22
Examination of witnesses
Dr Eleni Frantziou, Professor Colin Murray and Professor Brice Dickson.
Q1 The Chair: Good morning, and welcome to this public meeting of the Northern Ireland Scrutiny Committee.
Before we start the substance of our evidence today, I wanted to say something on behalf of the committee about what has happened in the last two days. Today, this Northern Ireland Scrutiny Committee of the House of Lords is commencing an inquiry concerning human rights and equality issues in Northern Ireland, with specific reference to Article 2 of the protocol to the Windsor Framework. The committee would like to express sadness at the awful incident that started the events that followed yesterday in Northern Ireland. On behalf of the committee, I express our sadness concerning the violence that broke out yesterday in Belfast, which has required extensive intervention by first responders and the relevant public authorities. We add our voice to the widespread concern arising from yesterday’s events. The appearance of such violence on the streets is deeply unwelcome. In our work as a Select Committee, we will take into account any material lessons that can be learned from this regrettable episode.
I am now going to make an introduction to our evidence session today. We are holding the first public evidence session of our inquiry on Article 2 of the protocol to the Windsor Framework, the so-called non-diminution of rights provision. The committee will examine the scope and implications of Article 2 on Northern Ireland and the wider United Kingdom. In the light of the recent Supreme Court decision in the Dillon case, the committee is also interested in the enforceability of Article 2 in UK law and litigation, as well as the UK Government’s, the EU’s and civil society’s expectations of Article 2’s operation and application.
We are joined today by three valued academic experts. Professor Brice Dickson is emeritus professor in the School of Law, Queen’s University, Belfast. Dr Eleni Frantziou, who is with us in the room, is associate professor in public law and human rights at the excellent Durham Law School in Durham University. Professor Colin Murray is professor of law and democracy at the nearby to Durham and also excellent Newcastle University. You are all very welcome. We very much look forward to your evidence. We would be grateful if you could introduce yourselves briefly the first time you speak.
Today’s meeting is being broadcast. A verbatim transcript will be taken for subsequent publication, which will be sent to witnesses for you to check for accuracy. Members of the committee are reminded to declare any relevant interest the first time you speak.
I am now going to move to the first question, which I will ask. Why did the UK and the EU negotiate and include Article 2 of the Windsor Framework in the protocol/Windsor Framework? How does Article 2 relate to the Belfast/Good Friday Agreement, in particular its rights, safeguards and equality of opportunity, or RSEO, provisions? Shall we start with you, Dr Frantziou, as you are here in the room?
Dr Eleni Frantziou: I am an associate professor in public law and human rights. My area of expertise is EU fundamental rights. This will be the perspective that I will be giving to the committee today. I have written extensively on the direct effect of EU fundamental rights and the EU Charter of Fundamental Rights, including a monograph on the horizontal direct effect of those provisions. I have also authored three reports on the status of fundamental rights in Northern Ireland following Brexit, as well as other research on the relationship between the UK constitutional order and the EU constitutional order after Brexit. I will focus on that area of expertise, rather than commenting on some of the more domestic matters that are raised in the questions today. Thank you very much for the opportunity to provide evidence.
Relating to the first question, it was common ground between the parties in the negotiations that European Union law provided a supporting framework for the rights, safeguards and equality of opportunity part of the Good Friday agreement. This is mentioned not only in the Q&A that the Commission has prepared but in the preamble to the Northern Ireland protocol, as it then was, now known as the Windsor Framework. This highlights that membership of the EU by both Ireland and the UK contributed to the peace process and that EU fundamental rights had, as a web of rights, provided a framework within which the RSEO was made more effective. Article 2 was introduced as a guarantee against regression from the supporting framework of rights that was in place under European Union law.
The Chair: Do either of the other witnesses want to contribute at this stage or comment on what Dr Frantziou has said?
Professor Brice Dickson: I am a non-executive member of the Independent Commission for Reconciliation and Information Recovery, which was a party to the Dillon case that we may be discussing later. I am speaking here in an entirely personal and academic capacity and not on behalf of that commission.
The basic answer to the question asked here is that the provisions in Article 2 were written there because of the potential, indeed the actual, I think, lack of trust that had developed between the EU and the UK in the negotiations leading up to Brexit. There had been some commitments of a political nature made by the UK Government concerning the need to maintain the integrity of the Good Friday agreement and the common travel area, but our EU friends were not entirely happy with that political promise, if you like, and instead wanted it written down in a document that would be legally binding.
That is why we find references to the rights, safeguards and equality of opportunity provisions in the Good Friday agreement in Article 2 of the framework.
The Chair: Professor Murray, do you want to say anything at this stage? I should say that we have read articles by all of you, including a recent article that you wrote, Professor Murray. Lord Thomas may have some questions about that article a little later.
Professor Colin Murray: To follow on from what Dr Frantziou and Professor Dickson noted, there is an important benefit for the UK Government in making these legal commitments under Article 2. Theresa May, in her Belfast speech of July 2018, said that the UK was pursuing Brexit on the basis that the 1998 agreement would be protected in full. Article 2 is a reflection of that, in so far as EU law was underpinning commitments in the rights, safeguards and equality of opportunity chapter of the 1998 agreement.
This perhaps received less attention in the Brexit negotiations than provisions on trade or goods. But that is not because Article 2 was not important. It is because the protection was, to take the words of Lord Frost in the 2021 Command Paper on the protocol, “not controversial”. It was something that the UK then was saying it was fully signed up to abiding by.
When you look at Article 2, you have to remember its special place in the context of the Windsor Framework. Under Article 18, the goods and trade arrangements lapse if they are not renewed by the Northern Ireland Assembly. That simply is not the case with Article 2. It is excluded from that process and it remains in place for as long as the Windsor Framework remains in force.
Q2 Baroness Sanderson of Welton: Prior to Brexit, how were the RSEO provisions of the Good Friday agreement protected, or perhaps were they suitably protected by the EU law framework?
Professor Colin Murray: I suppose the RSEO protections make a broad provision for life in Northern Ireland after the conflict. The provision is that society and governance be grounded in the rights of “everyone in the community”, to take the language of the first paragraph of that chapter of the agreement. Those commitments are reflected across a range of law. It is not simply EU law; it also speaks to the European Convention on Human Rights and, separately, domestic law commitments. It is only when you have an admixture of these that you get how the UK’s commitment in an international agreement—the Belfast agreement of 1998—gets translated into rights that are actionable in courts in Northern Ireland.
