Thank you very much. I think that I'll pass on to Lewis MacDonald now. Thank you very much. There's clearly a lot of questions about the negotiating positions on both sides, and I think that there's an issue around, I think that Shona Douglas-Cott has already mentioned, freedom of movement for UK citizens within the European Union. I think that Dr Locke has particularly highlighted the question of whether the European Union's negotiating position proposes more favourable circumstances for EU citizens within the United Kingdom than apply to UK citizens, for example, in terms of family reunification, and the UK's position of refusing to set a date on which any of that applies looks very much like a negotiating chip rather than a serious proposition that Brexit should apply for this purpose from this year rather than two years' time. I wonder if witnesses would comment on how far we're seeing negotiating positions that are in place to be traded away and how far there are serious obstacles to actually reaching agreement on this going forward. I think that if you look at the document that the European Commission has produced with the red amber and green lights, it's quite interesting to note that, on the one hand, the EU position is what I would call a maximalist position for EU citizens at the moment. They want indefinite conservation of the status of EU citizens who've exercised their free movement rights to come to the UK, including all those additional rights. Apart from the right to remain, which is uncontroversial, additional rights like right to family reunification without having to meet the income threshold that non-EU citizens currently have to meet in order to bring their spouses into the UK and lots of other things. At the same time, the EU's position on UK citizens is a little bit less generous, if you will. There is a box where the UK asks for the full free movement rights of UK citizens, including the right to now move from the member state that they're currently in to any other member state in the EU into the future. If, after Brexit, a British citizen who's currently living in France decides to take up a job in Austria, they would, under the EU's proposal, not be able to do so, at least not under the withdrawal agreement. They would have to meet Austrian immigration rules. Under the UK's proposal, they would be allowed to do so because they'd continue to benefit from all their EU rights. Of course, I think that there's a certain inconsistency in the EU's position in that regard. I would imagine that that is one of those areas where the EU might budge and give the UK this right for UK citizens in return for some concessions on, say, the rights of EU citizens in the UK. I think that these are areas where you can see that there's room for movement, and there will be movement in the end. Is it fair to say that the issue of jurisdiction of the European Court is in a different category and maybe something that the European Union cannot compromise on and that the United Kingdom cannot accept and, therefore, under its current government policy and, therefore, we have there perhaps a more difficult obstacle to reaching agreement in this area? Possibly. I think that there will be, from the EU side, and I think it's probably a reasonable demand that there will have to be some sort of dispute settlement agreement, very broadly speaking, because if you look at, especially if the UK's proposals about settled status as a completely new status are introduced, it will hardly be acceptable for the EU to say, oh, okay, I mean your courts can decide whether this is in compliance with our withdrawal agreement and we're not going to have any external body looking at this. But whether this external body has to be the European Court of Justice or whether it could be some other external body is a different question. Now, taking one step back, if you look at the rights of UK citizens in the EU, these cases say a UK citizen after Brexit gets into trouble with the law and Germany decides to kick him out and send him back to the UK and he will say, well, no, I've got these certain rights under the withdrawal agreement. I was a permanent resident and, therefore, there has to be a certain seriousness of the crime and of the danger that I pose to society and that is met. That case will, of course, go to the German courts but they will still be able to refer the question to the Court of Justice because the Court of Justice will be able to, in all likelihood, will be able to interpret the withdrawal agreement. It will consider that to be part of EU law and integral part of EU law, as they call it, and they will reserve the right to interpret it for the EU. So, what if there's a similar situation of an EU citizen living in Britain after Brexit? How is that going to happen? Well, yes, of course, they will have to bring their case before the immigration tribunal or wherever, whatever tribunal will be competent to hear it and it will go through the courts in the UK but I think the EU will require some body, either an international law body or perhaps, if we're luckies, if you want, some specialised tribunal within the UK even that promises to follow the ECJ's judgments in substance, at least on these questions. The UK might accept that, the EU might accept that, perhaps, as a compromise solution but there will have to be some way of independent, say, review of or independent adjudication of the withdrawal agreement and of these rights under the withdrawal agreement for EU citizens living in the UK. I think that that will be the bottom line of the EU's position and the UK's position, obviously, with the Prime Minister having formulated a red line as far as the direct jurisdiction of the ECJ's consent, which is not a technical legal term, it doesn't make any sense but I think what she means is that there cannot be a UK case that is adjudicated by the ECJ itself. It can be a different body, it can be a different international body, it may even apply the same law and it may even follow indirectly whatever the ECJ is saying in substance but it can't be the ECJ itself. So I think there is room for compromise, it'll