This statutory instrument is subject to the draft affirmative procedure, meaning it must be approved by both Houses of Parliament before it can come into force. It was laid before both Houses on 2 November 2020 and is due to be debated in the House of Lords on 1 December 2020

Background

The withdrawal agreement concluded by the UK Government and the European Union contains special arrangements for Northern Ireland in the form of the revised Protocol on Ireland/Northern Ireland.

Aimed at avoiding a hard border between Northern Ireland and the Republic of Ireland, the protocol provides that Northern Ireland will remain aligned to EU law in some areas. The UK Government has said that any solution in Northern Ireland “can only be lasting if it has democratic support”. Therefore, under the terms of the protocol and accompanying unilateral declaration, the Northern Ireland Assembly will be periodically asked to consent to those bespoke trading arrangements in the protocol for as long as they are in place.

Specifically, article 18 of the protocol states:

Within 2 months before the end of both the initial period and any subsequent period, the United Kingdom shall provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10 [of the protocol].

These regulations would insert the democratic consent process into domestic law by amending the Northern Ireland Act 1998. The first consent process will take place in late 2024 (the end of the ‘initial period’). It will be repeated every four or eight years depending on whether consent (if given) is given on a simple majority or a cross-community basis.

The consent mechanism

The mechanism through which consent will be provided is also set out in article 18 of the protocol and the unilateral declaration. In summary, the ‘default’ process will include the following steps:

a)    A vote to be held in the Northern Ireland Assembly on a motion, in line with article 18 of the protocol, that articles 5 to 10 of the protocol shall continue to apply in Northern Ireland.

b)    Consent to be provided by the Northern Ireland Assembly if the majority of the Members of the Assembly, present and voting, vote in favour of the motion.

c)    The Northern Ireland Assembly notifying the United Kingdom Government of the outcome of the consent process no less than 5 days before the date on which the United Kingdom is due to provide notification of the consent process to the European Union.

The regulations also provide for an ‘alternative process’, if, for example, the First Minister and deputy First Minister of Northern Ireland are not in office in the relevant time period. Full details are not replicated here for brevity, but are detailed in the explanatory memorandum to the regulations. The explanatory memorandum also provides further detail on dates upon which certain actions must be taken.

Simple majority versus cross-community support

The Government has stated that it is committed to fostering cross-community support for the consent mechanism. According to the provisions in the protocol, if the consent motion is passed by cross-community support then a further consent decision is required within eight years. However, if the motion is only passed by a simple majority, a further consent decision is required within four years.

Further, the unilateral declaration stipulates that should a motion pass on the basis of a simple majority, the United Kingdom Government will commission an independent review “into the functioning of the Northern Ireland Protocol and the implications of any decision to continue or terminate alignment on social, economic and political life in Northern Ireland”. The review will be required to deliver recommendations, “including with regard to any new arrangements it believes could command cross-community support”.

If the Northern Ireland Assembly resolves not to pass the consent resolution by a simple majority then Northern Ireland’s alignment with EU law will come to an end two years later. It would then be up to the UK-EU Joint Committee, established under the withdrawal agreement, to make recommendations to the UK and the EU on what should replace the Protocol arrangements.

Parliamentary Scrutiny

The House of Lords Secondary Legislation Committee considered the regulations as part of its thirty‑fourth report of session 2019–21, though it did not offer any criticisms or observations beyond detailing the substance of the regulations.

A House of Commons delegated legislation committee debated the regulations on 26 November 2020. Speaking for the Government, the Minister of State for the Northern Ireland Office, Robin Walker, said the regulations fulfilled a vital commitment to allow the people of Northern Ireland to consent to the arrangements that will affect them:

The Belfast/Good Friday agreement is built on the principle of consent. It was ratified by referendums in Northern Ireland and Ireland, and the agreement is crystal clear that any change in the constitutional position of Northern Ireland within the United Kingdom can come about only if the majority in Northern Ireland consents to that change. The vital importance of consent is recognised in the provision for alignment in the protocol to be disapplied if Northern Ireland’s political representatives conclude that it is no longer desirable. Embedding that recognition of consent in the protocol was intrinsic to its acceptance by the Government.