So perhaps in 1998 the incorporation of the ECHR into domestic law was the most high-profile law reform that accompanied the 1998 agreement and that the UK Government committed to as part of the RSEO chapter, but it is certainly not the only legal measure of relevance. EU law was already providing a range of protections against discrimination, both in ethnonationalist contexts—which you might say are directly related to communal tensions within NI—and wider contexts, from sexual orientation to sex to disability to race.
That EU law was in place before 1998 and has continued to develop since. There are also many areas where EU law was more expansive in its range of commitments than the European convention, particularly in areas such as data protection law and workers’ rights. In a range of different areas of law, EU law was providing the basis of rights protections in place in NI after 1998.
Again, the mixture is very complex because, beyond that, there are also domestic law commitments such as Section 75 of the Northern Ireland Act, which provides for a mainstream equality duty and protects additional characteristics such as discrimination on the basis of political opinion. But EU law prior to Brexit was taking its place in that mixture of legal regimes that was providing rights protection in NI law.
The Chair: Forgive me for interrupting, but I have a simple question arising from what you have just said. Is Article 2 part of EU law or is it imported fully into United Kingdom law and so should be regarded, for litigation purposes, simply as part of UK law?
Professor Colin Murray: Article 2 is part of the EU-UK withdrawal agreement. That is separate from the main body of EU law as we think of it: directives, regulations or even the treaties themselves. But it is an international agreement between the UK and the EU. You might think that, on a basic or fundamental understanding of UK constitutional law, that throws up issues of dualism: what is the connection that brings those commitments in Article 2 into the courtrooms of UK courts? That connective tissue becomes Article 4 of the withdrawal agreement, which makes it clear that commitments with direct effect within the withdrawal agreement—the Windsor Framework is a constituent part of that agreement—are to continue to have effect in UK law as if they operate as provisions of EU law. That is then connected into our domestic legal system by Section 7A of the European Union (Withdrawal) Act 2018, which expressly provides that provisions of EU law covered by the withdrawal agreement will have that effect within the UK’s courtrooms.
There are various supportive provisions beyond that. You can look at Sections 78C and 78D of the Northern Ireland Act 1998, which were inserted into that Act by the withdrawal agreement legislation. They make it clear that Article 2 generated litigable rights in the courts of the United Kingdom, and that the Northern Ireland Human Rights Commission and the Equality Commission could use their auspices, as the dedicated mechanism for the purposes of Article 2, to support and intervene in that litigation.
The Chair: I will move to Lord Thomas’s question in a moment, because it relates to this, but I am getting the impression from your answer—forgive me for being a simpleton—that the simple answer to my question is probably that, whatever the origins of Article 2, we should regard it as part of United Kingdom law. There are difficulties politically in regarding as law something that is not merely United Kingdom law but the law of the European Union applicable in the United Kingdom as well. Why do we need to worry about that?
Professor Brice Dickson: I agree with Professor Murray that the framework is definitely part of domestic UK law. It is also binding on the EU. So, to that extent, it is part of EU law as well.
The question asked by Baroness Sanderson requires us to look at the extent to which the RSEO provisions—I will refer to them like that for shorthand—in the agreement have been protected as such since 1998. That obviously requires looking at the legislation, some of which Professor Murray has mentioned, but also at the courts’ approach to those provisions.
In an early case—Baroness Foster will be well aware of this, as it involves her predecessor, Peter Robinson—the House of Lords, as a court, had to decide whether provisions in the Northern Ireland Act taken from the Good Friday agreement had any kind of binding legal effect. The case was all about whether the First Minister and Deputy First Minister could be appointed outside the six-week time limit for those appointments. The House of Lords, through Lord Bingham in particular, spoke of the Northern Ireland Act as something that should be interpreted generously and purposively, bearing in mind the values that the constitutional provisions are intended to embody. In other words, he was saying that you need to look at the Good Friday agreement, and the provisions in it that were reflected in the Northern Ireland Act, as a political compromise, basically, and against a political background. So you do not take the words literally all the time; you interpret them in the light of the need for stability, power-sharing and peace in Northern Ireland.
That has been reflected in other cases since, to the extent that, when a litigant wanted to rely on the birthright provision in the Good Friday agreement—the one that says that if you are living in Northern Ireland, you can be Irish or British or both—it was taken to the Court of Appeal in Northern Ireland. It held that, although the claimant wanted to be only Irish and did not like the fact that she was being given British nationality against her will, the court decided, well, that’s what the Good Friday agreement says. You can be British or Irish, and you can rely on either of those, but you cannot deny that you have, potentially, both nationalities automatically, and the European Convention on Human Rights, for example, does not contain the right to be only Irish or to be only British.
Again, the agreement was interpreted in a way that may not comply absolutely with the literal approach to it but with the political context in mind. That is what applied in the Dillon case as well.
The Chair: We are going to move to Lord Thomas’s question, and these things will all come together.
Q3 Lord Thomas of Gresford: Thank you, Professor Murray, for your very interesting and informative article. I am going to ask you a series of questions to make sure that I have understood the thrust of what you say; you need not elaborate on your answers.
Dillon is about the application of the victims directive to the proposed amnesty contained in the legacy Act. Is that right? You made the point that, in guidance that was online on the government website for six years, the Government said in terms that the rights contained in the victims directive, the parental leave directive, the pregnant workers directive and measures concerned with the rights of persons with disabilities were “in scope of the UK Government’s commitment that there will be no diminution of rights as a result of the UK leaving the EU”. That is right, is it not? In fact, you pointed out that this was quietly removed from the government website the day after the Dillon decision was announced. The court held that these rights do not meet the test of EU law of having direct effect—that is to say, of being enforceable by an individual in domestic courts. Am I all right so far?
Professor Colin Murray: Yes, Lord Thomas.
Lord Thomas of Gresford: The Supreme Court held that the RSEO chapter speaks at a high level of the generality of civil rights and religious liberties, all concerned with ending sectarian conflict. That is the context that Professor Dickson was talking about, I think. It referred in particular to freedom of political thought, freedom of religion, the right to pursue national and political aspirations, the right to seek constitutional change by peaceful and legitimate means, equal opportunities and freedom from sectarian harassment. These were all said to be too general for the individual to bring an action, based on their particular circumstances, in the domestic courts. Am I correct so far?