be a technical challenge and maybe it'll create a monster in adjudicative terms but it can be resolved. I don't have other witnesses I've ever given. Well, I completely agree with what my colleague has said. I just add a couple of short comments. Firstly about how much room is there for agreement or compromise. There are bits and pieces where the EU and UK are differing but I suppose the fundamental difference is that the UK foresees a totally independent new settled status in UK law. That's so much as clear and that is pretty fundamentally different and in some ways it's quite understandable. Britain will have left the EU. The whole point was to apply Britain's own laws and the UK government said that equality with nationals should be the basis. So why should it be the case that an EU citizen, say 20 years from now, should have a more favourable right to bring in their foreign national spouse than a UK national? So one can see to a certain extent the UK government's approach there but that is a very basic difference. The status of the citizenship is going to change. EU citizens will not have the same rights. When it comes to enforcing those rights clearly that's really really important and I just add two short comments to what Dr Locke has said. Firstly I think the withdrawal agreement if it's concluded has to be really really clear and the EU has said that it should have direct effect. The UK has not said that and to have direct effect would mean that that agreement could be directly enforced in UK courts without any need for an intervening act of the Westminster Parliament. But the UK is a dualist country which means that we enforce international treaties through acts of Parliament. So there is a difference of opinion over that and caught in the middle are those citizens who may have concerns about their rights being violated and what are they going to do. It's all very well I think to say that there may be compromise on the CJEU having some sort of role but we have to remember the court itself and the court itself hasn't been always very cooperative and Tobias knows more than anybody I think about the recent accession agreement to the European Convention where it was the European Court of Justice who stepped in and said no this won't do. This conflicts with certain aspects of EU law and it is autonomous and we should have the final say. So I think that that is a problem to think about. It was just really to tease out and move on from Lewis MacDonald's question there. Dr Locke in your written evidence to the committee you talk about I was according to our call 344 TFEU about the dispute resolution you said that this means that the EU cannot conclude an agreement with a third country such as the UK in future which would hand over such jurisdiction to a court other than the ECJ. So do you think that that's something potentially that will the EU stick to that position then or do you think there will be room for maneuvering on that point? What I mean by this is that the proposal that has been mooted by some and I think it was probably on some blogs or whatever that you could have a joint international court that will decide about these rights in a binding manner both for the EU and for the UK which would seem to be the fairest option in many respects is I think constitutionally impossible under EU law and it is something the EU simply cannot agree to because they know if they do the ECJ will come around and say this is invalid. So that is one of the I mean it's just one of those and that's why we are likely to get kind of a bifurcated system where we have two courts like we currently have under the EEA agreement there an attempt had been made to have one common EEA court that would decide both for the EU and for the other countries Norway, Liechtenstein those and the ECJ struck it down and said when we can't have that we have to be the ones interpreting EU law. Now of course there could be it could of course be that the ECJ will change its mind on these things and you never know with courts they find ways of distinguishing earlier precedent but I don't think the EU is going to risk that and agree an agreement that they can't constitutionally comply with and that will then have to be reopened for negotiations so I think the EU is very much aware of this and I think there's one important aspect to bear in mind about the negotiations as a whole is that there are certain constitutional limits to what the EU negotiators can agree and they're not political limits they're not set by the council they're not set by Mr Barney or by any anyone else but they are contained in the treaties and unless and that's not going to happen the EU member states went ahead and said we are going to put this into the treaties that the ECJ must not interfere with our agreement with the UK under any circumstance there's something along those lines this there's certain limits that can't be negotiated away so I think that is important to realise. Sorry I don't know if that's something that the others want to comment on as well. I don't want to comment on the specifics of what external tribunal whether it's some kind of joint committee arbitration whether it's the CJEU or something that approaches the after court but I would like to say something at some point and I don't know if now is the appropriate time about enforcing people's rights because I think the situation will change quite radically after Brexit in the UK and it's important not to forget that and to think about how they can be enforced so I don't know whether now or maybe later. Okay thank you. We took some really interesting evidence last week I don't know if you were able to catch any of that but one quote we had from Professor Sir David Edward said it is a bizarre kind of dream wish that we can play on this playing field on equal terms but still have our own referee it's just absurd in reference to the UK's position in certain areas do you think that that's a fair assertion to make in terms of the UK's position at the moment or? Well I do think it's fair but given that the whole implication of Brexit is to take back control there will be a