He added that the consent mechanism had been designed to encourage cross-community support, “giving the Assembly the opportunity to provide eight years of certainty to Northern Ireland’s businesses and individuals through cross-community agreement”. With regard to the compatibility of the regulations with the Belfast Agreement, the minister said:

I have heard arguments that this approach is somehow contrary to or not compatible with the Belfast agreement, and I do not accept that that is so. […] The principle of cross-community support set out in the Belfast agreement applies to internal matters for which the Northern Ireland Assembly is responsible. The consent mechanism, contained as it is in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU, an excepted matter in Northern Ireland’s devolution settlement. That means that the matter at hand falls outside the remit of the Assembly and outside the principle of requiring cross-community support to pass. We have taken the steps we have, with four versus eight years, to incentivise that support.

Responding for Labour, the Shadow Minister for Northern Ireland, Karin Smyth, said that her party had “real concerns” about the regulations, in particular that they were seeking to agree a process for those elected to Stormont to agree a voting mechanism “on a deal that we do not yet have”. As a result, she said no-one could yet say how articles 5 to 10 would affect customs and the transition of goods across the Irish border:

[W]e are agreeing a process today for consent to something that we do not know: the operation of articles 5 to 10 on customs and goods across the island of Ireland. I will not rehearse all the things that we do not know with only 36 days to go, but, as has been the case in the past four years, the lack of certainty and the way in which the delicately balanced unique circumstances of Northern Ireland have been treated does not bode well, and it is not acceptable for the Government to ask us to agree legislation without having agreed what the arrangements are in 36 days’ time.

Mrs Smyth also took issue with the way in which the Government had invoked the consent principle contained in the Belfast Agreement:

This SI deliberately invokes the carefully crafted principle of consent about the constitutional issue from the 1998 treaty, but it is a different mechanism. It is designed for a different purpose and it would have been better to have perhaps used different nomenclature. I know the Minister argues that the mechanism is different. It is passable by a majority vote, because one is part of an international treaty and one enacts something into domestic law, but, having linked the two for political expediency, retreating into legalese and hair splitting is not helpful to trust in the Government’s intent.

Further, she rejected claims by Government ministers made elsewhere (including in an article for the Belfast Telegraph (£)) that the consent mechanism would leave the future of Northern Ireland in its own hands:

Patently, that is not the case. In this negotiation between the UK and the EU, Northern Ireland has never been in control, and this statutory instrument simply allows Assembly Members to agree—or not—to what others have negotiated. The UK Government’s proposal to mitigate the impact of UK Government policy and future alignment—or not—with the European Union is also a UK Government political decision.

To reverse some of the damage to trust in relationships in the past four years, there has to be a more serious commitment by the UK Government to real democratic oversight of the entire protocol, within the context of the 1998 agreement, by the people of Northern Ireland.

Finally, Mrs Smyth also said that Labour was concerned about the potentially “destabilising nature” of the consent process. For example, she pointed out that a number of significant democratic events are due to take place during the period when Northern Irish institutions could be expected to consider the issue of the protocol, including elections to Stormont and a UK general election. Mrs Smyth argued that, against the backdrop of these events, the timetable for consent motions to be either accepted or rejected, and a potential “repeating [of] the circular and damaging debate of the last four years” on border controls, could create “too many opportunities for division”.

Responding, the minister said that Mrs Smyth had raised a number of important points. With regard to timing, he acknowledged the issue but said that there would always be some interaction and interplay with the electoral cycle, and thus it was right to default to a simple process. He added that the system allows for an eight-year process if there is cross-community support, which the Government wanted to support and incentivise. Mr Walker further added that the independent review process, should the consent mechanism pass with a simple majority, was further designed to support this aim as the review would have an explicit duty to propose recommendations which it believed could command cross-party support.

Read more

• House of Lords European Union Committee, The Protocol on Ireland/Northern Ireland, 1 June 2020, HL Paper 66 of session 2019–21
• The Institute for Government, ‘Northern Ireland protocol: consent mechanism’, 19 December 2019

Image by Dom0803 on Wikimedia.