Professor Colin Murray: I would make a slight adaptation of that. That bullet-point list of rights is where the Supreme Court said that there could still be a measure of direct effect, although it was taking the position that direct effect could not apply to the broad commitment to the rights of everyone in the community. It said that the requisite level of specificity was reached with regard to the bullet-point list of rights that you set out there.
Lord Thomas of Gresford: But you pointed out that there were other rights, such as trans rights, for example, that were not covered. Is that right?
Professor Colin Murray: If you observe the structure of Article 2, you will see that it contains two obligations. There is a general obligation not to diminish protections of EU law that were in place up to the end of the Brexit implementation period in 2020, but there is also a specific commitment to six EU directives in annex 1 to what was the Northern Ireland protocol, now the Windsor Framework. That includes EU law relating to sex discrimination. In that regard, if we follow the line of your thinking, EU law, and the jurisprudence of the Court of Justice of the European Union, adopts a trans-inclusive approach to sex discrimination, in judgments such as P v S and Cornwall County Council and the more recent Shipova judgment, which is where those issues come in. But they are slightly distinct from the Dillon case, which was about the non-diminution commitment, not the specific commitments made to the annex 1 directives.
Lord Thomas of Gresford: You concluded that the individual’s ability to enforce the rights was thwarted, and that, for an application to succeed on judicial review, which was the Supreme Court’s way of trying to say that they were not thwarted, an applicant must show that the breach of rights in question is apparent in almost all cases across the board, so that he cannot bring an application simply on his own specific facts—he will not succeed with judicial review unless it is applicable across the board. Is that right?
Professor Colin Murray: Again, I would slightly adapt that characterisation. As you said at the outset of your statement, one issue is how much of the Dillon judgment is obiter dicta and how much of it is focused on the central issues in the case. You said at the outset that the issue was the application of the victims directive, and, if you narrow down the point of law, that is where the ratio of the case is found. The issue is that the Supreme Court—
The Chair: Sorry, I am going to stop you both now because we need to move on and I do not want us to spend most of the meeting in the weeds of the Dillon judgment and, possibly, the obiter dicta. I ask Lady Ritchie to ask her question, and then Dr Frantziou to take up these issues, please.
Q4 Baroness Ritchie of Downpatrick: The UK Supreme Court said in the Dillon judgment that Article 2(1) of the Windsor Framework is capable of direct effect in certain circumstances. In your view, what are those circumstances and what rights are covered in them? Dr Frantziou, you have written about the Charter of Fundamental Rights in your detailed document. Do you think that the charter is diminished or protected as a result of the Dillon judgment?
The Chair: May I just add what was intended to be part of question 3? What obligation is imposed on the UK Government by Article 2, as determined by the Supreme Court?
Dr Eleni Frantziou: I will answer the second question first, because it is important and it gives a bit of context to the Dillon judgment.
First, it is important to bear in mind that direct effect and the obligations imposed on the UK under the withdrawal agreement are two distinct things. The Supreme Court’s judgment in Dillon is about direct effect. The withdrawal agreement is about non-diminution. Whether or not that obligation is directly effective altogether is a different matter. If the obligation is directly effective altogether, individuals can bring cases before the court and have the rights given to them by this obligation affirmed by domestic courts. That is what direct effect means.
In situations in which the Supreme Court finds that the obligation is directly effective—which, in short, it will be in many if not all of the cases pertaining to the equality directives, plus, potentially, other areas covered by European Union law measures that fall within the ambit of the RSEO, about which there is a lot more discussion to be had—UK courts must give effect to EU fundamental rights in exactly the same way as they would have done before Brexit.
That means that individuals can bring cases based on, say, their rights under the equality directives, including the Charter of Fundamental Rights, which these directives express—the obligations are given further expression in the directives, but they are primarily to be found in primary law in the EU Charter of Fundamental Rights. Domestic courts must still affirm those, including, where necessary, by disapplying domestic law. That is if the obligations are directly effective.
In the Dillon case, the Supreme Court finds—I disagree with this interpretation, but we can come to that later, if you like—that Article 2 is not altogether directly effective. It is only directly effective, essentially—this is my reading—where the underpinning measures were themselves directly effective, which of course the [equality] directives were.
What the court tries to do, essentially, is apply direct effect to the RSEO section of the Belfast/Good Friday agreement. Of course, this is quite problematic and very difficult because the EU concept of direct effect does not translate very well to that part of the [Good Friday] agreement. This means that aspects of the RSEO—what the court terms the more general parts of the RSEO—will not have direct effect and will not be invokable before domestic courts. It does not mean that that is the end of the obligation under Article 2. Under Article 2, the obligation is non-diminution, and that is a binding obligation under European Union law.
By the way, this is an incorporated agreement that is binding on the European Union and all of its member states. It was intended to be interpreted in exactly the same way in the UK and in the European Union. That was the purpose of Article 4. In EU law, even where an obligation is not directly effective, it is still binding. That means that domestic courts should strive to give effect to it consistently with European Union law, to the extent that that is possible. There is ample CJEU case law on this matter—I can refer you to case C-573/17, or Popławski II, for example.
If the diminution occurs in relation to a non-directly effective right and the courts are not able or willing to interpret it consistently with European Union law, there remains an option for that diminution to be discussed in the Joint Committee on the Windsor Framework, and, if necessary, for arbitration to take place. Direct effect is just about individuals bringing cases to court domestically. It is not about what the obligation on the United Kingdom Government is. That is a separate matter.
To go back to your question on the Charter of Fundamental Rights, Baroness Ritchie, the Dillon judgment is very interesting in that regard because it finds that the victims directive does not apply and so we are not within the ambit of an underpinning measure with direct effect within the ambit of the RSEO. That is the end of the matter because, in order for the Charter of Fundamental Rights to apply, we need a hook on to European Union law, independent of that charter. For example, we would have needed an equality directive or the victims directive to be in play and in scope in order for the Charter of Fundamental Rights to kick in. That is correct and, from that perspective, I think that the judgment is coherent.
However, the scope attributed to both the directive and the charter are a little more problematic, particularly if we consider the CJEU case law on the victims directive, which is very limited. There has never been a CJEU authority on the courts’ jurisdiction and the general scope of application of that directive. Generally speaking, the case law is quite broad and has treated that directive in the light of its purpose and scope, which is to protect victims. It has given it an expansive reading in cases such as Burdene and Gambino and Hyka. But, as I said, there is no clear CJEU authority on the scope of the VRD. From my perspective, when the court finds in paragraph 135 that the directive does not apply, that is a potentially problematic finding from the perspective of European Union law and may need clarification at the CJEU level.