lot of people who will be very disappointed if the outcome does not involve a much greater competence for UK authorities and this comes to the the point I was trying to get at which is at present if you are a EU citizen in the UK and say you've got a wrongful notification from the home office like happened quite recently a hundred people were sent errors telling them to leave the country you get one of those you can go to the UK courts and enforce your rights there your EU rights there you don't even have to go to the European Court of Justice if the point isn't contentious but after Brexit that will go and if there's an argument that the UK specifically the home office is doing something that contravenes the withdrawal agreement there's this huge question of what's going to happen I mean who is going to determine whether that interpretation is in line with the withdrawal agreement or not and UK courts might say well this is international law and you know we can try and observe it but if we are faced with an act of parliament we have to apply that act of parliament and this is where a joint committee or some other tribunal would be very very useful but then you come across the obstacles that Dr Lot referred to of the idea of the autonomy of the ECJ and whether that would be permissible and there's also the point that I think David Edward has made that if we have a a third type of tribunal how's it going to be funded how many personnel will it have who will be its judges who will appoint them how much will this cost and so on and so on I think that's one point that does make me really concerned for the future I think given all the questions you've raised about settled status as well and the fact that we'll have million well millions of EU citizens applying potentially applying for the settled status how will the home office deal with that cope with that in light of everything that will have to be set up to deal with that as well as it's a very complex situation thank you thank you Ross Greer relatively brief question the UK government isn't really capable of fulfilling its own position on this is it and on a purely logistical basis the demand that they would create simply far outstrips the capacity and we would result in astronomical waiting times for european citizens currently living here to have any applications processed I think that's right I mean if I read a statistic last week I think that at the minute at current levels it would take the home office somewhere between 30 and 140 years just to process permanent residence applications at the current rate at which they're doing it I mean I think the easiest thing for those and I was reading through the report that the committee this committee produced on citizens rights a lot the majority of EU citizens in the UK and certainly in Scotland will have been here for longer than for five years or longer at the point that the UK leaves the EU in March 2019 so I think the easiest thing really would be to and a lot of those from anecdotal evidence seem to now be applying for permanent residence so why not just simplify your life and say that you can send in your permanent residence card and receive settled status or indefinitely leave to remain and just slot citizens into the current immigration system I think that would make the most sense that's a point I would have made and I think also just the fact that the UK government is saying the process will be streamlined and efficient but so far what we've been saying from the home office is the reverse misinformation and errors that makes one a bit skeptical about a future streamlined process. It's just a question regarding residence rights now in evidence that we have received from the UK law societies they state that residence rights alone may become meaningless if not accompanied by the right to continue economic activities. Now the situation particularly with multinationals is that there's a growing number of people who have worked from home but the particular office that will be located towards might well be in a different country within the EU and how do you think this situation will actually be resolved or do you think that there is an understanding of this type of situation that does exist? I think that so in your example would it be somebody who say works from home in the UK but whose actual place of work is in Germany for example? It could be somebody who might work for IBM and they used to work in the office in Paris or whatever but they do love somewhere in the UK and because of a restructure they now work from home. Yes I suppose the answer to that would be when they started doing that in the UK so whether they would fulfil the residence rights in order to get the settled status the residence criteria in order to get the settled status which according to the proposal that we have from the UK Government would give them equality with UK nationals I guess to then continue to work in the UK even if they're working as a virtual worker so working from home. I'm not I suppose the other question that comes into this are frontier workers who maybe live in one place and work in another I am not sure that I can give you a satisfactory answer on how they would be dealt with I don't know if either of you have views on that. Those of them have been frontier workers at the cut of date they will probably be caught by that agreement but I think it is and if you look at the at that red amber green document of the of the European Commission they have they seem to have a reached agreement on frontier workers what exactly the agreement is I don't know but I suppose that their status will continue as it was there is of course an issue perhaps with evidence because they might not be able to produce it as easily as workers who are resident here who have got I don't know a mortgage and they can show that they've lived here for X amount of time and that they've worked here for X amount of time might be more difficult with frontier workers but I think these are practicalities which should be should be possible to sort it out but I think what the situation you mentioned is an important one because that