The Chair: I am going to ask Lord Dodds to ask the next question—it is a very practical question—because it is absolutely pertinent to what you have just said. We will then move on to our other witnesses.
Q5 Lord Dodds of Duncairn: I am sure that anyone listening finds this extremely interesting, but it is an extremely complicated and difficult area that is of incredible importance to people in Northern Ireland and across the UK. Drawing on the rights that the Supreme Court concluded fell within Article 2 of the Windsor Framework’s scope, how might a diminution of rights be determined? Can you give an example? We follow you in what you said about what direct effect is capable of and what the obligation of the UK Government is, but, where there is a diminution, what would that look like?
Dr Eleni Frantziou: In Dillon, the Supreme Court follows a three-part test. Previously, domestic courts have followed a longer test, but it is possible to rely on just what the Supreme Court said in paragraph 128 of Dillon: “(1) Is a right, safeguard or equality of opportunity that falls within the RSEO chapter of the Belfast Agreement engaged? (2) If so, did that right, safeguard or equality of opportunity have legal effect in Northern Ireland on 31 December 2020 and was it underpinned by EU law? (3) Was there a diminution of that right, safeguard or equality of opportunity as a result of the United Kingdom’s withdrawal from the EU?”
The critical issue is understanding what falls within the RSEO. That is for the Supreme Court to decide, of course, but, if we are to assume, as the Supreme Court suggests, that the equality directives would be engaged, I can give you a simple example that will not, I hope, be too controversial. I draw here on the report on remedies that we have done; I say that in case anybody wants a bit more detail on this.
Let us say that the UK passes the Almost Equal Act 2026 and that this legislation purports to apply to Northern Ireland. Let us assume that that Act has a section limiting gender equality to the public sector only, so private employers are no longer bound by this duty. Maria, a job applicant, is discriminated against in a private sector post on the basis that she is visibly pregnant. She will therefore have to be replaced soon, so the employer feels that there is no point in appointing her. That would be obvious discrimination on the ground of gender. Under the case law of the EU, pregnancy discrimination is sex discrimination since case C-177/88, Dekker.
Let us now follow the three-part test. Is there an RSEO protection that is engaged? Yes, gender equality in economic activity. That is very clear for the listed directives, but it could of course be applied in other contexts, too. Secondly, was there a right effective in Northern Ireland before Brexit that was underpinned by European Union law? Absolutely. The right did have effect in Northern Ireland before Brexit. There are multiple provisions of European Union law that would apply here: Article 157 of the TFEU; Articles 21 and 23 of the EU charter; directive 2006/54/EC, or the gender equality directive; and, of course, CJEU case law. These measures are directly effective.
Thirdly, was there a diminution of the right? Yes, there is a diminution, because Maria would have been able to claim non-discrimination against a private employer under European Union law but she is no longer able to claim this under the Almost Equal Act 2026. Assuming that that Act is very clear and cannot be read compatibly with the EU obligation that would have existed before, the remedy for Maria here will be the disapplication of that legislation and the application of the previous standard of protection.
The Chair: I am going to ask Professor Dickson this question. Let us take the real world. Say somebody thinks that they have been discriminated against in Northern Ireland. They go to see their district trade union officer and ask them, “Have I got a case here?” Can we reduce these principles, including Dillon, to simple principles that a trade union officer or a local solicitor could answer accurately, rather than having to find three professors who sit on a distinguished panel such as this one?
Professor Brice Dickson: It is basically quite simple. The example that Dr Frantziou gave was perhaps not that realistic, but she was right in how she explained it.
The example I would give is this. Say Parliament decided that we do not have enough people from the Catholic community working in the Northern Ireland Prison Service and so we are going to impose a 50:50 recruitment approach there, in the way that was done for around 10 years after the Good Friday agreement in relation to the PSNI, to boost the number of people from the Catholic community in that service.
If Parliament tried to do that today, that would clearly be unlawful under Article 2 of the Windsor Framework, because it relates to religious discrimination, which falls within one of the directives in annex 1 to the framework and it is a right that relates at least to the right to equal opportunity listed in the RSEO provisions in the Good Friday agreement.
Having said that, I go back to the point I made earlier. The RSEO provisions are very general and vague. The Supreme Court in the Dillon case emphasised that. It was the vagueness of those provisions that meant, in effect, that Article 2(1) did not have direct effect in Northern Ireland or the UK because one of the requirements for a provision to be of direct effect is that it has to be clear and precise, and that was not the case. It would not be the case for most of the provisions in the RSEO part of the Good Friday agreement.
Professor Colin Murray: To be brief, I would endorse a lot of what Dr Frantziou is saying and even much of what Professor Dickson was saying, until we get to those last observations—I think there I depart from Professor Dickson.
When the Supreme Court sought to apply direct effect to the provisions of the 1998 agreement, it was committing a category error. It applies litigation called Demirel, which is about an EU association agreement, whereas the 1998 agreement is not an EU treaty and should not be treated as though direct effect is applying to it specifically. Doing so effectively doubles the burden of direct effect on applicants before the court, because they have to show not only the direct effect of specific EU measures but direct effect in the context of the RSEO chapter. That makes that chapter much more difficult to rely upon.
Again, we return to some of what Lord Thomas and I were discussing about the weeds of the judgment. Even in those weeds—and they might be obiter dicta—there are other hurdles that, if the Supreme Court’s language is followed through, would make other cases more difficult.
I will give you the example of the pregnant workers directive and ask that you consider general UK legislation that limits the rights contained within that directive, or seeks to reduce below that standard. That is what we are talking about with the non-diminution commitment. It seeks to backtrack on a commitment that was previously enshrined in EU law while NI was part of an EU member state. You could, in that context, say that this is not one of the annex 1 directives, but it directly relates to one of the bullet-point lists under paragraph 1 of the 1998 agreement’s RSEO chapter. In doing so, it would fit that hurdle that the Supreme Court has imposed in this judgment. But the court also includes language about all those bullet points being related to a communal or sectarian conflict. It is very hard to see the pregnant workers directive in those terms. Again, it risks a misreading of that section of the 1998 agreement. If you are talking about equal opportunity in the workplace or the rights of women to participation in society, those are not issues that immediately speak to the sectarian conflict.