is probably quite quite common and especially with with spouses of people who are currently working physically working in the UK and you know they might have they might come along and and do their work from home because they weren't able to relocate or weren't able to find a job in the UK that was adequate for them. Can I just add something that I think frontier workers is important here and the negotiations are extremely vague on that. Secondly though moving away from the negotiations if we are talking about somebody who is working from home say in Scotland and has some sort of is providing some sort of service in Germany if they can show they have a property or a contractual rights on private law right they may be able to rely on acquired rights or on the European Convention to enforce that the right to some sort of property because article one of the European Convention covers the right to property so they may have a claim against the UK government on that basis. Of course litigating is probably the last thing they want to do but it shouldn't be forgotten. That's helpful thank you. If I could just come in on a supplementary there I mean notwithstanding the very specific point that Stuart McMillan made understanding is that the UK law society's point was that they were concerned that there wasn't a right to continue economic activities there were only residents right so it's actually broader than that specific example isn't it it's about the right to engage in cross-border business activity so are you saying that that's that you share the concern in the UK law societies that those rights aren't properly entrenched? Yes I think so but this raises another point about the free movement of services and freedom of establishment which are related rights that EU citizens also have you know the freedom to set up a business in another country the freedom to provide a service and one category of workers that is mentioned in the proposals or posted workers now the EU has said that posted workers will not be dealt with under citizens rights because they fall under free movement of services rather than under the citizenship provisions and the free movement of workers provisions on the treaty whereas the UK wants posted workers to be included in citizens in the citizens rights discussion and I do think that it is it is not just it is concerning that the citizens rights paper doesn't take into account all of the all of the ancillary ancillary rights I suppose that EU citizens benefit from such as to provide a service or to set themselves up and as far as I know we haven't seen a UK position paper on either of those areas and I would imagine I'll get even more complicated in the future because all the free trade agreements that the EU signed do not cover services free trade agreements don't cover services so can you see a particular problem developing for people engaged in service industries? If that includes a cross-border aspect of it, yes, yes, I do see a problem in that area. I mean there is the option post Brexit the EU has adopted certain directives in relation to for example intercompany transfers that might then come into play for British workers who were working for short periods abroad and coming back but those are directives that are based that are aimed at third country nationals at the minute and they can they don't contain nearly as many rights positive rights for workers who are being transferred or who are being sent into the EU as are currently protected under citizens rights. Thank you. I had to follow up on the potential alternative to the European Court of Justice mentioned by Dr Log. As I understand it, there's a bifurcated system where there's a separate court that exists for potentially disputes between EU members and presumably the European Union. That potentially might be a template going forward as a compromise between the EU position and the UK paper. Could you briefly talk us through what that involves, what the functionality of that separate court? Sure. As you know, there is the EFTAL, the European Free Trade Association, which has four members, Liechtenstein, Norway, Iceland and Switzerland. Three of them, all but Switzerland, decided to join the EU and the EU member states in the European Economic Area, which basically extends the single market, very simply speaking, to those three countries but not to Switzerland. The court that is in charge of looking after those three EFTAL countries issues arising in those three EFTAL countries is called the EFTAL court. It's a bit of a misnomer, it should be called the EEA court or something, but it's called the EFTAL court. It's also in Luxembourg and it works in a fairly similar way to the ECJ in that the courts of Liechtenstein, Norway and Iceland are allowed to ask the EFTAL court for interpretations of EEA law, much like the courts of the EU member states are allowed to ask the ECJ. The main difference is that this answer they get back is not strictly binding on them. It's an advisory opinion rather than a binding judgment, which is what we get from the ECJ, so there's one difference. Now, of course, the EFTAL court interprets broadly the same or often exactly the same rules as the ECJ, so a lot of EU regulations will have been translated into EEA law and will be binding on EEA members. In those interpretations, the EFTAL court is only, strictly speaking, bound to follow everything that the ECJ has done before 1992, when the EEA agreement entered into force. Much of that is still relevant, but some of it is no longer relevant because the legislation may no longer apply. As far as new ECJ judgments are concerned, the EFTAL court, in practice, will follow them if they apply to the EEA. They are not technically bound, strictly speaking, but they do follow step in order to achieve the overall aim of the EEA agreement, which is homogeneity. The single market is supposed to work in the same manner in Norway and in France. There shouldn't be any difference for operators. That's the whole point. The only reason we have the two courts is because the ECJ threw a spanner in the works in 1991 and said, we have to decide for our part, for our, well, now 28 member states what the EEA agreement means, and you can decide yourselves, but please follow us as far as you can. I think that that is the main difference between the two courts. There is evidence that the EFTAL court does not always follow the ECJ. Of course, cases come to courts in a random manner, and often the EFTAL court will be the court first asked a certain question. There may not be any ECJ precedent, and it will have to answer it. There are situations where the EFTAL court, especially on immigration where it deviates a little bit from the ECJ, because there is no EU citizenship in the EEA. The EEA has free movement of workers, it has freedom of establishment, but it doesn't have the added umbrella of EU citizenship, which gives certain, well, which gives an additional status. I mean, the rights, really, the individual rights are not that different at all because EEA will accept, broadly speaking, whatever is in the citizenship directive. However, the overall aim of achieving EU citizenship and what the ECJ calls the fundamental status of EU citizens being EU citizenship does not apply in the EEA. There is some evidence of the EFTAL court deviating from the ECJ case law in those cases on those grounds. I wanted to come back on the question that I asked earlier about whether there was an element of bargaining position from the EU's approach on a number of areas. The most obvious example, it seems to me of a bargaining position from the UK point of view, is this question of what is the cut-off date. Currently, as I understand the UK position, anyone who has arrived here since March from another EU country will not know at this juncture whether the UK is proposing or not proposing that they should be eligible to apply for settled status, for example, or that any of their other provisions of the withdrawal agreement will apply to them, and that seems to be on the table as presumably a negotiating chip. Can I ask what is the consequence of that uncertainty? Because we do not yet know when the cut-off date is going to be, what does that mean for those citizens and what does that mean for the overall shape of the withdrawal agreement? Part of that would be a question that is not legal, simply about how that impacts on the everyday life of those people living in a state of uncertainty. Moving to a legal impact, I guess that something the UK should bear in mind is that there might be claims brought under the European Convention, article 8, the right to respect for one's private life, on the basis of uncertainty and stress that could be caused by not knowing what one's status is, and that should be borne in mind. Article 8, I think, lies behind a lot of the discussion on citizens' rights because it does cover the personal private life of people, so that is relevant to bear in mind. It is being used as a bargaining chip, I agree, and I don't quite know legally what one could do to change that situation. It seems to be a political matter of negotiation and discussion. Is the UK's position potentially inconsistent on this matter with its position on other things and the legal position of other things? Presumably everything else, trading arrangements, existing treaty obligations will all come to an end on a given day, probably on 29 March 2019, but at the moment, potentially, this may be out of step with all those other obligations. Is that legally defensible position in its own right, in its own terms? Perhaps just as an add-on, I mean, I can leave your question, so it's almost, I would say, the answer is, yeah, well, I mean, legally you can have different regimes for everything if you so choose, but it would of course create an inconsistency, a logical inconsistency, and of course we mustn't forget that under the current legal position, EU citizens have a right still to come here to take up work, to do whatever else they were able to do before March 2017, or indeed before the EU referendum was ever mentioned, and that those are rights under the EU treaties, and they continue, they will continue to be protected up until the moment that the UK leaves the EU, and I think there is a, I mean, I think it's a general almost principle of law that we have always have to be very careful when it comes to the retroactive and retrospective application of new rules, and there have to be very good reasons for them, I mean, in criminal law they are always prohibited, you can never do that, and I suppose because immigration status goes to the very heart of a person's private, or a person's life, because you know they don't know where they're going to live and how they're going to earn their living in the future, it goes to the very heart of a person's existence, I would be very careful with that also, especially in light of the human rights law and the European Convention on Human Rights, I mean, there is some precedent on say expulsion and article 8 of the European Convention, there's also a precedent on the deprivation of permanent residency in the aftermath of disintegration of Yugoslavia, where certain individuals simply lost, because they had the wrong citizenship, they were Croatians, but they were living in Slovenia, which of course before the dissolution of Yugoslavia didn't matter, because it was the same state, and they were deprived of their status as residents, and even though there was a registration period and all of that, but they missed it for various reasons because they were in hospital or they didn't know about it, and the European Court of Human Rights intervened and it said, well this is contrary to their right of family life, now these are extreme circumstances and not every change in the status of EU citizens will automatically be a violation of article 8 of the European Convention, that's not the case, but I think retrospective arrangements are always very suspicious from a legal certainty point of view and from a rule of law point of view, and that is where one might win in Strasbourg. Can I just add something, as if we don't yet know what the exit date will be, the EU withdrawal bill says it's for a minister to determine and in fact they could