Potentially, some of the obiter dicta in the judgment—this was a five-judge unanimous decision made by the Supreme Court, so these obiter dicta will have a lot of weight in the lower courts—could start to limit exactly the ambit that you are talking about: what happens when a trade union adviser tries to say to people, “What rights do you actually have under these arrangements?”
Lord Dodds of Duncairn: I wanted to follow up on that. The Supreme Court judgment set out the three tests, and so a right had to exist prior to Brexit. There is an argument about dynamic alignment as the EU develops new rights in areas of equality, which the Supreme Court says are within the scope and are directly applicable and so on. If the EU has introduced new rights after Brexit then people cannot rely on those; it is only what existed up until the moment of Brexit. Is that correct?
Dr Eleni Frantziou: This is an interesting and important question. There is a conflict here. What the Supreme Court said in Dillon clearly refers to the 31 December end date and Article 6 of the withdrawal agreement, which provides for dynamic alignment with certain measures mentioned in that agreement. That would include the annex 1 directives—the six measures listed specifically. However, Dillon does not concern those directives. We should be careful to read that judgment as limiting the obligation of dynamic alignment with regard to matters mentioned in the agreement, such as those directives. We would need a case concerning those directives to explain this because, as I said, the matters raised in Dillon do not concern those directives specifically. In principle, they are subject to dynamic alignment.
The Chair: Do either of the other witnesses disagree with what Dr Frantziou has just said?
Professor Colin Murray: Perhaps I may come in briefly. It comes back to the fact that within Article 2 there are two distinct obligations: a non-diminution obligation and a specific obligation with regard to the annex 1 directives. Article 13 of the Windsor Framework sets out that where EU law is specifically mentioned in the context of the Windsor Framework there is to be dynamic alignment with regard to those measures. The general non-diminution commitment relates to EU law as it existed at the end of the Brexit implementation period—December 2020. By contrast, when it comes to the six annex 1 directives, the key issue there is that they are specifically listed EU law and, under the terms of Article 13, Northern Ireland law needs to track developments with regard to that law. Are they replaced or are they upgraded? Does some aspect of EU law extend them? Northern Ireland law will have to take cognisance of that into the future.
Professor Brice Dickson: I have nothing really to add. I agree with what Professor Murray was saying about dynamic alignment and the necessity for Northern Ireland to keep pace with the amendments to the six directives in annex 1.
Q6 Baroness Goudie: It is nice to meet you all. In your view of the Dillon judgment, what action do you anticipate that the EU might take in response to the Supreme Court’s decision and the implementation of Article 4 and Section 7A of the withdrawal Act 2020? I have tried to summarise questions 6 and 7 so that you can give me the main points.
Dr Eleni Frantziou: They are very long questions. I am going to attempt to give a brief answer.
Baroness Goudie: Please do not repeat what you have said before; just give us the new information, if possible.
Dr Eleni Frantziou: There are very significant problems with the way in which the Supreme Court dealt with the concept of direct effect. Question 6 is on whether the Dillon judgment is consistent with the UK’s obligations. In that respect, the answer is no, not entirely. The context—Article 4 of the withdrawal agreement and Section 7A of the EU withdrawal Act—is quite significant because those provisions effectively incorporate the EU concept of direct effect. The EU concept of direct effect is, to my mind, incompatible with how I read the Dillon judgment. The CJEU has never supported an interpretation of provisions as being directly effective in certain circumstances. It is a binary concept: either a provision is directly effective—because it is clear, precise and unconditional—or it is not. It cannot be both. There are some category exclusions, and I will not tire you with them this morning, but essentially it is a binary classification.
The principal authority mentioned in the judgment is Demirel. Professor Murray already mentioned that there are some significant issues with a reliance on Demirel—a case concerning the association agreement with Turkey. In the context of the withdrawal agreement and Windsor Framework, this is uncharted territory. This is not an external relations agreement like any other, if it is to be considered an external relations agreement at all. The legal basis is constitutional—it is Article 50—so it is distinguishable from those cases. But, even if we were to take that much more difficult to meet threshold, the case states, at paragraph 14: “a provision” in an agreement. It is about the nature of a provision, not about a provision and what it refers to.
Similarly, the case of Van Gend en Loos—the classic case on direct effect—talks about the wording of Article 12 of the then EEC treaty: a provision that needs to be not a positive but a negative obligation. There are many other cases, such as Sevince for example, that are also cases about association agreements; they contain negative obligations and those provisions have been found to have direct effect. They are very analogous to Article 2. In Sevince, we are talking about a provision not to introduce further obstacles to free movement.
In the light of that, my reading of Article 2 is that it is a provision that meets the test for direct effect under EU law, in that it is clear, precise and unconditional in so far as it sets out a negative obligation not to diminish or reduce rights. To that extent, the obligation is obvious. Nothing needs to be done. In fact, all the UK needs to do is refrain from taking measures that reduce rights protection. So, under European Union law, I have very serious reservations about it.
It is also not uncommon for provisions of EU law to refer to other provisions, particularly in the fundamental rights context. There are ample examples in the case law of the CJEU. One is the Egenberger ruling, for example, where the court finds that the key obligation is in Articles 21 and 47 of the charter, and that certain non-directly effective provisions in that particular instance were not expressing the obligation in question but were merely making it more specific. The fact that the main obligation—in that case the provision of the charter—was directly effective was sufficient for the individual to be able to invoke it in court.
For me, the fact that Article 2 refers to the RSEO or to other provisions simply is not material to the determination of direct effect. The question is whether Article 2 on its own terms, as a provision of the withdrawal agreement and Windsor Framework, is directly effective in its own right. As I said, given the authorities that I cited, I think it probably is.
Is that significant enough and what can be done? Essentially, it is very significant, for the Commission in particular. The European Union, from the outset of the negotiations, had made it clear that Article 4 was intended to safeguard the unity of concepts such as direct effect and supremacy, and that both parties had agreed to apply those concepts in the same way. It is of course important because the withdrawal agreement applies to the member states too, so this interpretation would, in my view, not be possible in the member states, which would have to rely on CJEU case law. They would potentially have to make a reference if anything like that came before their courts.
I would expect some discussion in the Joint Committee in the first instance, and if agreement is not reached at that level then we would move to binding arbitration. If we were to go to the arbitration panel, the panel would have an obligation to refer questions of EU law to the Court of Justice. For my purposes, those questions are on the concept of direct effect, the role and scope of the victims directive, and the scope and role of the Charter of Fundamental Rights.
The Chair: We could have a long debate about the effectiveness of a reference, if it were taken, but let us move on to another issue. Baroness Foster has a question that is not on the list of questions.
Q7 Baroness Foster of Aghadrumsee: I declare my interests as a member of the board of Co-operation Ireland and the chair of InterTrade UK, and I used to be a student of Professor Dickson’s many years ago, which he may not want to refer to.
My question is about the rights and safeguards section of the Belfast agreement. That was in the multiparty agreement; it was not in the international treaty between the United Kingdom Government and the Irish Government. Given that—starting probably with Professor Dickson—would you say that the difficulties that have arisen in legal interpretation by the courts, as shown by Dillon in particular, have come about because judges and courts are trying to interpret what is essentially a political agreement, not a legal text?
In parentheses, on the DeSouza case that Professor Dickson referred to, the real kernel of the issue there is the consent principle and the fact that we are still part of the United Kingdom but we add on additional rights for people if they want to take up Irish citizenship as well. For unionists, that is the kernel of the issue. I would be interested to hear from Professor Dickson in particular.
The Chair: Professor Dickson, please advise your former student.
Professor Brice Dickson: And an excellent student she was as well.
I was not actually referring to the DeSouza case; I was referring to the Ní Chuinneagain case. It is similar to DeSouza, but I was not referring to that. Basically I agree with Baroness Foster that the rights, safeguards and equality of opportunity section of the Good Friday agreement is a political document. I do not agree that there is a difference between the multiparty agreement and the Anglo-Irish treaty agreement, because each annexes the other to it. I think this section applies to both of those agreements.
Basically—this refers a bit to the previous discussion and to what Dr Frantziou was saying—the reason why you cannot say that the provisions in the RSEO are directly effective is that they do not protect the rights that were being claimed by the applicants in the Dillon case. There is no EU law saying, for example, that you cannot have an amnesty, you cannot prosecute certain offences, or you cannot admit evidence that has been brought to a court against a certain person. It was the absence of those rights in EU law that really meant that the Supreme Court decided that there has been no diminution. You cannot have any diminution of a right that does not exist. To that extent, I think the Supreme Court’s decision was correct.
It might be challenged through the dedicated mechanisms, which we might come on to, or the specialised committee. It may get to arbitration, and there may be a reference to the Court of Justice of the European Union. But, at the end of the day, although it is an excellent document in many ways, I would be disappointed if a very vaguely worded document such as the Good Friday agreement was interpreted in this overly purposive way. It was never intended to have that effect. It had its effect in bringing about power-sharing and peace, and it was not intended to somehow get into the weeds of criminal law or deal with legacy issues.
The Chair: Professor Murray, I would like you to comment on that if you wish to do so. Professor Dickson mentioned the dedicated mechanism framework. How would you assess the effectiveness of the existing Windsor Framework structures for formalised engagement between the Northern Ireland Executive and the dedicated commissions? Could they be improved in future and if so, how? Perhaps you could roll an answer to that into any comments you wish to make on what we have just heard from Professor Dickson.
Professor Colin Murray: The dedicated mechanism is, if you like, a combination of the statutory rights and equality bodies in Northern Ireland. It takes in the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, as well as the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission. Together, these institutions make up the dedicated mechanism. Their task is, in many ways, to explain and unpack Article 2, but it is also to advise on its application and to institute litigation or proceedings if it believes that these measures are being breached. It has done so under Article 2 in the Northern Ireland Human Rights Commission’s case with regard to the Illegal Migration Act 2023.
One of the most important things here—it sheds light on some of your later questions, but it also relates directly to what we are discussing—is that the commissions raised considerable concerns around Article 2 in the legislative drafting stages of both the legacy Act and the Illegal Migration Act. I do not think that it is a failure of the commissions to be in transmit mode when it comes to trying to explain these obligations or how they work. But, although that evidence went before bodies such as the Joint Committee on Human Rights, it was not picked up on at the time when these measures were going through, and I do not think that any of them received adequate scrutiny from a Windsor Framework perspective.
On one final note, how does the dedicated mechanism connect into this international obligation? Under Article 14 of the Windsor Framework, there is a specific power for the dedicated mechanism to raise issues about the application of Article 2 with the Specialised Committee on the Implementation of the Windsor Framework, and for that to feed into the Withdrawal Agreement Joint Committee’s processes and, potentially, into arbitration.
The EU has repeatedly affirmed the importance of EU law in underpinning aspects of rights and equality in Northern Ireland. If the dedicated mechanism institutions raise this case as one that makes it much more difficult to use Article 2, it would be a mistake to treat it as us being in an improved state of EU-UK relations where no one might want to rock the boat by going to arbitration. It would certainly be a point of confrontation between the EU and the UK. This specific obligation under Article 2 is one that the UK took on deliberately and unilaterally in order to maintain these protections in the context of NI law.
Again, when it comes to the 1998 agreement, as Dr Frantziou said, that was not supposed to be read as a very specific set of hoops to be jumped through. It was setting out an area of law to which EU law had to be connected to make Article 2 applicable. Two very different ways of reading Article 2 are in play here.
The Chair: How effective has the dedicated mechanism framework been in practice so far?
Professor Colin Murray: As I mentioned, there has been an issue with some of the content of what the dedicated mechanism is doing being taken up in Whitehall and Westminster. In particular, the JCHR did not respond to the Windsor Framework points that were raised with regard to the Illegal Migration Act and the victims directive implications of the legacy Act. Those were major shortcomings. Some of these problems could have been addressed at a legislative stage had those institutions been paying attention to what the dedicated mechanism was doing.
Baroness Ritchie of Downpatrick: As a point of information, in our previous session, we addressed these issues. In fact, I put down amendments on them at that stage of the Illegal Migration Bill, separate from this.
The Chair: Let us move on to the next question.
Q8 Baroness Ludford: Thank you very much for coming to this session. We were discussing how a breach might be determined. If a breach of Article 2 was established, how would it be remedied? What might be the constitutional implications of disapplying primary legislation for a breach of Article 2?
Dr Eleni Frantziou: It would depend on the breach. If the breach was for a directly effective fundamental right then the remedy would be, first, consistent interpretation first—try to read, as far as is possible, domestic law in compliance with the EU standard. If that was not possible then it would be disapplication. This would mean individuals in Northern Ireland being in a different position, remedially, compared to individuals in the rest of the UK, where the disapplication of legislation is no longer possible.