determine different exit dates for different aspects of the law under that bill. Maybe give one example where it might make a legal difference as to when the cut-off date is and that is in relation to family members, especially so in relation to family members of EU citizens in the UK because the UK's position paper and the EU's one makes a difference or differs between differentiates between current and future family members, and the cut-off date will be the date at which it is determined whether somebody is a current family member or a future family member and the implications that that has for it, but not just for EU citizens in the UK, but also for UK citizens in the EU who will want to come back either with an EU family member who will after the cut-off date be a third country national presumably and will have to apply for a visa under the immigration rules and also for a UK citizen who is coming back with a third country national spouse from another EU member state who at the minute if a UK citizen has lived abroad in another EU member state and then comes back is exercising their citizenship rights so he could apply for a visa for their third country national spouse under EU rules on family members, but that will not apply after the cut-off date so they will then have to apply under the immigration rules, which has serious cost implications and also serious implications in terms of that family member's right to work. So if the UK Government wanted to avoid a complete legal minefield it would abandon any proposal for a cut-off date that was earlier than the date of withdrawal from the European Union. Or maybe just to give legal certainty as to when that cut-off date will be. If that cut-off date is earlier say it's March 2018 then that's fine if they announce that tomorrow because people can then work with that and know what the implications of that might be. But I think this uncertainty which almost suggests that the cut-off date might have been almost six months ago creates havoc for individuals' lives but also for landlords or employers and so on. Thank you very much. What are the implications of the talks collapsing without the deal? Not very good. Well I mean I think there would be there would be legal uncertainty well that goes without saying but I think what would happen is that on 29th of March 2019 the UK would leave the EU. It would no longer be an EU member state. EU law would cease to apply to the UK. It would no longer be directly applicable in the UK. Now and the same would go for EU law as far as UK citizens are concerned in the rest of the EU presumably. Now what would need to happen I think on both sides would need to there would need to be unilateral rules dealing with the fallout of all of this and some of these rules will have to relate to the status of EU citizens living in the UK and UK citizens living in the EU. What is their future status? Now under the EU withdrawal bill in theory the citizens rights directive well I mean there will be a separate immigration bill but I imagine that a lot of these rights could simply be transferred into UK law and if the government was in a benign mood it could decree that these rights will continue and everything will be fine. The same could be done at the EU level of course but there is no guarantee that that will be the case and there is almost is almost certain that the rights of UK citizens in the EU and EU citizens in the UK will differ which is something that I think both sides at the moment will want to avoid but yeah and and and we don't know and I think I mean I I'm not sure if everyone agrees but we don't know what the whether there are broader protections out there either in the common law for people who've exercised rights in the past and are now deprived of them. We don't know we don't know whether under EU law for UK citizens living in the EU law will still apply somehow they will still be able to go to courts and there will be references to the European Court of Justice asking so what happens to somebody who's lost their EU citizenship because their member state has left the EU can they still rely on something like acquired rights or but there's there's absolutely no certainty on that point at all so we would have to wait and see. I think the one point I'd add to that is that there might be a difference between the situation of EU citizens in the UK and UK citizens in the EU in that the EU has EU rules for third country nationals and there is a long-term residence directive so that might apply to UK nationals say who've been in Spain for five years or more and so their situation might be a bit more certain than that of the EU nationals in the UK. Now those EU rules are not nearly as generous as they are for EU citizens but they do provide a level of protection and they even provide a level of protection for free movement for certain types of long-term resident to go from one member state to another. The problem is that they generally protect residents who can demonstrate that they have a stable income of a certain amount that have been resident for more than five years so they would cover those in the better off categories not say somebody who'd gone to work as a barman or somebody in Spain, something like that. I agree with the previous comments. I would assume that for UK citizens living in the EU in the event of a no deal that they would eventually fall under limited EU rules on third country migration and or the member state rules in the member state that they find themselves in. There are certain common rules at EU level on third country migration around students, researchers, highly skilled migrants, inter-corporate transfers and very limited protections for seasonal work. Obviously, there's the long-term residence directive. For a lot of those rules, there is limited equal treatment or no equal treatment. There are limits on the amount of work that you can do, the kind of work that you can do, the extent to which you can move employers. I think that eventually it would just fall under the common rules. Thank you very much for coming to give evidence today and we will now go into private session.