That is a specific term under Article 4 of the withdrawal agreement. It is very clear that this obligation is provided for and was signed up to by the UK, and it is brought into UK law by Section 7A of the withdrawal Act. In that sense, it is an obligation undertaken by Parliament. Of course, there is a constitutional discrepancy between the rest of the UK and Northern Ireland, but it is something that Parliament has agree to.
If the obligation is not directly effective, the remedy is consistent interpretation—trying to read domestic law, to the extent that it is possible, in compliance with European Union law. If that is not possible then the only other means are the specialised committee discussions and then, if a party wishes to take it up, arbitration.
Baroness Ludford: Before I go to our other witnesses, if it was not directly effective and you were looking at consistent interpretation, could that lead to the different interpretation of an Act such as the Illegal Migration Act in Northern Ireland, as compared to in GB?
Dr Eleni Frantziou: This is a really interesting question. I do not think so, though perhaps it would depend on the court. If it came from the Supreme Court, it would apply, I would imagine, to the whole of the UK, but that may have to be specified in the judgment. You are right.
My reading of consistent interpretation is that it applies to the way in which we interpret legislation generally. That is how it has worked so far but, as I said previously, this is new, uncharted territory. The court could make a distinction between the way it interprets legislation with regard to Northern Ireland and with regard to the rest of the UK.
From the perspective of European Union law, consistent interpretation is a wide-ranging duty. It means that domestic courts are required to have regard to the whole body of domestic law in order to try to find a compatible reading. So it is not a thin interpretative obligation.
The Chair: Would statutory exceptionality not have to be written into statutory law to apply? There are differences in the law in various areas as it applies to Northern Ireland and Scotland, as compared to England and Wales, but that is entirely written in statute.
Dr Eleni Frantziou: As I said, my sense of this is that it would have to be made specific in a judgment. So far, it is absolutely true that consistent interpretation with European Union law has always applied to legislation as a whole. But, of course, that related to consistent interpretation while the UK was a member or in the transitional period.
Professor Brice Dickson: I agree with Dr Frantziou, by and large. I do not know of any case where the Court of Justice of the European Union has disapplied a law in only part of a member state. I know we have three different jurisdictions in the UK, but we are one state as regards the EU. I cannot see the Court of Justice saying that the Illegal Migration Act is unlawful in Northern Ireland but lawful in GB.
Professor Colin Murray: To follow directly from that point on EU law, it is not necessarily a matter of a statute being unlawful or struck down but whether or not it can be applied within that jurisdiction. What we have in Article 2 is essentially a higher baseline of rights protections for Northern Ireland than pertains in other parts of the United Kingdom. Brexit was like an outgoing tide of EU law—it was being swept away by this process—but some things remained. One of the things that remained through Article 2 was the application of these rights and equality protections in NI law, over and above the standard that is in place in Great Britain.
The Chair: Forgive me, but you say that this is a higher level of rights protections, but which rights protections does Northern Ireland have that are not supplied by UK law?
Professor Colin Murray: When the UK Government brought the Illegal Migration Act into play, they were specifically saying that they were getting rid of or sweeping aside the procedures directive, the qualifications directive and the Dublin III regulations. In the NI Human Rights Commission’s application case, all those issues and aspects of EU law were found to be still applicable in NI, creating a higher baseline. That case is yet to be decided as it goes through under the Supreme Court’s decision, but there are rights in play in exactly those sorts of scenarios that are different in Northern Ireland law from that which pertains in the rest of Great Britain, because, after Brexit, the law in Great Britain can diverge from those EU standards but Article 2 is designed to protect against exactly those sorts of diminutions.
Q9 The Chair: Let us move on to another subject now—a quite specific parliamentary issue. As you know, the United Kingdom Government have to meet Article 2 when creating new legislation, so we have the ministerial statement of compatibility, which is required by Section 19 of the Human Rights Act 1998. Does that offer an effective mechanism in the context of Article 2? If not, how might we improve it?
Professor Brice Dickson: I think the Section 19 provision in the Human Rights Act has worked relatively well. I know people often say that Ministers too easily state that proposed legislation is compatible with the ECHR and are then found later, through the courts, to have not been speaking the truth. But there are examples of Ministers basically saying to Parliament, “I am not sure whether this provision is compatible with the European convention”. I am thinking of the Animal Defenders International case regarding the Communications Act, which was eventually upheld in both the House of Lords and the European Court of Human Rights. That was because the courts felt that Parliament had given detailed consideration to the provisions in the Bill that it was looking at, and the statement made under Section 19 was not that relevant.
You could mirror Section 19 as regards the Windsor Framework. You could put into legislation a requirement that a Minister needs, when coming to Parliament, to indicate whether or not a provision is compatible with the Windsor Framework. It could act in a similar way to Section 19.
The Chair: Dr Frantziou, what do you say about that?
Dr Eleni Frantziou: I agree. I would add that Section 19 is not sufficient as a guarantee for Article 2 of the Windsor Framework because EU fundamental rights were materially much more extensive in certain areas than the ECHR is, particularly when it comes to equality, privacy, social rights and the right to an effective remedy. In those areas, the Section 19 statement will not do very much. We have also seen the Section 19 statement not working so well in precisely those areas that raise Article 2 issues, such as the Illegal Migration Act. The Minister was not able to make a statement of incompatibility and used Section 19(1)(b) instead.
However, I completely agree with Professor Dickson that a replication of Section 19 with respect to Article 2 of the Windsor Framework could work well if geared towards EU standards rather than ECHR standards.
Professor Colin Murray: Briefly, I believe that it would undoubtedly be useful, although not in itself sufficient, to protect these arrangements, especially in drawing the attention of parliamentarians and parliamentary bodies, such as the Joint Committee on Human Rights, to these rights issues that pertain to one part of the UK and are therefore apt to be overlooked in the context of legislation that purports to operate on a whole-UK basis.
The Chair: Lord Hain has been characteristically patient and has a question.
Q10 Lord Hain: Thank you for the evidence, which has been formidable. I want to switch to the political side of this, which follows the previous question. I record at the outset that I was Secretary of State for Northern Ireland between May 2005 and June 2007. How is the present ministerial decision-making stalemate at Stormont, particularly in the Office of the First Minister and Deputy First Minister, affecting the Assembly’s ability to scrutinise the operation of Article 2 of the Windsor Framework?
Professor Brice Dickson: I admit that there is a stalemate on many issues, but I am not aware of it being obvious in relation to the Windsor Framework issues, to be quite truthful.
Dr Eleni Frantziou: I will not comment on the Northern Ireland-specific aspects, if that is okay.
Professor Colin Murray: This provision was about a continuation of aspects of EU law. The Assembly and the Executive have had decades of experience of the competence restrictions that EU law imposed on their operation and the fact that some aspects of EU law continue to be in effect in NI. So there is no difficulty with the processes and familiarity with them. I suppose what the Supreme Court judgment does is potentially change the ambit of this, or create uncertainty around just what is now covered by Article 2, that potentially throws new questions into that mix. As Professor Dickson and Dr Frantziou have said, there will undoubtedly be a lot of litigation to work that out. Over the next year, as we finish this Assembly mandate, there might be additional questions about whether something really is within the scope of an Article 2 obligation.
Lord Hain: But you are not suggesting that the present stalemate—the paralysis of decision-making—is affected by this or will affect it.
Professor Colin Murray: As Professor Dickson said, I do not see this as being an area of law where there is a special effect from the issues of consociational governance that are affecting our Executive relations.
Q11 The Chair: In the light of the devolution settlement for Northern Ireland, what impact does Article 2 have on the United Kingdom Government’s power to legislate on excepted and reserved matters, as set out in the Northern Ireland Act 1998? Could you help us with that?
Professor Colin Murray: We have covered quite a bit of this ground. If we look at the Dillon case, you have the legacy Act 2023 as a piece of legislation applicable to the whole of the UK. You could also draw in the Illegal Migration Act 2023. It is covering specifically those areas of law that are in Westminster’s competence and their application within the jurisdiction of Northern Ireland. When that is in play, as I have indicated in my answer to earlier questions, Windsor Framework Article 2 sets up specific continuing EU law rights and obligations that do not operate in the other jurisdictions of the United Kingdom. It provides for that higher baseline of rights protections. In so far as any piece of legislation moves into the territory of those rights, the entire idea of non-diminution is that the UK Government have to confront a choice. They either have to decide that that legislation cannot be applied in Northern Ireland because Northern Ireland after Brexit is different in these regards from the other parts of the United Kingdom or it has to modulate or change its legislative arrangements to bring them into line with the requirements of the law in NI because that is the only way, if something is within the Article 2 obligation, to meet these standards and enforce a law on a whole-UK basis.
The Chair: Lord Dodds, do you want to come back on this point? It is very close to some of the things we have heard from you from time to time?
Lord Dodds of Duncairn: This is where the rubber hits the road, as it were, when it comes to applicability.
We were discussing earlier the disapplication of Acts of Parliament for the whole of the UK or for Northern Ireland. It is clear to me, as Professor Murray has said, that Northern Ireland is placed in a unique position in the obligations on the UK Government and the rights of Northern Ireland citizens. That is why I was interested in the question of dynamic alignment. How far does this go? That is one of the key issues in other areas, such as trade and all the rest of it, for Northern Ireland politicians.
I come back to Peter’s point about the Northern Ireland Executive and the difficulties within it on a range of issues—not across all issues but across significant ones. One of the things that has an impact, maybe not directly in relation to this area but will do so as we run up to the next election within the unionist community, is the idea that we are going to elect people to the Northern Ireland Assembly and, in the next general election, MPs to Westminster, who will not have any say whatever about any of this. These laws are made elsewhere, by others, in their interests, and we are affected by them tangentially. They do not take into account what people in Northern Ireland want to say. Marrying together the political and the legal position, it presents a complex and very difficult challenge for people in Northern Ireland as we go forward.
Q12 Baroness Ritchie of Downpatrick: My question is probably more for Dr Frantziou. You were referring to the interpretation of rights earlier in Article 2 by the Dillon judgment. Do you think that the narrow interpretation will impact on future legal cases where recognition of human rights and equality are required?
Dr Eleni Frantziou: I think so, yes. First, it will make it very difficult for individuals, as we were discussing earlier, to understand what rights they have under Article 2, particularly when these are not listed in the specific directives, and it will be very difficult for people to advise them. As has transpired already from this room of experts, we all have difficulty understanding and giving you clear guidance on which particular obligations of the RSEO will be directly effective or not. So that is one thing: uncertainty for individuals.
Secondly, there are litigation costs and the possibility of bringing those cases with a reasonable chance of success. The tenor of the judgment is quite clear; it is that not all aspects of the RSEO will be directly effective, if any are at all beyond those six directives. Certainly, there will be a dissuasive effect there.
On the role of the charter, which we discussed earlier, there was some hope, at least for individuals, that they would still be able to rely on charter provisions. As I said previously, the judgment does not specifically exclude the charter, in so far as it talks about the charter only in the light of the directive. Since the directive does not apply then the charter does not apply, and the threshold that it sets for the applicability of the charter is quite high. There, too, we will have a limiting effect.
The Chair: We are coming to the end of our time. Professor Dickson, do you have a brief closing comment?
Professor Brice Dickson: The impact of the Dillon judgment is that it brings clarity to the situation. We now know, for example, that the phrase ‘civil rights’ in the RSEO bit of the Good Friday agreement cannot and should not be interpreted as including all sorts of other rights such as migration rights. We will have to see what happens to the case that has been pended at the moment in Northern Ireland on that. But it brings clarity. It means also, for example, that people debating the Northern Ireland Troubles Bill, which is going through Parliament at the moment, will be clearer as to what they can approve of, safe in the knowledge that it will not breach EU law or the Windsor Framework.
Professor Colin Murray: On the concept of clarity, it also brings a lack of clarity because so much of this content is contained within obiter dicta statements and they range widely. If all were taken as read within the judgment, as Dr Frantziou has said, it would have a dramatically limiting effect on when litigation can operate under Article 2. That in itself brings its own uncertainties, because we will probably be looking to an extended period in which the EU is considering how to raise this under the joint committee, and under which the courts have to consider all these obiter dicta in litigation. Some of these comments throw the questions of what Article 2 means up in the air for the foreseeable future.
The Chair: Thank you very much. That is quite a coda. We have run out of time now and some of those questions will remain up in the air for the time being, at least until our report is produced.
I will now draw the panel element of the meeting to a close. I remind the witnesses that a verbatim transcript will be sent to you for correction. I thank you heartily on behalf of the committee for your evidence, which we listened to with great care and which has been very interesting.
